“Like any law, the amnesty will have to be applied and reviewed by judges.” This phrase said by sources familiar with the content of the amnesty law perfectly defines how its application will be articulated the day after publication in the Official State Gazette (BOE).
The law provides for amnesty for just over 300 people with criminal proceedings, not counting the National Police, who could number more than fifty, and who would be joined by those accused by the Court of Accounts, but the annulment of their cases will not be automatic. . Each judge or court, ex officio or at the request of one of the parties, will have to review the case and apply it.
Once the law is approved, it will be seen who specifically benefits from the amnesty that is supposed to be aimed at withdrawing the cases for those who have had some direct or indirect relationship with the consultation of 9-N 2014 and with the referendum of 1- Or from 2017.
The most relevant case and where all eyes will be on is that of the Supreme Court. There are two ramifications in this case. The first is the application of the law with the nine convicted of sedition, among them the president of ERC Oriol Junqueras. And the second, the part that affects the escapees, that is, the leader of Junts Carles Puigdemont and the former councilors Toni Comin and Lluis Puig.
On the part of those convicted, the prison sentences have already been extinguished as a result of the pardons granted in 2021 by the Government with Juan Carlos Campo as Minister of Justice - now a magistrate of the Constitutional Court -. However, they still have active disqualifications.
The Criminal Chamber of the high court, with Manuel Marchena as president, will have two options; apply the law and amnesty those convicted to eliminate the disqualification and have their criminal records expunged or present a question of unconstitutionality before the Constitutional Court. This mechanism gives the judge or court the power to paralyze a matter until the guarantee body tells them whether the law they must apply is constitutional or not.
One of the big doubts in recent weeks is whether the judges are obliged to grant amnesty before the TC rules. The doctrine of the court of guarantees itself specifies that “the raising of the question of unconstitutionality determines the provisional suspension of the proceedings in the judicial process until the Constitutional Court rules on its admission and, if admitted, until it definitively resolves the issue.” ”.
This means that until the TC makes a ruling, the Supreme Court case will be suspended, that is, unresolved and, therefore, the disqualifications remain active, so Junqueras and the rest of the convicted former councilors will not be able to run again in the elections until that there is no final decision from the guarantee body.
Before raising the issue, the Chamber will have to request allegations from both the Prosecutor's Office and the parties so that they can rule on the convenience of going to the guarantee body. This will be the first time that the prosecutor's office will have to take a position on the amnesty law. The State Attorney General, Álvaro García, will have to take sides regarding the rule or leave it in the hands of the four prosecutors of the process to give their opinion on the matter.
In the second part, the one that affects the fugitives, the Chamber will carry out the same procedure. What happens is that the amnesty law will specify that the arrest warrants as well as the precautionary measures issued will be automatically lifted. Legal sources indicate that by raising the question of unconstitutionality regarding Puigdemont, the case is suspended, which means that the national arrest warrant that weighs on him is also suspended.
He could then return to Spain without the trial judge Pablo Llarena, a priori, being able to take any measure against the former president of the Generalitat. In addition, the way is opened for the magistrate to raise a preliminary ruling before the Court of Justice of the European Union, which would also paralyze the judicial process.
The question of unconstitutionality is what paralyzes the criminal procedure in question, but not the application of the law, so it will depend on each judge and court of each matter to decide how to act. Some courts may automatically apply the amnesty, although the expectation is that many judges will wait to see how the Supreme Court acts and even if the Supreme Court raises the issue, wait until there is a resolution. What happens is that the law could determine that judges must apply the rule within a certain period, with which everyone will have to take a position, even if it is to paralyze the procedure, before that date, which could not be more than two months.
In parallel, the Constitutional Court will receive, as has already been announced, unconstitutionality appeals from PP and Vox that must also be resolved in parallel. One of the first decisions that will have to be studied is whether both the president, Cándido Conde-Pumpido, and Judge Campo should refrain from intervening in the matter. The first has already done so in other cases linked to the process, while the second could be left aside having been Minister of Justice with Pedro Sánchez and ruling on the pardons of the independence leaders.
