Why does Puigdemont now have an opportunity?

MadridThe final stretch of the legislature will surely have more interest than one might have thought months ago, especially for Catalonia and Catalan politics. Obviously, Pedro Sánchez's government will suffer because it is very unlikely that it will manage to approve the budget bill it has again committed to presenting this year. And surely the Ceuta crisis still has a long way to go. But there is another goal that could be achieved during the coming weeks. It concerns the application of the amnesty law to Puigdemont and the other members of his executive who are awaiting the rulings that the Constitutional Court must issue on this matter. It is certainly true that the Supreme Court would never have applied the amnesty law on its own to the leader of Junts, but in this final stretch of the legislature there is a concatenation of circumstances that make what had until now been impossible seem plausible.

One of the most important factors has been the ruling of the Court of Justice of the European Union (CJEU) which supports the law by rejecting the doubts that the National High Court and the Court of Auditors had raised regarding its compatibility with essential principles of European law. It cannot be ruled out that if the Supreme Court sees any loophole that allows it to once again present a preliminary ruling request to the CJEU, it might do so. But in the same criminal chamber that handed down the convictions of the leaders of the 'Procés' who were tried in 2019, a desire has been spreading not to needlessly prolong a case that has already been going on for nine years.

The court that held the trial has suffered more than one vacancy due to retirement and no longer has the same president, Manuel Marchena, who did not force his continuity after the two terms that are the general rule. Now he is one among the magistrates, although he retains an undoubted authority among the members of the chamber. In any case, if the Supreme Court decides to bet again on a strategy that allows it not to consider the matter closed, it risks, after the resolution of European justice, being corrected by the EU Court of Justice. The ruling issued by this body last July was very clear in considering that the 'Procés' did not affect the economic interests of the Union and, furthermore, in establishing that the pardon for the leaders of the 'Procés' was not a "self-amnesty", but a path legitimately agreed upon to "reduce institutional and political tensions, as well as a scenario for reconciliation".

If this statement had not been so clear, the Supreme Court could have more easily extended the debate over the law and its application. But now it finds it more difficult, because over the coming weeks the next move will be the granting of the amparo (protection) to the leaders of the 'Procés' by the Constitutional Court. The Supreme Court did not apply the amnesty law to them because it considered that this rule did not allow pardoning those who had obtained an economic benefit from the crime committed, in their case that of sedition in medial concurrence with that of embezzlement. The expression "medial concurrence" refers to the fact that the diversion of public funds was the means to commit the main crime.

The Supreme Court's thesis was that personal benefit had occurred because they had financed the independence project precisely with public money and not with their own assets. The progressive majority of the Constitutional Court is clear that this is a forced and incorrect interpretation of the law, because there was no enrichment of the accused, nor was that the goal they were pursuing. It is worth remembering, on the other hand, that the criminal figure of sedition no longer exists in the Penal Code, revised after the 'Procés' case.

The Constitutional Court, in short, has been winning all the substantive battles to reach a situation that now allows it to take the definitive step in favor of the full application of the amnesty law. At the body of guarantees, they waited until the ruling of the European justice system to make decisions. On the 22nd, the amparo appeals of the pro-independence leaders will be debated for the first time, and the progressive group already has its strategy prepared. The first appeal to be examined will be that of the secretary general of Junts, Jordi Turull. The rapporteur of the case is magistrate José María Macías, who has always spoken out against the amnesty because he considers it unconstitutional. His proposal, which has already been known this Saturday, will be to reject the appeal, a minority position in the Constitutional Court, where there are five magistrates from the conservative sector and seven from the progressive group. Once it is confirmed that Macías's position is in the minority, the key date becomes October 5th, when the next plenary session of the body of guarantees will take place.

The amnesty path

The ruling in favor of the amparo for the leaders of the 'Procés' will arrive, ultimately, in this second plenary session. If Macías has resigned as rapporteur for this occasion, he will have been replaced by a magistrate from the progressive bloc. If he remains, he will have to do so to draft another resolution proposal in accordance with the majority criterion, even if he later votes against his own text. If some kind of delaying strategy by the conservatives were to occur, the response would be to vote, in the first place, on the appeal of Dolors Bassa, a ruling for which the president of the Constitutional Court, Cándido Conde-Pumpido, is the rapporteur.

The importance of the first ruling of the body of guarantees being favorable to the appeal lies in the fact that it will be the leading one, and it will mark the path for the others, establishing a common doctrine for the rest. In fact, it is possible that no further pronouncements will be needed. What is intended from the Constitutional Court is that the Supreme Court acts quickly in a manner consistent with the granting of the amparo and the recognition that the fundamental rights of the pro-independence leaders were violated when they were denied the application of the amnesty. It will be judge Pablo Llarena, as the investigating judge of the 'Procés' case, who will then have to decide whether to lift the arrest warrant against Puigdemont. But the final application of the pardon must be executed by the criminal chamber. Reasonably, the investigating judge and the chamber will have to coordinate to make their respective decisions. In this regard, an important point for the Supreme Court is that Feijóo has advocated for "turning the page" on the 'Procés' era.