Since November 9, the Socialist Parliamentary Group registered the amnesty law proposalparliamentary forces have been working with a clear objective: expand to the maximum the assumptions that will benefit from the pardon of the ‘procés’ and at the same time eliminate the loopholes that the judges that have in their hands procedures affected by this standard may have when executing it, for which they have included an express mention of the consultations with the Constitutional Court and the Court of Justice of the European Union (CJEU).
This is clear from the nine amendments agreed between PSOE, Sumar, ERC, EH Bildu and the BNG deputy, which detail the crimes included in the amnesty, without substantially modifying what refers to terrorism, which only directly affects the two cases that are being followed in the National Court: that of the CDR in which substances that could become explosives were seized and that of Democratic Tsunami, in which Judge Manuel García-Castellón substantiates the accusation of terrorism in the blockade of the El Prat airport and the death of a French tourist from a heart attack.
In this way, what is included among the crimes excluded from the amnesty “are those directed against the International Community included in title XXIV of the Penal Code” to mention the genocide, although there is no open case for this crime of those affected by the forgiveness. Regarding the acts “classified as terrorist crimes” it maintains the formula of, “as long as a final judgment has been issued and have consisted of the commission of any of the conduct described in article 3 of Directive 2017/541 of the European Parliament and of the Council, of March 15, 2017″, which sanctions the most serious cases. Neither in CDR nor in Tsunami There is a possibility that the Supreme Court will issue a ruling before the law is enacted, which allows both procedures to be forgiven.
The amendments agreed between the deputies of the four groups also include in article 1, which describes the objective scope of application of the law, the catalog of behaviors included in the forgiveness that are the carried out “between January 1, 2012 and November 13, 2023as well as the following actions executed between these dates in the context of the so-called Catalan independence processeven if they are not related to the aforementioned consultations or have been carried out after their respective celebration.”
The text explains that “the expression ‘en the context of the so-called Catalan independence process’ in order to contribute to providing greater coherence and strictness to the set of amnestied behaviors“. It also deletes the term “directly” related to the consultations, “to provide greater coherence to all of the amnestied behaviors”, which will allow the possibly affected ones to be expanded.
In another amendment the amnesty of “acts of inconsideration, or criticism or grievance expressed against public authorities and officials, public entities and institutions, as well as their symbols or emblemsincluding acts carried out through the press, the printing press, a social media outlet, the Internet or through the use of social networks and equivalent information society services, as well asn the course of demonstrations, assemblies, works or artistic or educational activities or others of a similar nature that had the objective of vindicating the independence of Catalonia or the holding of consultations or providing public support to those who had carried out the acts amnestied in accordance with this law.”
Without waiting for the TC or Europe
The text agreed upon by the majority of the groups – although to move forward it would also need the support of Junts – leaves black and white that the consultation of doubts of unconstitutionality to the Constitutional Court or for Union law to the CJEU They do not prevent the judge from annulling arrest warrants or prison measures established in the proceedings under his jurisdiction.
The article dedicated to the application of criminal law includes, according to this proposal, the expression “swithout prejudice to the provisions of article 163 of the Constitution and article 267 of the Treaty on the Functioning of the European Union”, which includes the raising of questions of unconstitutionality and prejudicial proceedings. It is then established that “the competent judicial body that, at any given time, is hearing the case will order the immediate release of the people who benefited from the amnesty who were in prison either because their provisional detention had been ordered or they were serving a sentence”.
The section relating to that “at the time of the entry into force of this law, the judicial body that, at any given time, is hearing the case will proceed to annul the search and capture orders and imprisonment of the people to which this amnesty applies, as well as national, European and international arrest warrants“. The original text said that these orders “will remain”, so the wording seeks to be more restrictive for the magistrates who have to apply it.
Without agreement
In the amendments that CKD presented without agreement with other groups, includes one that has not been supported by the PSOE, similar to that of Juntswhich in her case seeks to exonerate the Republican leader Marta Rovira. This is, along with the former president of the Generalitat Carles Puigdemont, one of the Catalan politicians included in the reasoned exposition that Judge Manuel García-Castellón submitted for terrorism to the Supreme Court.
The Republicans have not obtained endorsement of other proposals, such as the one that sought to prevent The submission of a preliminary ruling to the Court of Justice of the European Union (CJEU) could paralyze the application of the grace measure. With this, he sought to prevent not only appeals and unconstitutionality issues from stopping the amnesty, but also the Luxembourg court from stopping the law.
Also in line with Junts, ERC proposes, also without the support of the PSOE, that the fines imposed for protests and demonstrations by the autonomous communities responsible for maintaining citizen security are returned. Hence, the explanatory statement of the bill presented determined that the amnesty “will not give the right to receive any compensation, nor will it give rise to the restitution of the amounts paid as a fine or sanction, nor will it exonerate civil liability against individuals”.
In the event of direct non-application
In its amendments, Junts also alludes to the possibility – although it considers it unlikely – that judges resort to a “radical path” to not directly apply the amnesty law, avoiding even having to go to the CJEU through a preliminary ruling. In any case, it would be a decision without known precedents but one that Junts intend to avoid by adding an additional provision to the law “for greater legal certainty” and avoiding “ruling out any hypothesis.”
To avoid this risk They propose including an allusion to the judges’ disagreement “with the jurisprudence” of the European Courtin the norm so that the suspension of the procedure does not prevent the reform of judicial decisions referring to arrest, imprisonment or prosecution, as well as any other restrictive measures of rights.
Those from Puigdemont also want to extend the temporal scope of the amnesty by a couple of months. Yeah The bill set the initial limit on January 1, 2012, it is proposed to advance that date to November 1, 2011 to include all actions classified as a crime or determinants of administrative or contractual responsibility, linked “in one way or another” to both the consultation of November 9, 2014 and the referendum of October 1, 2017.
Other amendments speak, without citing it, to the alleged ‘lawfare’, alluding to to the “improper use made of the Penal Code and the instruments of the State to persecute Catalan independence supporters”. At this point, Junts point to the CDR cases and the Tsunami Democràtic case, in which the involvement of former president Puigdemont still depends on the analysis of the Supreme Court. They specify that those convicted of storing and trafficking weapons should not be excluded within the framework of these investigations.
Accounting responsibility
Among the crimes to be specified within the amnesty, Junts intends to further ensure the archiving of any procedure for administrative or accounting liability opened as a result of the independence process. The Court of Auditors has refused to suspend the ongoing procedure for 1-O and the foreign action, despite the imminent amnesty, because it has not yet come into force and can be modified in the amendment process.
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In view of what the Court of Accounts finally rules, they want the extinction of civil and accounting liabilities that “are still being processed” before said body to be in writing.
Those granted amnesty, according to Juns, should also be those who have advised or collaborated with the independence process, even if they have no direct connection with it. They thus try to prevent the effects of the law from being limited by certain judicial interpretations. It includes the prevention that the acts in question “have not effectively led to an increase in assets of illicit origin.”