Has the PSOE changed the law as Junts demanded? Since Carles Puigdemont’s party voted against it in the plenary session of Congress on January 30, the PSOE has insisted that it would not touch the law. Some ministers expressed themselves more forcefully than others. The truth is that the rule has been tweaked, although along the same lines that the PSOE defended. That is to say, the exclusion of terrorism or treason has not been eliminated, as Junts claimed, but nuances have been introduced. Nor could the PSOE give in to all of Junts’ demands, since it was necessary to keep ERC in favor. The Republicans are fed up with their pro-independence rivals always ending up having the last word in negotiations with the PSOE. Hence they insist that the law is substantially the same as when Junts refused to support it. The changes in the rule respond to the latest movements of the judges and try to shield it from possible interpretations that limit its application.
What are the fundamental changes? Basically three, which affect the crimes of terrorism, treason and embezzlement. Let’s see:
1. The law maintains that amnesty cannot be granted for crimes of terrorism and high treason, but refers to European and international regulations when defining them and not to the Spanish Penal Code. It’s the big difference. Because? The Supreme Court has assumed that it will investigate Carles Puigdemont and other pro-independence leaders for terrorism due to the actions of the Democratic Tsunami, the most important being the occupation of the runways of El Prat airport in 2019. The high court considers that they could be terrorism based on the fact that The Penal Code defines it as any serious crime whose purpose is to subvert the constitutional order, destabilize the functioning of institutions or seriously disturb public peace. It is a comprehensive draft resulting from the fight against street terrorism by ETA or that of the “lone wolves” of jihadism, not members of an armed criminal organization. That is why it has been decided to refer to the 2017 European directive on terrorism. The current wording of the amnesty law slips an implicit distinction between serious terrorist acts and others that would not be considered that way, since it emphasizes that those who are excluded from forgiveness They are those committed with the intention of causing serious effects. In this way, it seeks to avoid the possible judicial accusation of “low-intensity terrorism” or “street terrorism” by the Supreme Court, which took on the case based on precedents of convictions for that type of crime, for example, against Jarrai.
2. In the case of betrayal, something similar happens. It is excluded from the amnesty “provided that there has been both an effective and real threat and an effective use of force against the territorial integrity or political independence of Spain in the terms established in the United Nations Charter.” In this way, it responds to the National Court’s intention to investigate Puigdemont and other pro-independence leaders for high treason for their contacts with alleged Russian spies so that that country would support the secession of Catalonia. The legislator tries to make it clear that these connections did not represent a “real and effective threat” to the unity of Spain. In fact, the ‘procés’ ruling highlights that this was never in danger. In Europe, there is concern about these possible links with Moscow, which is why it is essential for the Government that there is no sense of any kind of forgiveness towards the connivance of the Catalan independence movement with the Putin regime. Referring to international legislation is a guarantee for the EU.
3. And, finally, the law insists that embezzlement that entails personal enrichment will not be amnestied, but the spending of public money in the organization of the referendum and in the promotion of the independence process will be amnesty. The latter – like the previous section – would affect, for example, Josep Lluís Alay, Puigdemont’s collaborator, in addition to other leaders. It is a path that the Government already tried with the change to the Penal Code that it agreed with ERC a year ago, although its effects were not what the promoters of the text expected. The socialists downgraded a type of embezzlement, which did not entail personal gain, but the Supreme Court judges interpreted that the leaders of the ‘procés’ had taken public money to “obtain a private benefit,” even if this was the organization of the 1- EITHER. That reform of the Penal Code already meant significant political wear and tear for the Government, since a sentence for corruption was reduced, something difficult to explain in Europe as well.
What is going to happen now with Puigdemont?
The law will be approved in Congress and will then go to the Senate, where the PP plans to extend its processing for two months, and then return to the Lower House and see the light definitively in the BOE. It is estimated that this could happen before the European elections on June 9. This has given rise to speculation about a return of Puigdemont by then, since the former president will be a Junts candidate in those elections. But his return is unclear. Puigdemont will not return without guarantees that he will not be arrested. Now he himself has two open cases: that of 1-O and the new one opened for terrorism and treason.
For the 1-O case, the investigating judge, Pablo Llarena, will lift the precautionary measures against him once the amnesty law is published and will refer the matter to the Second Chamber chaired by Manuel Marchena. This, in turn, before deciding whether said law applies to it, will submit a consultation to the Court of Justice of the EU and that paralyzes the procedure. That is to say, the amnesty could not be applied to him in particular (it could be applied to other defendants in other courts) until the opinion of the European judicial body is known. In principle, if Llarena withdraws the arrest order, Puigdemont could return, but Marchena’s action raises doubts and the former president does not want to “do a Ponsatí.” The former councilor returned almost secretly and the police detained her so that she could go before the judge, although she was later released.
Due to the terrorism case, it is most likely that Supreme Court Judge Susana Polo will call Puigdemont to testify. Even if he does not appear, he will not be able to order his arrest, since he is an MEP and must first request the corresponding request from the European Parliament. It is something that the Supreme Court already did for the 1-O cause and that lasted for more than a year until the European Parliament withdrew his immunity so that he could be investigated. Now he would have to face a similar process for the issue of terrorism. Thus, the judicial journey may lengthen the application of the amnesty for Puigdemont and some other defendants. On the other hand, the vast majority will be able to benefit as soon as the law is published in the BOE.
Regarding the political effects, the amnesty law deepens the confrontation between the Government and the Spanish high judiciary. Also between a parliamentary majority and the judges. A new front is opening up for political polarization that will have future consequences, although it is still too early to see them. In Catalonia, on the other hand, a new political stage will open that contributes to closing the process, when there is barely a year left for the regional elections, if they are not brought forward. The struggle between the parties will focus more on issues other than independence, something that the PSOE hopes will favor Salvador Illa. Paradoxically, the competition between Junts and ERC will focus on Madrid, competing for the results of their negotiations with Pedro Sánchez, which may harm the President of the Government. The pact for the amnesty law is the necessary preamble to approve the State Budget, Sánchez’s true key to completing the legislature. Junts knows that a rejection of the accounts would not be understood in Catalonia, nor in its ranks, but it will not make the negotiation easy for the PSOE either.
