The TC will hold the first debate on the amnesty for the leaders of the Procés on September 22

MadridThe Constitutional Court (TC) will hold the first debate on amnesty for the leaders of the Procés on September 22, as ARA has learned. It will be within the framework of the amparo appeal filed by the former minister and now general secretary of Junts, Jordi Turull, whose rapporteur is magistrate José María Macías. With this first discussion, the Constitutional Court will begin deliberations that both the Spanish government and the independence movement hope will end with resolutions favorable to the amnesty for former president Carles Puigdemont; ERC leader Oriol Junqueras, and the rest of the convicted or processed former ministers. In fact, this is the step that was already foreseen for the autumn, after the Court of Justice of the European Union (CJEU) concluded that the expenses related to the 1-O "do not affect the financial interests of the European Union. This week there was also a plenary session of the Constitutional Court, but they considered that they did not have enough time to address the issue before the holidays.

What will this first debate on September 22 involve? Initially, it will be the first time, after having endorsed the constitutionality of the amnesty, that the TC discusses the Supreme Court's decision not to apply the law to the leaders of the Procés. The high court used basically two arguments not to do so: on the one hand, the fact that the attempt to secede Catalonia could affect European finances and reduce Spain's contribution to the EU – a justification that the CJEU has dismantled –; and, on the other hand, that the crime of embezzlement related to the 1-O implied a personal benefit for the accused: although no money was put in their pockets, they interpret that the fact that they did not pay for the referendum with their own funds meant they saved money; ergo they enriched themselves.

Having made this interpretation of embezzlement, the Supreme Court seized upon the wording of the amnesty law to exclude the instigators of the 1-O: the norm states that acts aimed at convening the referendum are amnestied, including the crime of embezzlement, but "provided that there has been no intent of enrichment." To exclude Puigdemont and the rest of the imprisoned former ministers from the scope of the norm, the Supreme Court argued (through the aforementioned justification) that they had indeed enriched themselves personally. Now, what the Constitutional Court will do is rule on whether this interpretation made by the Supreme Court has violated the fundamental rights of the leaders of the Procés.

The phases of the debate

The discussion that will begin on September 22 will proceed as follows: first José María Macías, the rapporteur of Jordi Turull's amparo appeal, will present to the other members of the Constitutional Court a draft of the ruling with his opinion. Subsequently, it will be discussed in the chamber and, if Macías's opinion does not gather the majority of the court, the rapporteurship will be handed over to a magistrate who is in tune with the majority of the TC members.

According to calculations by knowledgeable sources consulted, the Constitutional Court could rule at the latest in the second session of October, towards the end of the month, and would then resolve in a kind of package the amparo appeals of the rest of the leaders. That is to say, the discussion on the Turull case would serve as a mold for the rest. If the TC sides with the independentists, the ball would return to the Supreme Court's court, which theoretically would have to implement the TC's ruling. This Monday, precisely, it was the Court of Accounts' turn: after the CJEU, it has decided that it will not immediately apply the amnesty and will give a period of ten days to all parties to express their views on the origin of the appeals for the 1-O before deciding.

The violated rights

The key is the small print of the resolution that the Constitutional Court will issue, since per se the TC theoretically has limits when it comes to intervening in the Supreme Court's interpretation of ordinary legislation. In other words, normally the Constitutional Court assesses through external review whether there has been a violation of fundamental rights, while it is up to the Supreme Court to establish the doctrine on the application of laws. However, legal sources consulted admit that this is a more or less on-paper division of labor, and that in practice the boundaries are unclear and lead to clashes between jurisdictions.

In the case of the leaders of the Process, they have basically alleged the violation of two fundamental rights to the Constitutional Court: the principle of criminal legality and the right to effective judicial protection. Broadly speaking, Puigdemont and the rest argue that the Supreme Court's justification for not applying the amnesty to them is an "extravagant, unforeseeable and analogous" interpretation. They urge the TC to correct this to ensure there is no discrimination before the law and that the pro-independence leaders are not punished with an interpretation of the embezzlement crime that was not previously foreseen.

Furthermore, in the case of Puigdemont and the exiled individuals, it is warned that there is also a violation of the right to freedom of movement due to the continued existence of the arrest warrant in the State; and in the case of already convicted ex-prisoners, such as Junqueras, it is specified in the amparo appeals that there is a violation of the right to political participation because they cannot stand for elections. It will therefore be necessary to see if the TC agrees with them or not and, above all, in what terms it does so regarding the violation of this list of rights.

The majorities within the Constitutional Court

So far, the TC has upheld the constitutionality of the amnesty in all appeals that have reached it. A majority of six magistrates, considered to be from the progressive sector, have done so, while four members categorized as conservative have opposed it. However, neither José María Macías nor Juan Carlos Campo participated in these discussions. The former was challenged and removed from the debate because in 2024 he had been a member of the General Council of the Judiciary, which had issued opinions contrary to the constitutionality of the amnesty; while Campo, former Minister of Justice under the PSOE in 2021, signed the pardons for political prisoners and declared that the amnesty route was unconstitutional.

Now, however, both Campo and Macías will participate in the debate on the appeals for protection of the leaders of the Procés, thus bringing the total to twelve magistrates. Why can they now make a statement? The plenary session of the TC rejected the challenges on this occasion because it considered that the subject of the debate is different. It is no longer about the constitutionality of the amnesty, but about the Supreme Court's interpretation of embezzlement.

Can the fact that the twelve magistrates are now voting change the court's majority? The consulted sources believe not, as they expect the former minister to join the progressive bloc and Macías to join the conservative bloc; therefore, the difference of two votes in favor of applying the amnesty would be maintained. A prediction that would only be dismantled if Campo joined the conservative bloc and the president of the court, Cándido Conde Pumpido, were forced to use his casting vote in favor of the amnesty if he wanted to rule in favor of the leaders of the Procés.