Laura Díez: "There are many people from Madrid who also want to turn the page on the Process"

BarcelonaLaura Díez (Barcelona, 1969) is a professor of constitutional law at the University of Barcelona and has been a member of the Constitutional Court since 2023. She speaks to ARA following a key decision regarding the amparo appeal of former minister Dolors Bassa, which is expected to trigger the full application of the amnesty by the Supreme Court.

If you had to explain to someone outside the legal world why the amnesty is constitutional, what would you tell them? When it was initially proposed by the sovereignty movement, it was said from Madrid that it had no place within the Constitution.

— The amnesty law is not exclusively a matter of the Catalan process. Amnesty exists in many EU countries, such as Germany, Portugal... And the CJEU itself has clearly stated that it has a place within European regulations. We must normalize that there are certain, very specific moments in the history of countries when it is necessary to be able to amnesty crimes that have been condemned. Nobody disputes that there were crimes in Catalonia that the Supreme Court condemned, but due to a political decision by the Cortes Generales, it has been considered that the sentences had to be pardoned with the objective of general interest. The key to amnesties is this, that there is a general interest; it can never be a decision for one person.

Does the fact that the decision was not taken unanimously make it lose legitimacy and solidity?

— Sentences are made by majority or unanimity, and the legitimacy is always the same. It is indisputable. The CJEU has also finished ratifying that our decision was the correct one.

Why did they decide to include an explicit order to the Supreme Court to apply the amnesty in the latest resolution regarding former minister Bassa? Were they afraid it would not comply with the Constitutional Court's resolution?

— What is being said to the Supreme Court is that it should not reopen any case, but rather apply what the Constitutional Court believes should be the case, which is that embezzlement must be amnestied. Therefore, we considered it appropriate and much more direct for the ruling to state it explicitly. But we had no doubt that the Supreme Court would comply with the law and the Constitution.

Do you think the Supreme Court overstepped in its interpretation of embezzlement so that the amnesty would not be applied quickly?

— I have no doubt that the Supreme Court applied the amnesty law as it deemed appropriate. We never interfere in how the Supreme Court or any other court interprets the law. But there is a red line, and that is when this interpretation of the law is illogical and irrational. The Supreme Court crossed that red line and we told it that it was not valid.

What is the reason behind the fact that magistrates who have experience in the interpretation of criminal law make this illogical interpretation? Is there a political intentionality?

— What we have done in this case is no exception. I am sure that the Supreme Court rules in accordance with the law and in certain cases, like this one, sometimes it does not rule in accordance with the Constitution, and the Constitutional Court has done its job.

Following the decision they made, the Supreme Court, specifically magistrate Llarena, has withdrawn the arrest warrants for Puigdemont, Comín, and Puig. However, the criminal chamber of the Supreme Court has not yet closed the case. Do you believe that Puigdemont could still return calmly now?

— I do not know if I could return calmly or not. Judge Llarena himself said that the decision to lift the arrest and surrender warrant could change at any moment. The decision can change until there is an amnesty. It is not predictable, but Judge Llarena himself says so. There is still one step missing, which is to declare the amnesty.

Given that there is an election called, should one hurry to make this decision before the deadline for the lists closes?

— The Supreme Court is aware that the law requires the amnesty to be applied as quickly as possible.

You decided to wait for the CJEU ruling on a preliminary question from the Court of Auditors, even though it was not directly linked to the cases the Supreme Court had. Why did you decide to do it that way? Some say it was to prolong Pedro Sánchez's term.

— The decision had nothing to do with any legislature. The Constitutional Court is fully aware of the impact its resolutions may have and the acceptance they may receive. That it be attempted to be done as quickly as possible, but also that it be issued at the opportune moment so that this ruling can be applied. We considered it more prudent to wait for the CJEU to rule on whether there was an effect on the interests of the EU, which was one of the things the Supreme Court argued to not grant the amnesty.

The Constitutional Court has played a key role in unblocking the effects of the amnesty. How does this square with what it did during the 'Procés', with a position favorable to the interests of the State government against the one occupied at that time by the Generalitat?

— The colleagues who were at the Constitutional Court at the time of the Process applied the Constitution.

In the case of the amnesty, they use arguments in favor of reconciliation or the general interest to say that it has a place within the Constitution. Do you believe that at that moment the Constitutional Court, taking into account the situation of political tension that existed, could have played a different role by also appealing to this type of argumentation?

— The argument for reconciliation is an argument, as you have just said very well, political, ideological. The Constitutional Court does not engage in politics.

In this case, it has done so. It has appealed for reconciliation to say that the amnesty has a place within the Constitution. That they endorse the amnesty has to do with a very specific political context.

— But now the law says so. In other words, as a Constitutional Court we have an amnesty law approved by the sovereign people, which considers that the public interest of reconciliation is sufficient to grant the amnesty. What we do is receive this law and see if there is indeed a general interest behind it. That is why we have said that the amnesty law is constitutional. At the time of the Process, the Constitutional Court did not have any law on the table that told it that it had to reconcile, that the path was not the judicial one. What it had was a series of actions that were being carried out from a specific autonomous community which, if you compared them with what the Constitution said, were not constitutional.

Do you think the Constitutional Court could have played a similar role here to the one the Supreme Court of Canada had?

— The situation in Canada was very different. It said that a referendum that had been proposed at that time in the country had to have a series of characteristics in order to have a place within the Constitution.

And in the Spanish case, there is no room for a referendum on independence in Catalonia.

— Exactly, the interpretation made by the Constitutional Court in that case, and which we must respect because it was made legitimately, is that the referendum, as stated in the current law, compared to the Constitution, is not acceptable for an autonomous community, but rather it must be for the entire territory.

And do you think this interpretation will always remain like this?

— Always is a very harsh word. That is to say, the truth is that we are not considering it right now. We have already talked enough about the Process at the Constitutional Court, and when the case comes up now or many years from now... Things do not necessarily have to be forever.

And in the case of the interpretation that the TC made of the Statute, do you believe it was correct?

— I was not at the Constitutional Court, and I was at the Generalitat working on the reform of the Statute. The Constitutional Court ruling says what it says. I understand that it was a trigger for many other things, many expectations had been placed on it and it was a blow. But it was a possible interpretation and the one we must apply now. I myself do so every time I make a ruling.

They have pending to resolve regarding Catalan, whether the Parliament's law that does not impose any specific percentage in Spanish is constitutional.

— The issue of language is delicate, it awakens different sensitivities, not only within Catalan and Spanish society, but within the Constitutional Court itself. One must be careful, and see the options that the proposals have to emerge and the repercussions they may have in the territory. It remains to be seen next year.

Why is it so complicated? In Catalonia there is a consensus, at least until now. Parliament passed a law stating that there should be no percentages in schools. The Constitution says nothing concrete about this.

— Indeed, it says that there are co-official languages and little else. It is a delicate subject. We must not lose sight of the last ruling issued by the Constitutional Court regarding communications in Basque at the municipal level: what was interpreted by the majority of the TC was that it was necessary to double the languages, Spanish and Basque. I issued a dissenting opinion because I considered it was not appropriate.

Given this previous example, it means that right now there would be no sensitivity to issue a resolution favorable to Catalan.

— I wouldn't dare say that. Simply that, taking into account the discussion that took place regarding the last ruling, I believe we will need some very broad and very unhurried discussions.

Could this case be replicated in the town halls of Catalonia?

— Exactly. But I want to make a clarification in this case. Basque is not Catalan. It is a very complex language and, furthermore, the percentage of people who speak it is much lower than the percentage who speak Catalan in Catalonia. One of the things that must be valued is precisely this: the capacity that people may have to understand a language.

What is the climate that, as a magistrate of the Constitutional Court, you experience in Madrid? At a time when the Spanish government is even speaking of an operation to overthrow the government.

— The truth is that at the Constitutional Court there is no atmosphere of lawfare, if it even exists, which I do not believe. Spain has a Constitution and a law that is applied.

Do you believe that during this legislative term a kind of judicial coup d'état has taken place, which is what some sectors of the PSOE are claiming?

— There has been no judicial coup.

Has it been difficult for the Constitutional Court to explain its favorable position on the amnesty in Madrid?

— In most of Spanish society, there is a great deal of understanding. The tension that may exist in a city or in some media outlets does not represent what is happening throughout the State. I know that many people in Madrid understand perfectly well what the situation was and also want to turn the page. The amnesty law says that there is a need for normalization in Catalonia, but also a general interest throughout the State. There is no doubt that it is being understood that it has worked.

I also wanted to address the issue of housing, because there are elections and it is one of the fundamental topics. You have declared the state housing law constitutional. Is there constitutional room to intervene in the rental market?

— In the entire sphere of economic and social rights, within which are housing and the right to property, a very wide margin must be given to the legislator. Obviously, if there were a law that said all apartments must be put up for rent and nothing charged for rent for 50 years, there are red lines. But if they are not crossed, the one who has the final say is the sovereign people and, therefore, the legislator.

The Supreme Court has suspended the right to vote for Spaniards who have accessed nationality via the Democratic Memory Law.

— The ball is in the Supreme Court's court. For now, it has provisionally suspended the possibility of these people voting, but this does not mean that there will not be a subsequent ruling that ratifies this position. What is clear is that the Constitutional Court cannot intervene in this matter right now.