The “Proposal for an organic amnesty law for institutional, political and social normalization in Catalonia”, which the PSOE registered on Monday and which has the support of the political groups that will vote on the inauguration of Pedro Sánchez on Thursday, admits in its justification the exceptional nature of the amnesty for hundreds of people who have committed crimes related to the sovereignty process, for which they have been convicted, prosecuted or charged.
Unlike the legal text that the pro-independence parties presented in Congress two years ago, the future amnesty law does not name the specific court cases that are eligible for the clemency measure, but rather the crimes that will benefit from the legislative initiative.
The norm, which praises the 1978 Constitution as “a text comparable to the countries around Spain”, “which guarantees fundamental rights considered individually and respects the ideological and political rights of all”, must be applied within a maximum period of two months after approval by the Cortes. Since it is an organic law, it requires the support of the absolute majority of the chamber (176 representatives). Below we analyze the main content of the most controversial and contentious bill of the recent democratic period in Spain.
The scope of the law
The preamble to the text registered in the House of Representatives states: “This organic amnesty law Acts declared or classified as criminal offenses or as administratively or accountingly responsible conduct in the context of the consultation in Catalonia on November 9, 2014 and the referendum of October 1, 2017 (both were declared unconstitutional in the Constitutional Court judgments 31/2015 of February 25 and 114/2017 of October 17), carried out between January 1, 2012, the year in which the events of the independence process took place, and November 13, 2023. The amnesty extends not only to the organization and implementation of the consultation and referendum, but also to other possible crimes deeply related to it, such as: B. the preparatory acts, the various protest acts to enable their celebration or to show resistance to the prosecution or conviction of those responsible, including support, cooperation, advice or representation of any kind, protection and security of those responsible, as well as all “the acts, which are the subject of this law, which accredit a political, social and institutional tension that this norm seeks to resolve in accordance with the powers that the Constitution gives to the Cortes Generales.”
This legal definition of the circumstances eligible for amnesty fundamentally excludes the possibility that so-called “lawfare” cases (judicial prosecution of certain people because of their connection to the independence movement) can be investigated in the House of Representatives and, if confirmed, can be beneficiaries of the amnesty law be. Therefore, the political agreement signed between Junts and PSOE, which introduced the possibility of investigating cases of “lawfare” in Congress and applying the amnesty law to possible victims of this judicial persecution, is not provided for in the text of the future norm registered in Congress. All judicial associations complained that this written agreement between both parties violated the separation of powers.
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A History of Events That Forgets the Supreme Court Ruling
“Framed the facts the so-called independence process promoted by the political forces at the head of the institutions of the Generalitat of Catalonia (President, Parliament and Government) and supported by civil society and the political representatives at the head of many Catalan city councils, They used as a precedent the intense debate about the political future of Catalonia, which opened after the Constitutional Court’s ruling 31/2010 of June 28th. Aside from that, led over time to a series of intense and sustained mobilizations as well as pro-independence parliamentary majorities.. These events gave rise to an institutional tension, which led to the intervention of the judiciary, and to a social and political tension, which led to the dissatisfaction of a significant part of Catalan society towards state institutions, which has not yet disappeared and continues to be rekindled in the most diverse The legal consequences that they still have are particularly evident in the criminal area.”
This account of events avoids declaring, as does the judgment of the Supreme Court that judged these events, that the Catalan government and the pro-independence majority of Parliament promoted and approved laws that were and were held to be null and void by the Constitutional Court held a referendum, knowing that it was illegal, embezzling public funds and issuing an illegal declaration of independence, which was suspended a few seconds later. The Supreme Court wrote it this way: “Any unilateral secessionist movement in a society that has adopted the 1951 Convention on Human Rights and the 2010 Lisbon Charter of Rights is by definition an anti-democratic movement, because anti-democratic means destroying the foundations.” “a constitutional model for building an identity republic in which ideological and political pluralism is not guaranteed.”
The “legitimate” application of Article 155 of the Constitution, which is not mentioned by name
“During this period the Cortes Generales had a prominent role in shaping popular sovereignty’s response to this independence process. A role that reaffirms this organic law by recognizing its competence and legitimacy to assess the political situation and promote a series of solutions that must be offered in every context, in accordance with the general interest.
This ambiguously worded paragraph defends, without explicitly citing it, the application of Article 155 of the Constitution by the PP government – with the support of the PSOE and the approval of the Senate (the intervention of the central administration of the Generalitat of Catalonia and the dismissal of the Executive Director of Carles Puigdemont after the illegal referendum on October 1st and the unilateral declaration of independence). The application of this Article 155 meant, in effect, the recognition that Catalonia “has failed to comply with the obligations imposed on it by the Constitution and other laws or has acted in a manner that seriously prejudices the general interest of Spain”. In the following paragraph of the explanatory statement, PSOE and Junts admit that “with this amnesty law, the Cortes Generales are once again resorting to a constitutional mechanism”, such as the application of Article 155, so despised by the pro-independence movement. This strengthens the rule of law to provide an adequate response to more than ten years since the beginning of the independence process, in which the most acute moments of this crisis have already been overcome and it is time to lay the foundations to ensure coexistence for the future guarantee . So the preamble states that to end the illegal independence process, the constitutional mechanism of Article 155 was used and now, once “the most pronounced moments of the crisis have been overcome,” an amnesty law will be promoted, “another constitutional mechanism.” to eliminate all crimes related to the independence process.
An “extraordinary” solution for “coexistence and the general interest”.
The preamble to the bill contains at various times the justification for a rule that is considered “exceptional.” “With this organic amnesty law, the Cortes Generales They are turning again to a constitutional mechanism that strengthens the rule of law to provide an appropriate response more than 10 years after the start of the independence process, when the most acute moments of the crisis have already been overcome and it is time to lay the foundations to ensure coexistence for the future (…) With the consent of This Law is organic, therefore the legislator intends to exclude the application of the current norms to some events that took place in the context of the Catalan independence process in the interests of the general interest. is to ensure coexistence under the rule of lawand create a social, political and institutional context that promotes economic stability and cultural and social progress both in Catalonia and in Spain as a whole, at the same time serves as a basis for overcoming a political conflict“.
Critics of the future amnesty law claim that the main beneficiaries of the measure, the then convicted independence supporters such as the chairman of the ERC, Oriol Junqueras, or fugitives from justice such as Carles Puigdemont, have announced that they will try again. Therefore, what the law defines as “overcoming a political conflict” will not be possible. Neither the articles nor the explanatory memorandum of the law state that its beneficiaries will refrain from starting a new political conflict. However, it is noted that the way for this and any other claim must be paved within the national and international legal system. The bill highlights in a dozen places throughout the text the need to “improve, guarantee, achieve, promote and strengthen” coexistence in Catalonia, which is the main reason for the initiative.
There is a risk of exacerbating the problem in the trials of the defendants
“The adoption of this organic law is therefore understood as a necessary step to overcome the above-mentioned tensions and to eliminate some of the circumstances that cause the discontent that keeps a part of the population away from state institutions.” Some consequences are beyond this This could worsen in the coming years, as legal proceedings are carried out affecting not only the managers of this process (who are the least), but also numerous cases of citizens and even officials. “who perform essential functions in regional and local administration and whose prosecution and eventual conviction and disqualification would lead to a serious disruption in the functioning of services in the daily life of their neighbors and ultimately in social coexistence.”
The argument put forward by the drafters of the law to justify an amnesty for certain criminals is that it would be much worse for coexistence in Catalonia if these people had to go to prison as a result of their convictions, which in turn would lead to a recidivism in the criminal proceedings they had committed have opened. . The government of Pedro Sánchez already tried in the last legislative period to avoid these criminal consequences for those accused in the “Procés” by reforming the penal code, which abolished the crime of sedition and cheapened the crime of embezzlement. But the courts interpreted the embezzlement reform differently and maintained the penalties for those responsible.
All paths are legitimate except one-sidedness
“It must be borne in mind that there is no place in our constitutional system for a model of militant democracy, that is, for a model in which not only respect but also positive commitment to the system is prescribed.” The goals to be pursued in the constitutional framework are diverse. Despite it, All paths must run within the national and international legal system“.
The PSOE wanted to insert a paragraph in the text that represents a kind of legal obstacle to unilateral measures that could be taken in the future by the Catalan government, whose main leaders, past and present, have claimed their right to do what is in the Constitution was repealed and that these politicians continue to declare themselves legitimate. Although in this paragraph they indirectly admit that defending and even promoting the independence of a territory is legal in Spain, it must be done in accordance with “the national and international legal system”.
Defending the Constitution that so rebukes the independence movement
“Since 1978 Spain has a constitutional text comparable to that of the countries around us, which guarantees fundamental rights considered individually and respects the ideological and political rights of all, and which imposes on public authorities the obligation to interpret the norms relating to fundamental rights and freedoms in accordance with the Universal Declaration of Human Rights and ratified international treaties and agreements , as recognized in the Constitution itself. According to this framework An amnesty law can only be based on the solidity of the democratic system, which thus demonstrates its capacity for reconciliation through a sovereign act of the Cortes Generales., whose legitimacy rests on two pillars of different nature: on the one hand, on the constitutionality of the measure and, on the other hand, on the need to address an exceptional situation in favor of the general interest and to bet on a future of understanding, dialogue and negotiation between different political, ideological and national sensibilities . A society that wants to make progress from a democratic perspective must be able to promote coexistence, dialogue, respect and ultimately understanding between different democratic political positions and demands and include it among its priorities (…) And The fact is that … Consistency with the European Convention on Human Rights and the European Charter of Fundamental Rights, it is necessary to remember that the Spanish Constitution of 1978 enshrines political pluralism as one of the highest values of our legal system (Article 1), configured the party politicians as a channel for expressing the will of the people and as a fundamental instrument of political participation (Article 6), the principle of legality, legal certainty and the prohibition of arbitrary action by public authorities (Article 9) and guarantees the fundamental right to freedom of belief (Article 16) as well the right to freedom of expression and information (Article 20), the right to peaceful assembly and demonstration without weapons (Article 21) and the right to organize (Article 22).”
During the processing of the text of the Catalan Statute adopted by the Catalan Parliament in 2006, the House of Representatives amended some of its articles with a tag linking the application of the various measures to the provisions of the Constitution. Examples: “Catalonia’s self-government is based on the constitution; the Spanish Constitution recognizes in its second article the national reality of Catalonia as a nationality; Catalonia, as a nationality, exercises its self-government in the form of an Autonomous Community, in accordance with the Constitution and this Statute, which constitutes its basic institutional norm; the powers of the Generalitat emanate from the Catalan people and are exercised in accordance with the provisions of this Statute and the Constitution…” In this way, the legislators of the time tried to overcome the obstacles that the Constitutional Court could pose. Nevertheless, the 2010 ruling found 14 of its articles unconstitutional. The preamble of the future amnesty law contains numerous references to the current Constitution and its validity, as well as to the fact that the future norm, which will benefit all independents pursued by the sovereignty process, is based on the solidity of a democracy whose fundamental pillar is the Constitution itself, “which establishes the obligation for public authorities to interpret the norms relating to fundamental rights and freedoms in accordance with the Universal Declaration of Human Rights and ratified international treaties and agreements.” A support for the constitution from which the Junt negotiators have assumed, one Party that has traditionally attacked the Basic Law in Spain and that has actually promoted the independence challenge in a clear violation of this norm. The text of the amnesty agreed by PSOE and Junts cites the Constitution in the twelve pages of the explanatory memorandum and with different formulas on almost 40 occasions to explain that the values that it defends are those that inspired the writing. of the Amnesty Act or how the new regulation fits into the limits of the Basic Law.
Reform of the Criminal Code to restore amnesty as a reason for extinguishing responsibility
“First Amendment. Article 130 Section 1 of the Penal Code is amendedwhich is written with the following tenor:
“1. Criminal liability expires:
1. For the death of the prisoner.
2. For compliance with the sentence.
3. For the final remission of the penalty in accordance with the provisions of Article 87, paragraphs 1 and 2.
4 For amnesty or pardon.
5. For the forgiveness of the injured party if the offenses involved are minor and can be prosecuted at the request of the injured party or the law so provides. Forgiveness must be expressly granted before the sentence is imposed. For this purpose, the sentencing judicial authority must hear the perpetrator before pronouncing the verdict.
In the case of crimes against minors or people with disabilities who are particularly in need of protection and which eminently affect personal legal interests, criminal liability does not expire through the forgiveness of the perpetrator.
6. By prescribing the crime.
7.º By ordering the punishment or security measure.”
With this additional regulation, the legislature is trying to close the possible legal gap that could threaten the initiative. Congressional lawyers signed an explanatory memorandum to the amnesty law presented in 2021 by the independence supporters and not edited, considering, among other things, the initiative unconstitutional because the Criminal Code had deleted amnesty from the article. It was noted that the reasons for this Extinction of criminal liability has been established. Now it’s reappearing. In addition, the text of the future standard cites many laws in force in Spain, such as the Criminal Procedure Code, which provides for an amnesty and has not been repealed in the most recent democratic phase.
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