The PSOE and Junts have reached an agreement that clears the way for the investiture of Pedro Sánchez. The political significance of the document is undoubted, but I would like to dwell on some aspects that I believe are interesting from a legal point of view.
First of all, Junts will propose “the realization of a self-determination referendum about the future of Catalonia under the protection of article 92 of the Constitution”. The proposal has constitutional problems. To begin with, the aforementioned provision provides a referendum of an advisory nature, so that a hypothetical result favorable to the secession of Catalonia It would not be legally binding. Nor could it be effective without previously modifying article 2 of the Constitution, which establishes the indissoluble and indivisible character of Spain. It must be taken into account, on the other hand, that the referendums of article 92, section 1, provided for “political decisions of special importance” behave participation of “all citizens”, So, if a referendum were desired in which only Catalan citizens would vote, it would be necessary to think of a new modality that would be added to those already contemplated by Organic Law 2/1980 regulating referendums. And finally, it is necessary to point out the possible obstacle represented by the doctrine of the Constitutional Court, in its ruling STC 103/2008. At the end of its Legal Basis 4, it says: “Respect for the Constitution requires that projects to review the constituted order, and especially those that affect the foundation of the identity of the sole holder of sovereignty, be substantiated openly and directly by the way that the Constitution has provided for those purposes.” I hasten to say that, in my opinion, the Constitutional Court is wrong, because it establishes a limit on the possible contents of referendums that does not follow from what article 92 says. But, even if it disagrees, this ruling will undoubtedly be used against any proposal for a self-determination referendum, even if it is advisory.
Secondly, when the agreement deals with the amnesty, it says that “the conclusions of the investigative commissions of this legislature will be taken into account in the application of the amnesty law to the extent that situations may arise that fall under the concept of ‘lawfare’ or the judicialization of politics, with the consequences that, if appropriate, may give rise to liability actions or legislative modifications.” The wording is somewhat tortuous, but it suggests that it opens up the possibility that the application of the amnesty law could benefit people who are being investigated, or have been convicted, for actions that have nothing to do with the events directly linked to the independence movement.
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I think that it follows that, from the outset, these cases do not fall within the amnesty law that is being prepared. What is done is to foresee the possibility that, according to the results of the investigative commissions, legislative modifications will be produced that protect the victims “of ‘lawfare’ or the judicialization of politics.” It is also expected that liability actions will be filed, since both the ‘lawfare’ and the judicialization of politics they represent a misdirected use of judicial power to persecute political adversaries.
What is striking is that the concepts mentioned would imply very serious responsibilities for judges. Article 446 of the Penal Code, which regulates the call “judicial prevarication” imposes very severe penalties on judges or magistrates who knowingly pass unjust sentences. It is assumed that, following what article 76 of the Constitution says, investigative commissions that detect improper behavior by judges or magistrates will report it to the Public Prosecutor’s Office so that it can act accordingly. Then we will go from insinuations to elucidating when there has been judicial prevarication and when the argument of political persecution has been used to cover plainly criminal actions. In any case, we should abandon anglicisms and imprecise concepts that they suggest without specifically accusing.