Congress approves the amnesty law: questions and answers about its application

The Congress of Deputies approved this Thursday the amnesty law, with which the Government and its partners seek to close all legal cases linked to the processes independence movement to promote “institutional, political and social normalization in Catalonia.” The bill that the PSOE registered last November – to achieve in return the essential support of Junts and ERC for the investiture of Pedro Sánchez – has been modified twice until reaching the text that has been submitted to the final vote. With these changes, an attempt has been made to ensure that the measure benefits all defendants – more than 400, according to the negotiators’ calculations – and that it obtains the endorsement of the Constitutional Court and European justice when it is their turn to rule. The rule will begin to unfold some of its effects once it is published, expected next week, in the Official State Gazette (BOE).

What crimes can be amnestied and which cannot?

The amnesty implies leaving unpunished all crimes committed between November 1, 2011 and November 13, 2023 “in the context of the so-called Catalan independence process.” Both the acts directly linked to the two illegal independence consultations held in Catalonia – the consultation of 9-N 2014 and the referendum of 1-O 2017 – and those not expressly related to the consultations but to the demand for independence.

The amnesty has exceptions. Acts that can be classified as terrorism in accordance with the 2017 European directive are excluded, as long as they “have intentionally caused” serious violations of human rights regulated in articles 2 and 3 of the European Convention on Human Rights (articles that refer to the right to life and the prohibition of torture). Nor will amnesty be granted for acts that would have caused death, abortion or serious injuries. Furthermore, the crimes of torture or inhuman or degrading treatment described in article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, except those “that do not exceed a minimum severity threshold.” The embezzlement of public funds will be amnestied if it was intended to finance acts linked to the processes and “as long as there has been no purpose of enrichment”, understood as “personal benefit of a patrimonial nature”.

How will the amnesty be applied?

To be effective, the law must be applied by each court that has already issued a ruling or that has opened a procedure affected by the grace measure. The text establishes that the courts will apply the amnesty “on a preferential and urgent basis”, for which they are given a maximum period of two months from the entry into force of the law. But this will begin to unfold some of its effects once, after its approval in Congress, it is published in the Official State Gazette (BOE), expected next week. At that moment, with the norm in force, the judges must “immediately” lift the search and arrest warrants and imprisonment, the national, European and international arrest warrants and any precautionary measure that had been adopted on the potential beneficiaries of the amnesty. This will force, for example, the bailiffs imposed by the Court of Auditors to be returned to the accused.

Who will benefit from the amnesty?

The law benefits, according to its promoters, almost 400 people, including politicians and public officials, citizens prosecuted for the riots following the 2019 Supreme Court ruling, and police officers. The PSOE and its partners seek that the amnesty puts an end to both the disqualification that Oriol Junqueras and other members of the Government who have already been tried continue to serve, as well as the case opened against Carles Puigdemont and the former councilors who fled with him to Belgium. In addition, the former senior officials of the Generalitat accused of the preparations for 1-O and the international promotion of the 1-O will not be tried. processes.

Amnesty was also granted to those involved in two cases opened for crimes of terrorism: that of Tsunami Democràtic – which Judge Manuel García-Castellón is investigating in the National Court and the Supreme Court in relation to Puigdemont – and that of the CDR, the latter already in the oral trial phase. And the voloh casein which a judge from Barcelona investigates the alleged contacts between the Generalitat and Putin’s Russia to destabilize Spain with the processes.

The police and civil guards prosecuted for crimes of injuries in the police charges of 1-O (73 agents, according to calculations by the law’s negotiators) will also be amnestied.

What happens if the law is appealed?

The amnesty can be appealed before the Constitutional Court by deputies, senators or the autonomous communities, but the bill establishes that these appeals “will not have suspensive effects”, so the grace measure would have to be applied within a period of two months. , whether or not it is appealed. The case of unconstitutionality issues before the Constitutional Court or consultations with the Court of Justice of the EU (CJEU) is different, which are those that can be presented by the courts that have to apply the rule. Both things would paralyze the application of the amnesty in the specific case for which said question arises, until the Constitutional Court or the CJEU rule.

When will Puigdemont be able to return to Spain without fear of being arrested?

As the law establishes that, once in force, the judges (the Supreme Court, in the case of Carles Puigdemont) must “immediately” agree to the lifting of precautionary measures and arrest warrants, the high court would have to leave without effect of the national arrest warrant that has been imposed on the Junts leader since November 2017, when he fled Spain. However, sources from the Supreme Court assure that, before taking that step, the opinion of the Prosecutor’s Office and the rest of the parties must be sought. They will be given a period of 10 business days to respond, so it is foreseeable that the Criminal Chamber will not issue any resolution on the arrest order until mid-June.

If the court chooses to lift the arrest warrant, the former president of the Generalitat will be able to return to Spain without risk of being arrested. Due to the Democratic Tsunami, the Supreme Court has not yet issued any measures, although it has summoned the Junts leader to testify by videoconference between June 17 and 21. The instructor, Susana Polo, will have to communicate before that date if she maintains the appearance.

Until when will Oriol Junqueras remain disqualified?

Oriol Junqueras, president of ERC, was pardoned from the prison sentence by the Government in 2021, but the disqualification sentence was maintained, which will now expire with the amnesty. Although if the high court refers the case to the CJEU, the application of the grace measure would be suspended, and in that case the disqualification will remain in force until there is a response. Legal sources estimate the duration of the procedure in the European Court between eight and 18 months. And, once the European justice system answers, the Supreme Court can go to the Constitutional Court, which would once again delay the application of the law to the former vice president of the Generalitat.

Can the courts not apply the amnesty?

The intention of the parties that promote the law is to benefit all defendants, but the judges will have the last word. This is established in the preamble of the norm: “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.”

What is foreseeable is that, if the judges have doubts, they will ask the European justice or the Constitutional Court. But if, from the outset, they consider that the measure of grace is not applicable at all to the case that they are responsible for studying, they could reject it outright. This situation could occur in cases opened for crimes of terrorism or embezzlement, the most controversial.

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