The amnesty law is very advanced. Hence, Pedro Sánchez dared to pronounce that word in public for the first time on Friday and also in the presence of the European leaders, the president of the Commission, Úrsula von der Leyen, and the president of the Council, Charles Michel, meeting in Granada. He defended it as the instrument to “overcome” the judicial consequences of the independence process. Sánchez thus presents this measure as the resolution of a conflict that Europe witnessed in 2017, when Carles Puigdemont sought mediation from Brussels and Mariano Rajoy tried to prevent it.
Europe watched with astonishment the police charges of 1-O, but failed to give support to the independence movement in the following weeks, when it opted for the unilateral route. Sánchez feels supported by the European institutions on the Catalan issue, but the internal front is going to become very complicated for him, despite the fact that optimism about an agreement is widespread in the PSOE and Junts. The amnesty law is taking shape.
Although Puigdemont's negotiators initially thought that it was better to dispense with an explanatory statement in the law to prevent the text from underlining concepts related to reconciliation or coexistence that do not fit with the Junts speech, they have finally accepted that this preamble is essential so that the norm passes the Constitutional cut. The main concern is the application that the courts can make of the law.
The PSOE and Junts are very aware that the modification of the crime of embezzlement that the Government agreed with ERC to reduce the sentences of some pro-independence leaders was unsuccessful because the Supreme Court interpreted the change in a way that was even counterproductive for the interests of its promoters. Now there is an attempt to leave little room for legal readings. However, the battle in the courts is going to be high voltage.
There is a possibility that Supreme Court Judge Pablo Llarena, who is pending a request for Puigdemont's extradition to Belgium, will send a preliminary ruling to the Court of Justice of the EU on whether the amnesty is applicable or not and that could paralyze everything for one or two years. In this context, it is necessary to read carefully the interview published on Friday by El Mundo with the criminal lawyer Enrique Gimbernat, one of the most senior jurists in the Supreme Court. Judge Manuel Marchena, for example, has it in high regard. Gimbernat maintains that the amnesty is unconstitutional and emphasizes that it will be the courts that will have to apply it.
The criminal is very explicit. He ventures that Llarena or the Chamber chaired by Marchena could present a question of constitutionality to the TC and that this court may take “two or three years” to resolve. Meanwhile, he remembers, Puigdemont's prosecution is still in force and so is the arrest warrant, so he could not return. What's more, he assures that it is not so clear that the Constitutional Court endorses the law despite having a progressive majority, since only if two of its members "change" to the conservative sector, the result would overthrow the amnesty. And he points to one: the former minister Juan Carlos Campo, who prepared the pardons and who then “already said” that the amnesty was unconstitutional.
The memory of what happened with the Statute is inevitable. The interview is extremely revealing of the climate that is developing in certain institutional settings. Without hesitation, Gimbernat says that the amnesty “would put an end to the democracy of '78.” All of this when Sánchez has only once uttered the word amnesty and while the independence movement has almost ignored that screen.
The Government's optimism is based on progress in drafting the law. But the political agreement that gives continuity to this first step remains to be unraveled. Puigdemont is not going to expressly reject unilateralism and the Executive assumes it, although he hopes that this resignation will emerge from the final draft. The most complicated thing is to find a framework in which the former president can express his aspirations without Sánchez committing to any self-determination referendum.
To resolve this issue, rhetoric was already used when the PSOE agreed with ERC. It was then agreed that there would be a referendum if any agreement was reached between both parties that could be voted on. The socialists do not want a consultation in which they defend one option and the independence movement another, since a result adjusted or unfavorable to their positions would cause a territorial crisis even greater than that of 2017.
Rhetoric can unravel a blockage but ends up proving useless after a while. For this reason, the former president insists on demanding an international mediator, another of the obstacles to be resolved. The Government is willing to look for “a verification mechanism” that certifies the degree of compliance with the agreements. This relationship framework with Junts must coexist with the dialogue table between the two governments already established with ERC, since the Catalan independence movement negotiates separately and competes with each other for results.
Sánchez thus moves between those who certify the end of democracy in Spain and those who believe that the amnesty is done and is only the beginning. There is, however, an event on the horizon that Sánchez does not lose sight of: the elections in Catalonia. Scheduled for spring 2025, they could be brought forward. Right now, the ERC Government depends on the PSC in the Parliament. Sánchez has not identified Salvador Illa as a relevant interlocutor in everything that concerns Catalonia out of mere deference to the PSC. His outcome in those choices can move the pieces on the board. Illa does not close the door to anyone, neither to ERC nor to Junts. And, despite having snatched the mayor of Barcelona from Xavier Trias, this same week he incorporated Puigdemont's party into the municipal government of Sabadell, in which the socialists have an absolute majority. Sánchez wants to attract Junts to pragmatic politics and make necessity a virtue: “Whoever wants to govern Spain has to assume political pluralism and territorial diversity,” he said yesterday.
