The proposal for a future amnesty law agreed between PSOE and Junts, which opens the door for the inauguration of Pedro Sánchez, is almost a reality. The norm, which will be signed by the groups of the new majority that will make the leader of the Socialists president – PSOE, Sumar, ERC, Junts, PNV, Bildu, BNG -, with the exception of the Canary Coalition, will be registered soon Congress for his consent. Processing “in an expedited manner” and not in individual readings. The rule means that the “criminal, administrative and accounting responsibility” will be abolished of all those who committed crimes related to the sovereignty process in Catalonia in a decade between January 1, 2012 and this Monday, November 13, 2023. The rule does not contain any reference to investigating lawfare (politically motivated prosecution) cases, which could lead to amnesty for victims if a parliamentary inquiry produces such a result. The term lawfare was included in the agreement that the PSOE signed with Junts last week.
The rule benefits participating independence advocates at all levels, from the highest to the lowest. This means that Oriol Junqueras will no longer be disqualified and Carles Puigdemont will be able to return to Spain after it comes into force without pending proceedings, which can take months and can then be blocked by appeals to the Constitutional Court. And the school principals are accused of opening their schools for the 1-O referendum, a total of more than 300 people, according to the calculations of the negotiators of this norm, in addition to the 73 police officers involved in violent repression processes If the consultation is illegal, they can also reap the benefits of the law. In order to avoid controversy, the explanatory memorandum regarding the latter clarifies that an amnesty for police officers “in no case means the criminalization of officers who have intervened in defense of public order, since the presumption of innocence is a fundamental principle of our system.” legal. On the contrary, it aims to facilitate the procedural situation of the accused.” The law obliges judges to apply the requested amnesty within a maximum of two months from the adoption of the law, so that it is not delayed indefinitely. “Decisions will be made within a period not exceeding two months, without prejudice to subsequent appeal procedures, which have no suspensory effect,” the text says.
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The text of the law states in Article 1 that “the acts determining criminal, administrative or accounting liability, adopted within the framework of the consultations in Catalonia on November 9, 2014 and October 1, 2017, are amnested.” the consequences of which, provided that they were carried out between January 1, 2012 and November 13, 2023.” In addition, it also covers amnesty measures committed between these dates, “even if they are not directly related to these consultations or even after their respective implementation were carried out” which consist of “demanding, promoting or striving for secession”. independence of Catalonia and those who contributed to the realization of these goals.”
In Article 2, the norm identifies the exceptions that prevent amnesty for certain crimes related to sovereignty consultations. “Intentional acts against persons that have resulted in death, abortion or injury to the fetus, loss or uselessness of an organ or limb, loss or uselessness of a sense, impotence are excluded from the application of amnesty. , infertility or.” severe deformity; Acts classified as crimes of torture or inhuman or degrading treatment in accordance with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, provided they exceed a minimum level of seriousness; acts classified as terrorist offenses (…), provided that a final judgment has been made and they have consisted of the commission of any of the conduct described in Article 3 of Directive (EU) 2017/541 of the European Parliament and approved by the Council on March 15, 2017 ; Crimes of high treason and against the peace or independence of the State in connection with the national defense of Title XXIII of Book II of the Penal Code.”
With this wording, the crimes for which Laura Borràs, the president of Junts, was convicted would, in principle, be excluded from the amnesty; or for which Gonzalo Boye, Carles Puigdemont’s lawyer, was prosecuted, with no apparent connection to the sovereignty process.
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The amnesty includes, as ERC claimed, those involved in the Democratic Tsunami case and the CDR case, even though prosecutors are seeking terrorism prosecution for them. And last week the perimeter was also expanded to allow some people close to Carles Puigdemont involved in the Voloh case, where these independence supporters’ ties to Russia are being investigated. In the CDR’s case there were no deaths or serious injuries, so they would be granted amnesty as the future law covers the charge of terrorism when there are no deaths or serious crimes. The judge in the tsunami case, Manuel García Castellón, is trying to charge Puigdemont with terrorism over the death of a man from a heart attack at Barcelona airport during the 2019 protests, but that idea is unlikely to be implemented. The text of the law expressly states that only terrorist offenses following a final conviction would be exempt from amnesty, but this is far from the case in this case.
The text, after a long explanation of the reasons, includes 16 articles which also clarify the total amnesty in economic matters, allowing the cancellation of deposits and withheld funds for other precautionary measures. This will benefit several leaders, including former Catalan President Artur Mas, as well as Puigdemont and Junqueras themselves. Of course, the rule states that the money already paid will not be returned in proceedings that end with a final judgment and that there will be no compensation for those who have already suffered convictions and prison sentences. The procedure in cases where the defendant can benefit from the law will be an emergency and preferential procedure with a response period of two months, so that no court will delay the granting of amnesty.
There will be no conditions for obtaining amnesty, but one thing is clear: in the face of those who criticize that this law cancels the crime, the penalties are not affected by this law – they were changed last year to reduce possible penalties. but not eliminate it. – and if there were a new trial, there would be similar criminal proceedings again. Therefore, the amnesty is temporary and does not forgive future behavior, as is the case with all laws of this kind worldwide. The penal code is touched upon, but to reinstate amnesty as a reason for abolishing the crime, something that existed but was abolished in 1995 as part of a comprehensive reform.
The preamble of the text is intended to highlight the constitutionality of a law of this type and to give examples at European level, including the recent law 38-A/2023 of August 2 of Portugal, which granted amnesty to all young people between the ages of sixteen and thirty for the commission of certain crimes on the occasion of Pope Francis’ visit to this country.
This preamble ceases to justify the constitutionality of the law, which the PP and also some courts competent to apply it will undoubtedly appeal, it underlines the upholding of the Constitution, the rule of law and the national and international legal system. a formula to indirectly exclude this one-sidedness, but without saying so explicitly because Junts was not prepared to do so. “The objectives to be pursued within the constitutional framework are diverse. However, all paths must proceed within the national and international legal system,” it expressly states, which means an indirect renunciation of one-sidedness for the government, because it is signed by Junts and ERC.
“Since 1978, Spain has had a constitutional text comparable to that of surrounding countries, which guarantees fundamental rights considered individually and respects the ideological and political rights of all and which gives public authorities the obligation to interpret the norms relating to fundamental rights ” Rights and freedoms in accordance with the Universal Declaration of Human Rights and ratified international treaties and agreements, as recognized in the Constitution itself,” he also emphasizes, thereby defending the Constitution.
All of these paragraphs appear to be intended to ensure the constitutionality of the rule which the executive branch now claims as its own at any time. For years the government insisted that an amnesty was not enshrined in the constitution. Sánchez himself, who has said this clearly several times, now assures that they were referring to the amnesty demanded by the independents, which was argued in a very different way than this one.
Regarding the sovereignty process, which ended with the conviction of the majority of the Catalan government for sedition, disobedience and embezzlement, the text simply states: “These events led to an institutional tension that led to judicial intervention, as well as 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 revive when the multiple legal consequences that they continue to have, especially in the criminal field, come to light.” The The history of the process is not as close to the history defended by the independence movement as that of the political agreement with Junts, which even spoke of the new decrees of the 18th century, but in any case it does not assume a mistake on the part of the Independentist party .
In any case, the government insists that this standard is impeccable, although the Constitution does not mention this measure of grace, and it claims that since the Second World War, up to 52 amnesties have been carried out in Europe, several of which took place in 2011. which, like Spain, do not provide for this option in their constitutions, like Germany or Belgium. “With this organic amnesty law, the Cortes Generales once again resort to a constitutional mechanism that strengthens the rule of law in order to provide an adequate response more than ten years after the start of the independence process, when the most serious moments of the independence process have passed.” The crisis is have already been overcome and it is time to lay the foundations to ensure coexistence in the future. In this way, when the Cortes Generales make this legislative political decision, not only do they not invade other spaces, but, on the contrary, and using their powers, they take over from politics the best possible path, a political conflict to tackle.”
The political explanation is clear: Sánchez defends that he has made “necessity a virtue” and admits that he would not have made the amnesty now if he had not needed the votes of the independents, but at the same time is convinced that it would be good for Catalonia and for all of Spain to legally complete the process. The executive maintains that the only thing that could revive an already very weakened process is precisely the systematic imprisonment of officials of the middle independence movement in prison, which could happen without amnesty in the coming months.
The entire justification of the law is permeated by the idea that a democratic State, in full respect of the Constitution, decides to make an exception and amnesty for crimes limited to a specific period and a particular political situation, namely the crisis of Catalonia, with the aim of improving coexistence. In fact, the name of the law has this meaning: “Amnesty law for the institutional, political and social normalization of Catalonia.” In the text, this idea is repeated in several paragraphs. “The will to advance the path of political and social dialogue necessary for the cohesion and progress of Catalan society is thus legally recognized, with the understanding that strengthening coexistence justifies the present amnesty law, which represents a turning point objective is to overcome obstacles and improve coexistence in order to advance the full normalization of a plural society that addresses the key debates about its future through dialogue, negotiations and democratic agreements. “In this way, the solution to the political conflict is brought back into the channels of political discussion,” the text says.
The entire reasoning is intended to justify the amnesty constitutionally and to defend against the PP’s certain appeal. “With this organic amnesty law, the Cortes Generales once again resort to a constitutional mechanism that strengthens the rule of law in order to provide an adequate response more than ten years after the start of the independence process, when the most serious moments of the independence process have passed.” The crisis is have already been overcome and it is time to lay the foundations to ensure coexistence in the future. In this way, when the Cortes Generales make this legislative political decision, not only do they not invade other spaces, but, on the contrary, and using their powers, they take over from politics the best possible path, a political conflict tackle,” he says.
Once the law is registered, investiture begins. Wednesday and Thursday have already been officially called. Thus, after three months of intense negotiations, Pedro Sánchez could be sworn in as president and would achieve something that recently seemed unthinkable, namely that Junts, who flatly rejected any commitment to the ability to govern, would be included in a very complex and transversal majority that joins the Canary Islands coalition (a party that does not subscribe to the amnesty law proposal), and this will become a reality with a crucial kit: the granting of amnesty, a historic claim of independence; but above all the need to avoid a PP-Vox government, something that unites almost everyone who will support the inauguration of Sánchez, with the exception of the Canaries, who also support the failed attempt of Alberto Núñez Feijóo to take over the presidency, supported.
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