The Government and the Generalitat will sit down again this week at the dialogue table. One of the objectives of the negotiation will be to remove from the courts the cases linked to the events of the referendum of October 1, 2017 and the rest of the cases related to political activism opened during those years. It is what has ended up being called the dejudicialization of the procés. It is a word that does not exist in the dictionary but whose intention would be the will to return to politics what is currently in court.
However, this ERC requirement, which the Government seems to have accepted in whole or in part, has a complicated execution.
Various legal sources consulted explain that it would require, to begin with, a change of criteria in the Prosecutor's Office. That is, withdraw accusations, lower them so that they remain in symbolic sentences or promote agreements in accordance with the accused.
Parliamentary sources warn that at the dialogue table it will be difficult for him to offer a commitment to withdraw the cases nor to make the judges stop investigating or prosecuting. It is unfeasible, these sources maintain, because it would violate the separation of powers, they warn.
In the Prosecutor's Office they deny that it is viable, at least in cases that are already prosecuted and advanced.
An example is that of the former president of the Generalitat Carles Puigdemont. In the hypothetical scenario that Belgium finally authorized his delivery to Spain, it is not at all foreseeable that the prosecutors of the Supreme Court in charge of the case would oppose his pre-trial detention, or his trial or the request for a prison sentence at least the same as that already imposed on former Vice President Oriol Junqueras, who was sentenced to 13 years in prison.
For a change of scenario, the new attorney general, Álvaro García, would have to give an order to the four prosecutors in the case to change their procedural strategy or relieve them of the matter, a scenario that sources from the public ministry today rule out.
In addition, in this case, the popular accusation must be taken into account – in the case of Puigdemont, it is Vox – which would predictably maintain its accusations.
The only option that the Government has would be a pardon again, but for that Puigdemont would first have to face trial and jail.
Sources of the Supreme explain that another way that the Executive could count on to avoid the image of the former Catalan president in a prison would be the reform of the Penal Code to suppress or modify the crime of sedition to convert it into a lesser penalty that the conditions for his imprisonment. The crime of sedition was the one applied in the sentence of the Supreme for the procés.
The reform of this article has long been demanded by the independentists. In fact, the previous Minister of Justice, Juan Carlos Campo, has already established the bases for the modification of the article in which sedition is collected to equate it to the concept established by the countries around us. The Council of Europe has ruled in this regard. However, after the granting of the pardons and the dismissal of Campo, these works were paralyzed.
In an interview in La Vanguardia, the Prime Minister, Pedro Sánchez, defended the need to update the Penal Code. “We have to modernize it and adapt some precepts to the democracies around us. It is an organic law that requires an absolute majority in Congress: 176 seats. It seems to me that today we do not have the majority for that change.”
One of the issues that most worries the republican negotiators is the upcoming trial of two lieutenants of the party, deputies Josep Maria Jové and Lluís Salvadó, before the Superior Court of Justice of Catalonia (TSJC).
Jové was the owner of the agenda intervened by the Civil Guard in which the meetings held by the so-called general staff of the procés as well as the roadmap to follow to achieve independence were reflected.
The Prosecutor's Office plans to present its indictment around the summer for organizing 1-O and could lead to several years in prison. After them will come the dozens of officials and senior officials who also participated in one way or another in the organization of the Catalan October that is now five years old.
Legal sources explain that in these matters 'dejudicialization' is not feasible because the public prosecutor's office is governed by the principle of legality. If a crime has been committed, it must be prosecuted.
In these past matters, one of the plausible options is pardon, a political decision to deactivate judicial resolutions under the allegation of the need for cohesion and social peace; make a clean slate.
Legal sources add that in matters already prosecuted, judges are obliged to comply with the law and execute it, otherwise they would be the ones who would be committing a crime. However, what would be in the hands of the Executive, through the Ministry of the Interior, are prison benefits or transfers, among other aspects.
However, nothing is set in stone. Sources of the defendants acknowledge that, for example, in the cases opened in the Court of Auditors some changes are already perceived after the progressive magistrates took control of the majority.
Only the composition of the new court after the renovation has given another air to the institution. The confrontation with those charged in the accounting process by 1-O and by the external action of the Generalitat has been reduced.
The Prosecutor's Office, in its demand, has significantly reduced the amount requested, from the nine million claimed by the instructor to 3.4 million euros.
At the dialogue table, in addition to proposing solutions for matters that are already judicialized, efforts will be made to lay the foundations for the future. And that is indeed a plausible path. It is claimed that the Prosecutor's Office be more cautious when presenting complaints for crimes with more political overtones such as disobedience.
Of course, for this to happen, the attitude of the other party will also be essential.
