Who remains to be amnestied after the ruling of the ECJ?
The condemned by the Court of Auditors and those prosecuted for terrorism are the first who should benefit from it
BarcelonaThe Court of Justice of the European Union (CJEU) has endorsed the amnesty law this Thursday, thereby dispelling the main doubts of Spanish judges who have so far resisted applying it. The Grand Chamber of the Luxembourg court has resolved the preliminary questions raised by the Court of Auditors – concerning the 35 former high-ranking officials of the Generalitat investigated for the financing of the 1-O and external action – and by the National High Court, in the case against the CDRs in Operation Judes. The ruling comes two and a half years after the law came into force, and could be the definitive breakthrough for dozens of cases that have been stalled for months – some, years – awaiting a response from Luxembourg.
Who remains pending?
According to data collected by Alerta Solidària, updated with the two years of the norm's validity, of the 1,544 cases analyzed by the entity – among protesters, activists, politicians, and police officers charged in the "Procés" – 664 were eligible for amnesty – many cases had been archived over time. Of these, there are still 257 unresolved, either because they were rejected outright or because the courts have not yet ruled.
One of the cases that depended directly on the European ruling is that of the twelve CDR members charged in the National Court for Operation "Judes", accused of terrorism, with requests for up to 27 years in prison for allegedly planning actions against the headquarters of Catalan institutions in 2019. The investigation referred the case to Luxembourg with a preliminary ruling on whether pardoning a terrorism offense conflicted with European regulations. Now the CJEU has responded that it does not. Therefore, Eduard Garzón, Esther Garcia, Sònia Pascual, Queralt Casoliva, Germinal Tomás, Alexis Codina, Jordi Ros, Joaquim Delgado, Xavier Buigas, Ferran Jolis, David Budria, and Clara Borrego should be exonerated from any criminal responsibility.
The other major bloc affected is that of the 35 former high-ranking officials of the Government – including Carles Puigdemont, Oriol Junqueras, and Artur Mas – who the Court of Auditors sent to trial for "1-O" and the external action of the Generalitat. The Public Prosecutor's Office is asking them for 3.1 million euros and the prosecution, exercised by Societat Civil Catalana, 5 million. The CJEU has denied that the amnesty harms the economic interests of the EU and all 35 should be amnestied.
There are two preliminary rulings pending analysis by the CJEU. The one presented by the High Court of Justice of Catalonia (TJSC), which affects former Government officials Lluís Salvadó and Josep Maria Jové, has not been analyzed. Nor has the one presented by criminal court 3 of Vilanova i la Geltrú, which deals with the case of a demonstrator, been analyzed. What happens in these two cases? The spokesperson for Alerta Solidària, Martí Majoral, assures that in the Vilanova preliminary ruling the court "questioned the entire law" even though the case that affected it was only a crime of disobedience by a person wearing a yellow ribbon at a polling station in 2019. The case has already been validated by the TC, he assures. "If terrorism can be pardoned, disobedience can be pardoned." At the same time, he maintains that the CJEU's ruling on the Court of Auditors case "is applicable to the TSJC case because the doubts were the same," regarding the assumptions of embezzlement, whether it affected EU law in the financial interests of the European Union.
Between demonstrators and activists, there are 164 unresolved cases according to Alerta Solidària: 75 denied and 89 pending resolution. The entity insists that many of these cases are not blocked by an express denial, but by the simple inaction of the courts, which the law did not foresee: theoretically, resolutions were to be resolved within short deadlines.
To fully understand the impact of pending cases, Montserrat Pi, professor of European Union law at the UAB, clarifies that "the Court of Justice does not rule exactly on domestic law or on the case", but "on the interpretation of Union law". Pi emphasizes that this decision "is binding" for the party that raises it, but also has "effects erga omnes", that is to say, "links all courts". If the doubts are the same, they are resolved by the judgment even if there was no express request from a court. In the case of the two that the CJEU has not yet resolved, Pi acknowledges that "there is great discretion for the court", which could wait to receive a specific response to its doubts – even if they are already resolved in Thursday's judgments.
The contrast of figures
Beyond specific cases, the counts of who can benefit from the amnesty are diverse. The State Attorney General's Office calculated, when the law came into effect in 2024, that 486 people could benefit, distributed across 82 proceedings – among them the 1-O, the Tsunami Democratic and the CDRs. This figure is significantly lower than that of Alerta Solidària and its 664 cases, and even further from the calculation by Òmnium Cultural, which at the time had estimated 1,616 possible beneficiaries.
The discrepancy reflects different methodologies – the Prosecutor's Office only counts criminal proceedings open at the time of the count, while Alerta Solidària and Òmnium add administrative sanctions and cases already dismissed or acquitted.
Who has already received amnesty
Despite the blocking of some courts, the law has indeed had scope these two years: a total of 403 people – including activists, politicians, and police officers – have been amnestied. Almost all the prosecuted police officers have been amnestied: 158 agents have seen their criminal liability extinguished – 89 from the National Police, 62 from the Civil Guard, and 7 from the Mossos d'Esquadra – with the sole exception of the 4 agents who fired the rubber bullet that caused Roger Español to lose an eye, who will be tried this autumn. Alerta Solidària insists that, in the case of police officers, amnesty has been applied almost automatically.
Among demonstrators and activists, out of the 345 cases that the entity considers amnestiable, 181 already have amnesty granted – a little more than half. And among politicians and public officials, 64 have already been amnestied and 93 remain, including the 35 from the Court of Auditors or the leaders of the 1-O who are in the Supreme Court such as Carles Puigdemont, Oriol Junqueras, Dolors Bassa, Raül Romeva, Toni Comín, and Lluís Puig.