The content of the amnesty law coincided yesterday with the agreement of the Government Chamber of the Supreme Court, joining the offensive of the judiciary against the political agreement signed between PSOE and Junts last week in which the way is opened to initiate commissions of investigation against judges if politicians consider that they are part of “lawfare” to unfairly persecute Catalan independentists, which in fact is denounced in the so-called 'Operation Catalunya'.
The high court, unanimously, warned of the risk that maneuvers like this torpedo respect for the division of powers and judicial independence.
The agreement reveals the concern that exists in the highest court that the new scenario, with the approval of the amnesty law and the demands of Junts, provokes a frontal attack on judicial independence because they will be the reference when it comes to applying the law by having in their hands the sentence of the process and the search and arrest warrants for former Catalan president Carles Puigdemont.
Sources from the high court are pessimistic about the scenario that opens up due to the fear that they could be investigated by Parliament if they do not adopt judicial decisions in line with the interest of the parties that will support the Government.
It is for this reason that all the magistrates of the Government Chamber of the Supreme Court agree with raising their voices in the face of this possible attack on the division of powers, and even with Europe taking action on the matter, especially because anyone may adopt a judicial decision after the application of the amnesty law that entails consequences.
An example is the former president of the Parliament Laura Borràs, who feels like a victim of this persecution after being convicted of cutting up public contracts and could therefore demand that the judges who have investigated or prosecuted her case be investigated during the commission. And this is one of several cases to which the agreement could be extrapolated.
Legal sources maintain that the tension will become palpable when the amnesty law is enacted and judges begin to interpret it and make decisions. Although the text registered yesterday in Congress determines very specifically the segment where judges can move, the courts have a certain margin.
In the most paradigmatic matter, the review of the sentence of the leaders of the process for sedition - and later modified to embezzlement of public funds after the repeal of that crime - and the surrender of Carles Puigdemont, the Supreme Court can act through a double via. The Criminal Court could raise a question of unconstitutionality on the one hand and a preliminary question before Europe on the other hand. Both would leave the application of the amnesty on hold. The law has attempted to avoid this paralysis by stipulating that neither appeals nor questions before the Constitutional Court can suspend the application of the amnesty. However, an issue could even be raised against this clause.
Sources from the judicial career are clear that after the publication in the BOE of the law, and with Pedro Sánchez already invested as president of the Government, all the focus and public pressure will be centered on the judges and courts, with a particularly Pay attention to the Constitutional Court and the European Justice, which will have the last word.
The amnesty law begins its parliamentary process without wasting any time to be approved as soon as possible for its entry into force. On this occasion, and to leave as few loopholes as possible, the text approved by the PSOE together with Junts and ERC, and endorsed by Sumar, has established how it should be interpreted by the judges, as established in Title III of the norm.
The first thing it specifies is that the amnesty will be applied by the judicial bodies ex officio or at the request of a party or the prosecutor, and, in any case, after hearing them, that is, their criteria will always have to be heard before its application.
The text specifies the application in both criminal, administrative and accounting processes. Regarding the latter, it is addressed to the Court of Accounts, which this Friday begins the trial for the external action of the process and the use of funds for the preparation of the referendum on October 1 and for which the Prosecutor's Office claims about thirty former high officials charges 3.4 million euros.
According to the law, it will be the court itself that will have to process the amnesty, for which it has also modified the TCu law. According to the text, the amnesty will be applied at all procedural moments, from the investigation, trial or review of sentences. What will not be done is review matters where the sentence has already been extinguished.
“If applied during the investigation phase or the intermediate phase, the free dismissal will be decreed, after a hearing of the Public Prosecutor's Office and the parties, by the competent judicial body in accordance with article 637.3 of the Criminal Procedure Law,” the rule states.
The law makes it clear that search and arrest warrants and precautionary measures are automatically lifted. This means that as soon as it is published and comes into force, Puigdemont has free rein to enter Spain without being arrested. The investigating judge Pablo Llarena can do nothing more than conclude the summary and submit it to the Chamber so that it can decide whether it raises a question of unconstitutionality.
The law warns judges that the law must be reviewed urgently, within a period of two months and that the appeals will not have suspensive effects. What it does not contemplate is the option for judges or courts to raise a question of unconstitutionality and therefore the processes would be paralyzed until the Constitutional Court makes a ruling.
On the other hand, if applied during the execution phase of the sentences, the judicial bodies will review the final sentences even in the event that the sentence imposed was suspended or the convicted person was on conditional release.
Cases that have been totally or partially pardoned prior to its entry into force will also be reviewed, which allows the Supreme Court ruling that sentenced nine leaders of the process, including the former vice president of the Generalitat Oriol Junqueras to be reviewed. a crime of sedition. The Government already pardoned their prison sentences but their disqualification was maintained, which now, once the law is approved, will also have to be eliminated as well as their criminal records.
