The proposal for the Cortes Generales to approve the amnesty law for people affected by causes derived from the process has managed to be closed - some fringes are being closed for its registration in Congress - with an agreement between the PSOE and the Catalan independence parties, with the support of Sumar. A text with a statement of reasons, a preamble and 16 articles in which it is determined for the sake of “democratic coexistence” who will be exonerated from a criminal, administrative or accounting process without any express mention of the so-called lawfare or judicialization of the policy that was included in the political agreement between PSOE and Junts for the investiture of Pedro Sánchez.
The "Organic Law of amnesty for institutional, political and social normalization in Catalonia" establishes that all open cases whose origin is the organization preparation or consequences of both the consultation of November 9, 2014 and the declared illegal referendum of November 1 are annulled. October. The text will benefit 309 people with criminal cases, 73 police officers who have cases for altercations during October 1 or in the days before and after, in addition to all those prosecuted by the foreign action and the process in the Court of Accounts.
Regarding the police, the law explains that the "criminal actions that may have been carried out in the defense of legality and the constitutional order do not imply any demerit or reproach for the groups concerned. In no case does it imply the criminalization of the officials who intervened in defense of public order, since the presumption of innocence is a basic principle of our legal system. Far from it, it seeks to alleviate the procedural situation of the accused and with it the tensions derived from some events that took place at a certain moment and as a consequence of the tensions that existed then and over more than ten years," he points out.
Thus, he adds that this law aspires to lay "solid foundations to, once and for all, continue mitigating the consequences of a conflict that should never have occurred and that, despite the steps taken in recent years, is still latent." .
Despite the agreement signed between PSOE and Junts to support the investiture of Pedro Sánchez, the law does not include any term related to "lawfare" or any suggestion of judicial persecution of political leaders.
The explanatory memorandum of this organic law literally states that the amnesty "covers not only the organization and celebration of the consultation and the referendum, but also other possible crimes that have a deep connection with them, such as, as For example, the preparatory acts, the different protest actions to allow their celebration or show opposition to the prosecution or conviction of those responsible, also including assistance, collaboration, advice or representation of any type, protection and security to those responsible, as well as all "the acts object of this Law that accredit a political, social and institutional tension that this norm aspires to resolve in accordance with the powers that the Constitution confers on the Cortes Generales".
The amnesty period runs from January 1, 2012 to November 13, 2023. Article 1 of the law, which must still be approved by Congress and the Senate, establishes which crimes and causes are amnesty, while Article 2 establishes who is excluded. Those who have crimes of intentional injury will not be amnestied, that is, a court recognizes that the attack was carried out with the intention of causing harm.
The crimes of torture are also not included (although there is no cause for this) or terrorism resulting in death or injury. This means that the two cases opened in the National Court for alleged terrorism crimes are included. This involves the prosecution of a dozen people for the cause of the CDR and the Democratic Tsunami.
This point has been controversial because right in the middle of negotiations on the text, the judge of the National Court Manuel García-Castellón charged the former president of the Generalitat Carles Puigdemont and the general secretary of ERC, Marta Rovira, with a crime of terrorism linked to the case of Tsunami. Thus, in the final text of the law it is specified that acts classified as crimes of terrorism are excluded from the amnesty "as long as a final sentence has been handed down", which would save the two leaders of the process from being left out of the amnesty.
Likewise, García Castellón established last April the opening of an oral trial for 'Operation Judas' for crimes of belonging to a terrorist organization and possession, storage and manufacture of flammable explosive substances or devices of a terrorist nature. Once the law is approved, the defendants will be amnestied and will not have to sit in the dock.
This same judge has open proceedings for the so-called Democratic Tsunami, a group that instigated the riots in Catalonia after the ruling of the Supreme Court that condemned the leaders of the process for sedition. The judge investigates which people created that movement, the ideologues and the financiers.
The formula used to include terrorism among the amnestied crimes is that what could already be considered attacks, resulting in injuries or death, are left out, which do not exist in either of these two cases.
Also excluded are crimes in the execution of which racist, anti-Semitic, anti-gypsy motivations or other types of discrimination regarding the religion and beliefs of the victim, their ethnicity or race, their sex, age, sexual or gender orientation or identity, reasons of gender, aporophobia or social exclusion, the illness they suffer from or their disability, regardless of whether such conditions or circumstances actually occurred in the person on whom the conduct occurred.
The proposed law establishes the general lines to benefit from the amnesty, which is anyone who has participated in the organization, preparation, elaboration or celebration of 9-N and 1-O, as well as in the protests and riots resulting from both the 2014 consultation and the 2017 referendum, which includes all the altercations that occurred in Catalonia as a result of the procés ruling handed down by the Supreme Court in 2019. Also included are the crimes of usurpation of public functions or embezzlement "directed at finance, defray or facilitate the carrying out" acts linked to 9-N or 1-O; as well as disobedience, public disorder or attacks against authority "executed with the purpose of allowing popular consultations to be held."
After establishing these general lines, the text specifies which cases are included, among which is the Supreme Court's own case, all those opened in the Superior Court of Justice of Catalonia, such as the one opened against the former Ministers of Vice President and Economy, Josep María Jové and Lluís Salvadó, ERC deputies, considered the architects of the process; and the cases opened in various Catalan courts.
"The acts determining criminal, administrative or accounting liability amnestied under section 1 of the first article will be whatever their degree of execution, including preparatory acts, and whatever the form of authorship or participation," the exhibition states. of reasons.
In application of the law, no person prosecuted for matters that have nothing to do with the process will be eligible. Therefore, the former president of the Parliament Laura Borràs, sentenced to four and a half years in prison for rigging contracts when she was director of the Institució de les Lletres Catalanes, is excluded. Nor will those investigated, prosecuted or convicted in cases of corruption such as the 3% case or the Pujol family be eligible.
The law will not be automatic but rather each judge must act ex officio or at the request of a party so that it is resolved within a period of two months, as the procedure is considered “urgent.” In open cases, the bonds that have been imposed will be closed and returned as they are precautionary measures, which will be lifted.
In the case of search and capture and detention orders, they will also be automatically lifted, as will the rest of the precautionary measures imposed in both criminal and administrative or accounting procedures. This means that Puigdemont and the other former ministers who fled after the unilateral declaration of independence on October 27, 2017 could return to Spain once the arrest warrants are deactivated. However, as of the publication of the law in the Official State Gazette (BOE), the ball will be in the hands of the judges who will ultimately be the ones who must apply it.
In the case of those already convicted, the sentences will disappear, as well as the disqualifications and the criminal records will be erased. However, the amounts already paid by sentence will not be returned, nor will the charges be reinstated nor will anyone be compensated for these years.
The text explicitly determines that the amnesty "will not give the right to receive any compensation, nor will it give rise to the restitution of the amounts paid as a fine or penalty, nor will it exonerate civil liability towards individuals."
What it does state is that sanctioned or convicted public employees will be reintegrated into their full active and passive rights," as well as their reincorporation into their respective bodies, if they had been separated."
It is also expressly included that everything pardoned is annulled as well as what was left out in the pardon. In the case of the nine procés leaders convicted of sedition, with Junqueras at the head, the pardon measure for prison sentences was applied to them, which led to their release from prison, but the Government maintained their disqualifications. With the amnesty law, these will be eliminated and therefore the president of ERC will be able to run again as a candidate in elections.
Regarding all those officials who were affected by sanctions or removed from their positions after the application of 155 in Catalonia, they will recover their seniority but in no case will they be compensated or paid for the years not worked, that is, there will be no economic effects.
Apart from criminal cases, the bill presented, which is expected to be approved as soon as possible after the inauguration of Pedro Sánchez, also includes accounting cases. On November 17, the trial begins in the Court of Accounts for the foreign action carried out by the Generalitat since 2012 as well as for the expenses in the organization of 1-O.
There are around thirty defendants in this matter, several of them also with criminal cases and others only pending in this matter. The Prosecutor's Office demands the return of 3.4 million euros, which is what is estimated to have been used from the Catalan public coffers to promote the process as well as for the organization of the referendum.
Although the trial begins, the case will be closed as soon as the law is approved. In fact, the defenses are already planning to request the suspension of the trial in light of the agreement to approve the amnesty. In this case of accounting claim are the two former presidents Carles Puigdemont and Artur Mas as well as the main members of their governments.
In the case of Mas, he already has a conviction for 9-N and had to return, jointly with other defendants, close to 5 million euros for organizing the consultation. Although he is now amnestied, the law establishes that the amounts paid as fines will not be returned.
Title III of the law establishes a limitation period of 5 years so that those affected can request the amnesty recognized here. Additionally, the possibility of filing appeals against judicial resolutions that resolve on the application of this law is recognized.
In the first additional provision, the authors of the norm have chosen to modify article 130 of the Penal Code to expressly include amnesty as a case of extinction of criminal responsibility, in line with the provisions already contained in the Criminal Procedure Law. The purpose of the second additional provision is to modify article 39 of the Organic Law of the Court of Accounts, to adapt it to the entry into force of this law.
