The negotiations between the Government of Pedro Sánchez and Junts have been reduced to a minimum after the clash on Tuesday, when the socialists refused to touch even one more point of the Amnesty law and Junts voted against the text. The Executive is working in several ways to try to convince Carles Puigdemont to reconsider his position and approve the Amnesty law as it is written. Among these formulas, a modification of the Criminal Procedure Law (LECrim) takes shape that would affect the periods of judicial investigation. That would limit the movements of Manuel García-Castellón, the judge who is now putting the approval of the amnesty in check with an investigation for terrorism against the former president of the Generalitat and other pro-independence leaders.
The change to the LECrim gains strength, while another option on the table loses steam, that of modifying the Penal Code and, specifically, the classification of terrorism, as it is more difficult to justify politically. These avenues have been outlined to Junts, but no negotiation has been entered into, and it is possible that other solutions may emerge in the course of the conversations. The Government wants to take advantage of these weeks in which the focus is on the Galician elections to advance an agreement that allows the amnesty to be approved without further changes, something that it considers essential for three reasons: the main one, because it is convinced that the current wording It is impeccable and guarantees its constitutionality. Secondly, because the PSOE cannot allow itself so many contortions and changes of opinion. And, finally, because a new concession to Junts would increase the discomfort of another essential partner, ERC.
The change being considered in the LECrim would affect article 324, which regulates the extensions of the investigation periods of judicial cases. Now, under a reform approved in 2020, judges have twelve months to investigate a case, but they can, ex officio or at the request of the parties, successively add extensions of six months. It would be a matter of returning to the previous situation, that is, to the reform carried out in 2015, when the PP governed, which gave the public prosecutor a more decisive role, since the extension would be dictated at the request of that body due to circumstances that occurred during the investigation.
In the case that worries Junts, the judge of the National Court Manuel García-Castellón, after five years since the case was opened, has just given himself six more months to investigate Tsunami Democràtic, the organizing platform for the protests that occurred in October of 2019 in Catalonia as a response to the procés ruling. The judge is investigating Puigdemont and other leaders for an alleged crime of terrorism as Tsunami leaders. With the legal changes that the Government is considering, the judge could no longer lengthen the investigation because the prosecutor would have to request it, and the prosecutor is against classifying the events as terrorism.
The possibility of changing the Penal Code has also been on the table. The crime of terrorism in Spain has ended up encompassing very broad assumptions due to the historical need to provide tools against this scourge. Thus, it covers any serious crime of various types that has the purpose of “subverting the constitutional order, seriously destabilizing the functioning of institutions, seriously disturbing public peace or provoking a state of terror in the population or part of it.” With that statement, García-Castellón would have an easy time classifying the Tsunami protests as terrorism. However, Spanish legislation has also adopted a 2017 European directive that determines that, for a terrorist group to exist, there must be an organization “structured” and “established for a certain period of time,” that is, “not formed fortuitously to the immediate commission of a crime.” And, in principle, Tsunami acted punctually as a reaction to the procés ruling.
But modifying the Penal Code on a sensitive point such as terrorism could be counterproductive. The Government, meanwhile, insists before public opinion on separating the process from terrorism, as Sánchez did from Brussels in a very measured statement addressed to Junts: “As everyone knows, the independence movement is not terrorism. It is not. With this Amnesty bill I am convinced, and this is what the courts will conclude, that all Catalan independence supporters will be amnestied because they are not terrorists.” A message that was well received in Puigdemont's party.
