The long-awaited amnesty proposed and requested by the Catalan independence forces as a bargaining chip to elevate Pedro Sánchez to the presidency of the Government is already beginning to take shape as a reality. After years in which it was a taboo subject, groups of jurists close to the Executive have already begun to design a text that fits within the Constitution, in a work against the clock to achieve the investiture of the socialist leader and avoid an electoral repetition.
During this summer the idea of amnesty has been publicly gestated as a plausible option to definitively solve the conflict that began in Catalonia as a result of the process. During the previous legislature, the Government pardoned those convicted of sedition, including the ERC leader, Oriol Junqueras. Later this crime was repealed and the embezzlement of public funds was modified as a sample by the Executive to try to reduce inflammation of the Catalan situation.
However, with the political map that has remained after the elections on July 23, Sánchez will have no choice but to go one step further and for the independentistas it could not be other than the approval of an amnesty law.
The first doubt about whether this pardon is constitutional seems to have been resolved among the jurists who are analyzing a future text. His argument is that the Constitution does not prohibit amnesty, what the Magna Carta does disapprove of are general pardons. These jurists believe that what the constituent wanted was to avoid leaving the amnesty in the hands of the central Executive. That is why to approve it, it must be by organic law, which implies an absolute majority and therefore they are two different legal concepts.
The key now is to define the scope of the amnesty and the arguments with which the regulation is approved. That is where the real debate will be between the two parties that today still make up the acting government, PSOE and Sumar, and the pro-independence parties.
The pro-independence platforms estimate that today there are 1,432 people under investigation in criminal proceedings, as reported by Òmnium Cultural. To this are added 1,200 affected by administrative and accounting procedures, within the framework of "a general cause against the independence movement", according to the complaint.
This figure would be the maximum that the amnesty could affect, with former president Carles Puigdemont at the core of the beneficiaries. However, the jurists consulted believe that this figure should be considerably reduced.
The way to achieve this is to limit the acts to be amnestied. In the proposal presented in the Congress of Deputies by the pro-independence parties in 2021 – and which was not even admitted for processing – an amnesty was proposed for acts that occurred since January 1, 2013 related to the preparation, the organization, the call , the financing, favoring, promotion, execution and celebration of both the participatory process on the political future of Catalonia on November 9, 2014, promoted by Artur Mas, and the self-determination referendum on October 1, 2017. Also They demanded that the acts of protest on the public highway rejecting the actions of the government or jurisdictional authorities related to 1-O be amnestied.
The objective is, among others, to allow Puigdemont to return to Spain without a criminal record, to lift the disqualification of those already convicted, to close the accounting cases open in the Court of Accounts that could end the seizure of the assets of dozens of people - among them the main pro-independence leaders until 2017 such as Mas, Puigdemont or Junqueras–, and stop legal proceedings opened for violence, such as those linked to the CDR. However, the jurists consulted explain that in no case should specific persons be set because then it could be considered a concealed general pardon.
Precisely, in the open works, such as the group of lawyers chosen by Sumar, it is intended to define how far it can go. "It is a political debate, not a legal one," they argue. However, other jurists do consider that it is necessary to clearly define the scope for a subsequent hypothetical review by the Constitutional Court.
That is why they predict friction between the two blocks to establish the explanatory statement. The independentistas want their status as victims of the repression of the Spanish State and of political and judicial persecution to be recognized through a general cause against the Catalan independence movement.
However, these legal sources explain that amnesty is an act of forgiveness through which it is decided to clean the slate. In his opinion, in no case could he endorse the legality of the disconnection laws or 1-O even if he is forgiven. In addition, they insist that the objective of the amnesty will be to establish some bases so that all the parties continue working for the resolution of the Catalan conflict but within the constitutional framework and within the will to close a conflictive stage
