The position of the former president of the Generalitat Carles Puigdemont has made a 180 degree turn now that the seven Junts deputies in Congress have the key to reinvest Pedro Sánchez as president of the Spanish Government. Junts has said that they will not do it “in exchange for anything”, a statement that suggests a high price. The former president has always rejected a personal solution to his situation and that is why he is flagging the amnesty, which would put an end to the persecution against all the people who allegedly committed criminal offenses during the process, and ultimately instance would prevent him from arriving in Spain arrested and sent to pre-trial detention before being tried.
But can the PSOE really offer Junts a commitment so that Puigdemont emerges unscathed from the judicial situation that threatens him? As requested by Junts, the most effective thing would be for the socialists with the rest of the parties to push forward an amnesty law, similar to the one approved in 1977, to exonerate from legal cases, trials and convictions all those who have been involved in the process For now, the socialists have not even wanted to hear about this possibility, and claim that the amnesty approved almost fifty years ago was to free political prisoners from the dictatorship of Francisco Franco, a situation that they believe is very different from the current one.
Even some leaders of the PSOE have gone so far as to say in public that an amnesty would be unconstitutional. However, what the Constitution expressly prohibits are collective pardons. The measures of grace must be individualized and signed by the king, as was done with the leader of ERC, Oriol Junqueras, and the other eight convicted of sedition. A pardon, with its own argumentation, for each of them. Some constitutionalists consider that, by a rule of three, if general pardons are prohibited, amnesty is more rightly so. But other experts disagree with this thesis, given that the Constitution does not say anything about amnesty, so the PSOE would have some leeway to present a law proposal in this regard. Another thing is that the current president in office is willing to play this card.
For the former president, this would be one of the few real options that could save him from a trial.
To receive a possible pardon, Puigdemont would first have to be extradited to Spain, tried and convicted, and that would mean some time in prison. The measure of grace cannot be granted in advance, but only when there is a final sentence. In addition, if Sánchez did not reach Moncloa, the leader of the PP, Alberto Núñez Feijóo, could obtain a sufficient majority in new elections to govern. In this case, in addition to recovering the crime of sedition – which would no longer affect the former president because it would be unfavorable to the person affected -, the options of obtaining a pardon would be practically nil, and even less so with Vox as a partner government
The option of stopping the European arrest warrant has already been ruled out, because the four prosecutors in the process asked the investigating judge Pablo Llarena to reactivate it the day after the elections. The judge cannot reactivate it if it is not at the request of the prosecutor. The Supreme Court judge had withdrawn it so that the European courts could resolve two cases that were pending and which have already been answered. The first was the preliminary question, for the Court of Justice of the European Union to determine whether Belgium – the country where Puigdemont currently lives – has the power to refuse the extradition of a leader considered a fugitive from justice. And the second was the response to an appeal by Puigdemont against the European Parliament’s decision to withdraw his immunity. In neither case has the former president had a favorable response. Sources from the High Court believe that the former president’s options for maneuver are limited after the two European decisions.
So if Llarena reactivates the Euroorder, the Belgian courts will have to rule. It remains to be seen whether it harms Puigdemont that the crime for which he is being claimed is no longer that of sedition, which created controversy in other countries of the European Union. After it was repealed, Llarena prosecuted him for embezzlement of public funds.
Another issue that the ex-president must take into account is that if he does not manage to stop his arrival in Spain, his entry into pre-trial detention is highly likely. And in the hypothetical case that the Prosecutor’s Office opposes it, in the judicial process Vox is personified as a popular accusation, so the judge will have the option of applying it. What he could achieve is an approach to a Catalan prison, since that does not depend on the judge, but on the Interior.
These are the options planned for now, but both Puigdemont and Sánchez still have room for maneuver to look for new solutions.