2023-09-23 07:25:38
As the approval of an amnesty law for the independence movement by the “procés” takes shape – the sovereigntist parties take it for granted and Pedro Sánchez opens the door unequivocally -, the focus inevitably shifts towards the courts that They will have to execute it by agreeing to archive all the procedures linked to the 2017 separatist challenge in Catalonia, with the Supreme Court (TS) at the head.
At the top of the judiciary they have assumed that the amnesty will occur and are only waiting to know the content of the bill that the PSOE is drafting to activate a “reaction formula,” say sources from the high court, which passes for raising before the Constitutional Court (TC), “if appropriate”, a question of unconstitutionality or even for taking the issue to the European Justice through a preliminary ruling so that the Court of Justice of the European Union (CJEU) can rule . In this second case, these same sources add, the Supreme Court would influence the objections of the European Commission to the reductions in sentences for the crime of embezzlement (approved in the penal reform that repealed the sedition for which the main leaders of the “procés” were convicted. »).
With the caution required by ignorance of the final text, they do anticipate that the constitutional fit of the measure “does not exist, it is not possible.” And taking as a reference the ERC and Junts bill that Congress rejected in 2021 – which established the effects of the amnesty from January 2013, imposed the return of the deposits and set a period of two months to apply it –, its opinion is conclusive: “If it is something similar, of course it doesn’t fit and we will look for a reaction formula.”
Once this more than possible question of unconstitutionality was raised by the instructor of the “procés” case, Pablo Llarena, the application of the amnesty (with the consequent archiving of the proceedings regarding all the accused, convicted or not) would be suspended. until the TC ruled on the constitutionality of the measure.
And it will finally be the Constitutional Court, with a progressive majority, that will finally have the last word on the endorsement of the amnesty law. “We are in a phase of political debate in which the court has nothing to say, nor can it be disturbed by speculations without any foundation,” point out sources from the court of guarantees, that there is no prior position because “there is no recourse to study, not even a legal text that could be challenged,” despite which, they complain, “we are overwhelmed with constant speculation.”
“It’s a pure misuse of power.”
According to those same sources, “there is a lot of discomfort among the magistrates, of both stripes, due to the fact that they are trying to get involved in a political debate that does not concern them.” The TC, they emphasize, “cannot have any criteria on a hypothetical appeal related to a non-existent law.”
But although behind closed doors the magistrates are logically silent, some of them rule out that the amnesty has a constitutional fit. Sources from the conservative bloc. «The amnesty is a mechanism typical of a change of regime. Legally, it represents the delegitimization of the judicial power, because it prevents it from carrying out its constitutional function of judging and enforcing what is judged. “It is an interference or interference in the jurisdictional function that denatures it,” they say.
These same sources describe the measure as “discriminatory”, as it violates the principle of equality, and “arbitrary”. “It is a pure misuse of power, especially considering that there is no justification that supports it beyond the search for some votes for a political agreement.”
And they reject similarities with similar measures: «The amnesties of the Second Republic have nothing to do with it because they were provided for in the Constitution of that time. The amnesty in Ulster is not the same because there were two opposing parties, as in Franco’s regime. And the pardons to the members of the UMD (military members of the Democratic Military Union who were expelled from the Army during the Franco regime) were granted to specific people.
“A contradiction and an inequality”
Among jurists, opinions on the fit in the Magna Carta are divided. Agustín Pérez-Cruz, professor of Procedural Law at the University of Oviedo, considers that “the amnesty is unconstitutional because it contravenes articles 1, 9.3, 14 and 117 of the Constitution and because it goes against the principle of division of powers, one of the basic principles of the social and democratic state of law. Furthermore, he adds, “it is not contemplated in the procedural legislation.” Pérez-Cruz explains that “the reference to amnesty, in article 666 of the Criminal Procedure Law, must be understood as tacitly repealed, since all the precepts of this regulation, from the 19th century, in light of the Constitution.”
For his part, lawyer Ignacio Fuster-Fabra assures that a possible fit into the Magna Carta of the amnesty “would mean a contradiction and inequality in the legal order contrary to the Constitution, by directly affecting the judicial power, which is the one that holds the power.” ability to judge and have what is judged executed. A measure that, he adds, would also be “unequal, as it does not apply equally to all people, resulting in the violation of a fundamental right.”
The lawyer affirms that “it makes no sense to cling to the idea that since the amnesty is not expressly prohibited in the Constitution, it can be understood as permitted. As is evident in legal logic, it contravenes the fundamental principles and pillars of the Constitution. “Public powers are and must continue to be subject to the legal system – he emphasizes – and must limit themselves to doing what the legal system allows them to do.”
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