The PSOE has reached a final agreement with the pro-independence parties to advance the amnesty law blocked by Junts due to fear of not being able to save its leader Carles Puigdemont from the judicial processes opened in Spain. The latest terrorism case linked to the Democratic Tsunami opened by Judge Manuel García-Castellón and now taken up by the Supreme Court has been the central axis of the negotiations. [Live: reactions to the agreement]
Below we explain the main legal keys of the text.
The main obstacle was terrorism. Junts wanted it to include all acts of terrorism linked to the process to guarantee the immediate application of the amnesty to Puigdemont. However, the socialists were aware that this crime had to be limited to guarantee the constitutionality cut.
The new articles establish the following: “acts that, due to their purpose, can be classified as terrorism, according to Directive (EU) 2017/541 of the European Parliament and of the Council, of March 15, 2017, relating to the fight against terrorism and, in turn, 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 Fundamental Freedoms, and in international humanitarian law.
The previous text stated it as follows: “The acts classified as terrorist crimes punishable in Chapter VII of Title XXII of Book II of the Penal Code that have consisted of the commission of any of the conduct included in Directive (EU) 2017/541 of the European Parliament and of the Council, of March 15, 2017, provided that, manifestly and with direct intention, they have caused serious violations of human rights, in particular, those provided for in Article 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in international humanitarian law.”
The interpretation of the Spanish Penal Code is excluded in the final text. This will allow Puigdemont to open a European battle over what terrorism is and its scope. The Supreme Court has opened a criminal case against him as a leader of the Tsunami Democràtic movement, which carried out “serious” altercations in Catalonia in protest of the sentence handed down by the high court for the process.
In the order by which it agrees to investigate, against the Prosecutor’s Office, the former Catalan president for terrorism, the Criminal Chamber warns that “the statement that emerges in some politicians and the media that only the actions of ETA or the Jihad deserve to be treated as terrorism, it is incompatible with the definition of terrorism derived from the current article 573 CP.”
The Supreme Court explains that to prove the crime of street terrorism, one of the following purposes must be carried out: subverting the constitutional order, seriously disturbing public peace, seriously destabilizing the functioning of an international organization or provoking a state of terror in the population. or in a part of it. For the Chamber, the conduct analyzed in the ‘Democratic Tsunami’ case fits into articles 573 and 573 bis.
Barcelona judge Joaquín Aguirre, who is investigating the Volhov case, recently pointed out the possibility of opening an investigation for treason against the former president for contacts with Russia to support the process.
To try to overcome this cause, the articles of the law have also undergone modifications. The final text, which has garnered the support of PSOE, Sumar, Junts, ERC, Bildu and PNV, attempts to close the circle as much as possible so that Puigdemont can escape. The initial text only said that the crimes of treason and against the peace or independence of the State and related to National Defense of Title XXIII of Book II of the Penal Code are excluded from the amnesty.
The new text goes further, to avoid interpretation by judges as much as possible. It says: “The acts classified as crimes of treason and against the peace or independence of the State and related to the National Defense of Title XXIII of Book II of the Penal Code, provided that both an effective and real threat and an effective use have occurred of force against the territorial integrity or political independence of Spain in the terms established in the Charter of the United Nations or in Resolution 2625 (XXV) of the United Nations General Assembly of October 24, 1970, which contains “the declaration concerning the principles of international law relating to friendly relations and cooperation among States in accordance with the Charter of the United Nations.”
The preamble of the text emphasizes the separation of power and warns the judiciary that it is the power of the legislature to articulate the amnesty.
On the one hand, it emphasizes that the objective of this law “is to finalize the execution of the sentences and judicial processes that affect all the people, without exception, who participated in the independence process.” This phrase goes along the line maintained by Junts all this time that its objective was to be able to include all of its people in the amnesty.
On the other hand, the new preamble emphasizes that it is up to the legislative power to establish the criteria to benefit from the amnesty “and it is up to the judicial power to identify the specific people included in the scope of application established by the legislator.”
During the negotiations of these last few days, an unforeseen event has occurred. The Venice Commission – advisory body of the Council of Europe – has gone to Spain to assess the legality of the amnesty. For now it has only presented a draft although it makes certain qualifications due to the way in which this law is being processed.
In the previous text, only a mention was made of the Venice commission to argue that it has validated the amnesty in other European countries. The new document includes a 2013 Commission report that makes the distinction between the legislator and the judiciary when setting an amnesty.
“In accordance with the guidelines of the Venice Commission, a precise and detailed definition has been established for the acts eligible for amnesty, in order to guarantee legal certainty and equality before the law. This is crucial, in particular, when addressing crimes of embezzlement, clearly differentiating between actions that can be amnestied and acts of corruption, to which such a measure is not applicable,” the preamble emphasizes.
In the new articles, the PSOE has agreed to further limit the crime of embezzlement that is amnestied. Both terrorism and embezzlement are the two most critical points for Europe, which carefully controls the corruption of States in addition to its focus on the fight against terrorism.
The new ruling differentiates between the use of public funds to support the process and personal enrichment. The Government already tried to introduce this difference when it modified the crime of embezzlement, but the Supreme Court warned that embezzlement is the improper use of public funds. Therefore, it will now be in the hands of the high court to interpret whether the crime of embezzlement for which the ERC leader, Oriol Junqueras, and eight other pro-independence leaders are convicted – once the crime of sedition was repealed – falls under the amnesty.
The new articles establish as amnestiable those “aimed at financing, defraying or facilitating” acts linked to the 9-N sovereignty consultation and the 1-O referendum “directly or through any public or private entity, provided that there was no purpose of enrichment, as well as any other act classified as a crime that has the same purpose.”
The independentists have also managed to get the PSOE to agree to extend the amnesty period and move from January 2012 to November 2011 as the beginning of the events that can be amnestied. This change is forced so that all those who have an accounting process in the Court of Accounts benefit from the improper use of public funds to organize the 9-N and 1-O consultations in addition to promoting the process abroad.
The text presented by the PSOE in November refused to return the money in cases that had already been finalized and for which fines had been paid, in addition to rejecting any compensation. However, the new text opens the door to returning the sanctions imposed by the citizen security law, “except for very serious infractions.”
With this new agreement, the PSOE considers the amnesty negotiations definitively settled. The new articles are now approved by the Justice Commission for next week to go to a vote in the plenary session of the Congress of Deputies.
Once this process has been completed, the law must be sent to the Senate for processing and from there return to Congress for final approval and publication in the Official State Gazette (BOE).
