“The difficult part of the amnesty will come once the law is approved in the Official State Gazette.” A parliamentary source from one of the groups that has supported the final text approved on Thursday in the Justice Commission of the Congress of Deputies, for its passage to the plenary session next week, expresses this pessimism. Those who defend this measure – to achieve the normalization of Catalonia or to remove the general budgets of the State from Pedro Sánchez – are aware that the return of Carles Puigdemont to Spain with the absolute guarantee of being free of dust and straw is not going to be immediate.
Until the last moment, his party has tried to support the text as much as possible so that the former Catalan president can benefit from the amnesty and return to Spain, in the fall at the latest. However, various judicial sources consulted predict that this path will not be so simple. From the pro-independence formations they defend that as soon as the law is approved, the established precautionary measures will have to be lifted, including that of the leader of Junts, and there will no longer be anything that prevents them from being in Spain without fear of being arrested.
This position is well stated with respect to the case that Puigdemont and other former Government councilors who called the referendum of October 1, 2017 have open in the Supreme Court. A national arrest warrant is in effect for Puigdemont, which means that if he enters Spain, he will be detained immediately. Sources from the High Court confirm that this order would be lifted, based on what is articulated in the draft of the law.
However, the Supreme Court will not file the cases immediately. The first thing you will do is analyze the law and interpret it to know if both the cause of the process and the Democratic Tsunami are amnestiable. The text itself recognizes that it is the legislator's job to set the terms of the law and the judiciary's job to interpret it to know who can benefit from it. The law includes crimes and acts that must be amnestied, but not people.
In the case of the process, the crime charged is embezzlement of public funds.
In Sánchez's previous legislature, this crime was already modified while sedition was repealed to try to reduce the penalties of 1-O as much as possible. However, the Supreme Court interpreted it differently than the legislator's intention. It determined that the lack of profit cannot be separated from this crime. What the PSOE has done now together with Junts and ERC is to re-establish the doctrine of the High Court and state that all crimes of embezzlement that do not entail personal enrichment will be amnestied. The Supreme Court will have to reinterpret this expression and determine what such enrichment refers to and whether Puigdemont had it when using public funds to finance the process.
The second case that affects the former president is the one opened for a crime of terrorism for exercising a “leadership role” in Tsunami Democràtic, organizer of the protests against the sentence of the process and which caused strong riots at the El Prat airport in October 2019. Sources from the High Court explain that as the text of the amnesty is contemplated, the crime of terrorism for which Puigdemont is being investigated would be within the exemptions of the law. The case would continue.
Legal sources explain that now the designated instructor must analyze all the documentation sent by the judge of the National Court who initiated the case, Manuel García-Castellón. Once studied, she will proceed to offer the former president to testify voluntarily. As he is qualified due to his status as an MEP, he is not obliged to appear. In this case, the Supreme Court must send a request to the European Parliament to authorize proceeding against a member of the Chamber. It so happens that there are elections in June, but these sources explain that Puigdemont will not lose his immunity unless he does not appear and then another deputy takes his seat. If he appears again, the request will be mandatory.
Only in the hypothetical case that the Supreme Court had doubts about the application of the amnesty should it go to the Constitutional Court or the Court of Justice of the European Union (CJEU) with a preliminary ruling. Sources from the guarantee court explain that these issues could leave the application of the amnesty on hold for a long period, turning its effectiveness into an arduous and complicated process. Thus, they indicate that the rule established until now is that the TC does not begin to evaluate the law until Europe pronounces itself, which could move the resolution of the judicial conflict months or even years.
This new phase will not begin until the law is definitively approved. Once it passes the plenary session of Congress next week, the text must be sent to the Senate, and from there return to Congress for final approval. Parliamentary sources estimate that its publication in the BOE could be in June.
