The former president of the Generalitat Carles Puigdemont will be the Junts candidate for the presidency of the Generalitat on May 12 and has committed to setting foot on Spanish territory again if he is able to gain a sufficient majority to be sworn in even if he may be arrested. It is more than likely that when the investiture debate takes place, the amnesty for the events of the process will already be in force, but this does not prevent the now MEP from being arrested in Spain. There are many factors that can influence this situation, such as the calendar, the national arrest warrant, the suspensive effects of a question referred to the CJEU for a preliminary ruling…
According to the decree calling for the elections of May 12, June 10 would be the last day for the constitution of the new Parliament and within 10 business days the first investiture debate should take place, that is, before May 23. June. By those dates the Amnesty law, which this week began to be processed in the Senate, should be in force, since two months after its entry into the Upper House the bill must be returned to Congress for final approval if There are amendments or vetoes, as is predictable given the absolute majority of the PP. This should occur in the second half of May. However, the main opposition party has raised an institutional conflict between the Senate and Congress and is threatening to appeal the procedure to the Constitutional Court, although it remains to be seen whether its strategy can actually delay the final approval of the amnesty.
Puigdemont is under an arrest warrant in Spain issued by the judge in the trial case, Pablo Llarena, which, by virtue of the entry into force of the amnesty, at the end of May, should be annulled. This is stated in one of the sections of article 3 of the law: “The judicial body that is hearing the case will proceed to annul the search and capture orders and imprisonment of the people to whom this amnesty applies.” , as well as national, European and international arrest warrants”. And it adds: “the suspension of criminal proceedings for any reason will not prevent the lifting of those precautionary measures that had been agreed upon prior to the entry into force of this law and that implied the deprivation of the exercise of fundamental rights and public freedoms.” To apply the decisions derived from the entry into force of the amnesty, the judges have, however, a period of two months, so that by the end of July the cases should be resolved. That being said, various questions and scenarios arise.
It is foreseeable that the Supreme Court will raise a preliminary ruling question to the Court of Justice of the European Union with the aim of clarifying doubts about the compatibility of the norm with community law, which, according to article 23 of the Statute of the CJEU , would imply the suspension of the procedure. However, article 10 of the Amnesty Law indicates that the decisions that the courts must make “shall be adopted within a maximum period of two months, without prejudice to subsequent appeals, which will not have suspensive effects”, which could come into contradiction with the CJEU.
Although Llarena annulled the national arrest warrant for the cause of the process, the Supreme Court, which took up the Democratic Tsunami case – which Judge Manuel García-Castellón is investigating in the National Court for terrorism crimes – only with respect to Puigdemont and to the Republican deputy Ruben Wagensberg for being out of capacity, could activate another arrest warrant if he makes a broad interpretation of the exclusions included in article 2 of the criminal forgetfulness rule and considers that the crimes attributed to the former president are not amnestiable. Specifically, the text of the law excludes terrorist crimes that “have intentionally caused serious violations of human rights, in particular those regulated in articles 2 and 3 of the European Convention for the Protection of Human Rights and Freedoms.” Fundamentals, and in international humanitarian law”. It should be noted that one of the amendments that Junts forced left the Spanish Penal Code out of this article with the aim of making it difficult for judges to link the Tsunami cause with terrorism.
The European Parliament lifted Puigdemont’s immunity as an MEP in March 2021 by granting the request requested by the Supreme Court, but the issue is pending an appeal to the CJEU and de facto the former president of the Generalitat maintains this protection until it is resolved. the resource. This was confirmed when the former president was arrested on the island of Sardinia in September 2021 by virtue of Llarena’s euro warrant, an arrest that only lasted a few hours precisely by virtue of his immunity. On a theoretical level this immunity should protect him from arrest in Spain, but in practice he would not do so. In any case, the de facto leader of Junts announced yesterday that he was giving up, as he had initially planned, to attend the European elections to do so in the Catalan elections, so his immunity will end when the new European Parliament is formed, on the 16th. July, or until he assumes an incompatible position such as that of deputy in the Parliament.
If finally, as the polls indicate so far, Puigdemont does not obtain a sufficient majority to be invested – the barometer of the CEO (the CIS of the Generalitat) yesterday left a remote crack open to that possibility – and cannot be invested, Puigdemont would remain in Belgium, where he has resided since the fall of 2017, until the resolution of the situation but without immunity after leaving the European Parliament. If the Supreme Court decided not to apply the amnesty, whether due to the process or the Tsunami, Puigdemont would have the option of staying in Belgium, whose justice system already rejected the surrender of former minister Lluís Puig in 2021, considering that the Alto The Spanish court was not competent in the case and that there was “risk of violation of the presumption of innocence.”
