When can Puigdemont return?

MadridThe ruling of the Court of Justice of the European Union on the amnesty was a very relevant step to achieve legal backing from Europe for the norm approved in the Congress of Deputies, as it is the first time it has ruled on the measure to end the criminal proceedings of the Procés. It has done so by endorsing the spirit of the legislator: the normalization of the political situation in Catalonia in favor of "reconciliation". However, what are the practical effects of this resolution? When will former president Carles Puigdemont be able to return? When will Oriol Junqueras and the former political prisoners cease to be disqualified?

Direct consequences

The cases directly affected by the CJEU's decision are that of the Court of Auditors, on the accounting responsibility of 1-O, and that of the CDRs of the National Court. These courts, which raised the preliminary questions to the European justice, will wait to be officially notified of the ruling before deliberating and making a decision, which should be to release from responsibility the leaders of the Procés in the Court of Auditors and the CDRs in the National Court investigated for terrorism.

The Supreme Court will not make a move: court sources confirm to ARA that they will not make any decision now because the preliminary questions resolved by the CJEU do not directly affect them. The Supreme Court, for now, has not asked the European justice anything and, therefore, does not feel alluded to.

Indirect consequences

Although the preliminary questions concerned the Court of Auditors and the National High Court, the CJEU's ruling does have a broader scope. Firstly, political, as the European justice's argument for endorsing the amnesty —that of "normalization" after an attempted secession by a member state's territory— fits perfectly with the intention of the Spanish government and the separatists to enact the law. Secondly, legal: the Constitutional Court had self-imposed a wait for European justice to resolve the appeals for protection filed by Puigdemont, Oriol Junqueras, and the rest of the imprisoned former ministers. Therefore, the favorable pronouncement smooths the way for the Constitutional Court to rule in favor of the leaders of the Procés.

Calendar

The last plenary session of the Constitutional Court before the holidays is next week, and it is ruled out that this issue will be addressed. Therefore, the calendar jumps to September, where two plenary sessions are scheduled for the beginning and end of the month. The first appeal to be resolved, in order of presentation, is that of Jordi Turull, whose rapporteur is the conservative José María Macías, who could try to prolong the start of the debate.

However, sources familiar with the court interpret that the progressive majority of the TC will find a way to force the discussion at the latest in the plenary session scheduled for the end of September or the beginning of October. When it becomes evident that Macías does not share the majority's opinion on granting the appeal for protection, the package of appeals will be studied by a rapporteur from the progressive sector, who will then draft a favorable resolution. In other words, this step, which is the truly decisive one for the amnesty of Puigdemont and Junqueras, is expected to occur upon returning from the summer holidays.

The key, the Supreme Court

But the judicial odyssey of Puigdemont and the rest of the pro-independence leaders does not end here. Once the appeals for protection are resolved, provided they are favorable to the sovereignists, the ball would pass to the Supreme Court, which, in accordance with the resolution made by the Constitutional Court, will have to decide whether to correct its initial decision to exclude from the amnesty the crimes of embezzlement for which Puigdemont and Junqueras are affected.

To do so, until now, the Supreme Court has put forward two central issues: on the one hand, it considers that the referendum affected the financial interests of the EU — an argument that has been deactivated by the CJEU — and, on the other hand, it interprets that the leaders of the Process enriched themselves personally because they did not pay for the 1-O from their own pockets and, therefore, saved money. This argument is the one that remains valid today and it is what we will have to see how the Constitutional Court deactivates if it upholds the appeals for protection of Puigdemont and Junqueras.

The unknown territory

The unknown, therefore, remains what the Supreme Court will do. There are three possible scenarios:

That the Supreme Court applies the amnesty to Puigdemont and the rest of the former ministers with speed: sources from the court support this option in the event that the rulings of the ECJ and the Constitutional Court leave no shadow of doubt that the crime of embezzlement in the case of the Procés must be rendered ineffective.That the Supreme Court keeps the matter in a drawer and lets time pass before deciding on the amnesty: it should be taken into account that there is no deadline obliging it to decide quickly and it could do as in the case of the demonstrator from Girona: last October the Constitutional Court approved his amnesty and the Supreme Court has not yet made a move. Referring a preliminary ruling to the CJEU again: since the European justice has only ruled on whether the amnesty affects the financial interests of the EU, the Supreme Court could decide to refer a new preliminary ruling regarding its interpretation of the crime of embezzlement. It could do so with the argument that the Constitutional Court's ruling does not convince it. This would be an unprecedented move that, until now, only the Court of Appeals of Seville has made in the ERO case. After being reviewed by the TC, it referred a preliminary ruling to Luxembourg because it considered that the annulment of the sentences of Manuel Chaves and José Antonio Griñán by the TC implied a "systemic risk of impunity". The date

Therefore, to the question of when Puigdemont will return, the answer is that at least we must wait until autumn. Taking into account, furthermore, that the Supreme Court has in its hands a decision with electoral effect: it is not the same for the Spanish president, Pedro Sánchez, whether Puigdemont can return before the Spanish elections or after, when there could be a change of government with the PP and Vox. The future of Junts and Esquerra also depends on this, as both parties foresee that Puigdemont and Junqueras will be their candidates again in the Catalan elections of 2028.