The bill agreed by the PSOE and its partners provides for an amnesty for crimes and administrative and accounting obligations related to the independence consultations held in Catalonia on November 9, 2014 and October 1, 2017. The measure also covers acts committed between 2012 and today that consist of “demanding, promoting or seeking the secession or independence of Catalonia”. Possible remedies against the law do not suspend the application of the law, but the courts, which have two months to apply the regulation once it comes into force, may raise questions of unconstitutionality that delay the effect of the clemency measure. However, once the regulation comes into force, former Generalitat President Carles Puigdemont will be able to return to Spain without fear of arrest, although it may take some time before the case against him is filed with the Supreme Court.
Who benefits from the amnesty? The law will benefit nearly 400 people, according to its supporters, including politicians and civil servants, citizens charged in the unrest following the 2019 ruling, and police officers. The amnesty includes those prosecuted for the 9-N 2014 consultation promoted by the government of Artur Mas, as well as those for the preparation of the 1-O 2017 referendum and for the clashes that followed the ruling of the Colonel Registered by the Court of Justice in October 2019, criminal prosecution will also be granted for acts committed between 2012 and today that are not directly related to these consultations but consist of “demanding, promoting or seeking the secession or independence of Catalonia”. The law therefore covers both the disqualification sentence that Oriol Junqueras and other members of the government who have been indicted before the Supreme Court still have to serve, as well as the trial against Carles Puigdemont and the former councilors who fled with him to Belgium. In addition, no case will be opened against the former high-ranking officials of the Generalitat who are accused of preparing the illegal referendum and promoting the process internationally and who are currently being investigated in courts in Barcelona. In principle, the amnesty also includes the case of the democratic tsunami investigated by Judge Manuel García-Castellón at the National Court of Justice, which concerns Puigdemont and the Secretary General of the ERC, Marta Rovira, as well as the case against the CDR, on which the oral hearing had already opened. The police and civil guards accused of assault offenses in the 1-O will also be granted amnesty; according to the negotiators’ calculations, around 73 agents will be granted amnesty.
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What is excluded from the amnesty? The bill does not cover acts against persons that have resulted in death, abortion or injury to the fetus, loss or uselessness of an organ or member, loss or uselessness of a sense, impotence, infertility or serious deformity. Crimes of torture or inhuman or degrading treatment are also excluded under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms “if they exceed a minimum level of seriousness”. Police Justice (Jupol) and Unified Police Union (SUP), the two largest agent organizations, are based on this principle to ensure that the clemency measure can exclude “the vast majority of accused agents” for their actions during the confrontations recorded during 1-O , reports Oscar Lopez Fonseca. The union comes to this conclusion after taking into account that the law excludes the offenses of attack on moral integrity (humiliation of another person, serious violation of his dignity), which are charged to the 45 accused members of the security forces. Even acts that were classified as terrorist offenses were not amnestied, but only if a legally binding judgment had already been made. This requirement, in principle, allows the application of the amnesty to the CDR and Carles Puigdemont and Marta Rovira, even if they are accused of terrorism in connection with the democratic tsunami.
How is the amnesty applied? To be effective, the amnesty law must be applied by every court that has already passed a judgment or opened proceedings affected by the pardon. The draft law requires courts to apply the amnesty “preferentially and urgently”, for which a maximum period of two months is provided. The court will delete the criminal record resulting from this conviction and the search warrants, arrest warrants and national, European and international arrest warrants will be invalid. With the entry into force of the law, the precautionary measures taken towards any of the beneficiaries will be immediately lifted, requiring the reimbursement of the deposits imposed, for example, by the Court of Auditors, partially confirmed by the Generalitat.
What happens if the law is appealed? Representatives, senators or autonomous communities can appeal against the amnesty before the Constitutional Court. However, the bill stipulates that the appeals “have no suspensory effect” and the amnesty will be applied within a period of two months unless an appeal is filed. The situation is different with questions of unconstitutionality before the Constitutional Court, which can be submitted by the courts that have to apply the norm. Article 35 of the Organic Law of the Constitutional Court stipulates that raising a question of unconstitutionality “results in a temporary suspension of proceedings in the judicial process” until the Constitutional Court issues a decision. According to legal sources, this means that the judges opening this path will not make a final decision to dismiss this case until the Constitutional Court rules. However, some sources warn that the text of the law, by stating that the appropriations have no suspensive effect, does not make it clear whether this clause also touches on questions of unconstitutionality.
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Can Carles Puigdemont, Toni Comín or Marta Rovira travel to Spain without fear of arrest? The sedition and embezzlement case against the refugees of the trial will be heard in the Supreme Court and it will be the Criminal Chamber (not the instructor Pablo Llarena) that will have to apply the amnesty law and, if necessary, decide whether to raise the question of unconstitutionality. Everything indicates that this will be the case, which in principle will mean the suspension of the proceedings unless, as some sources point out, the judges interpret that the amnesty law limits the suspensive effect of questions of unconstitutionality. However, the sources tend to believe that in the case of refugees, if the Supreme Court approaches the Guarantee Court, their case cannot be filed immediately, but neither can they be arrested or legal action can be taken against them. So in principle they could return to Spain without risking arrest.
Can Puigdemont, Rovira and Oriol Junqueras run in the next Generalitat elections? Former Catalan President Rovira and the other politicians who fled from the Spanish judiciary will not be disqualified from running for elections when they return to Spain, although the amnesty has not yet been fully applied pending possible unconstitutionality. The case of Oriol Junqueras and the independence supporters condemned by the Supreme Court is different. Their sentences were pardoned, but they continue to serve the disqualification sentence. This penalty expires with the amnesty, but if the Supreme Court sends the case to the Constitutional Court, the disqualification will remain in effect until a response is made, legal sources point out, except in the case where the rule is interpreted as binding by the court must apply the amnesty within two months, even if you apply to the Guarantee Court. Legal sources indicate that, in any case, those affected could ask the Constitutional Court for precautionary measures so that the application of the amnesty is not suspended while the court resolves the issue raised by the Supreme Court.
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