Puigdemont's judicial future, between the Supreme Court and the amnesty

After an unusual fight between the prosecutors of the Supreme Court, the number two of the State Attorney General's Office has set this Thursday the final opinion of the public ministry on the accusation of Carles Puigdemont in the Democratic Tsunami case. The lieutenant prosecutor, María Ángeles Sánchez Conde, considers that there is not enough evidence to incriminate the former Catalan president or the other accused involved, the Parliament deputy Rubén Wagensberg, which is why she demands that the Supreme Court close the investigation against both and return the case to the National Court to continue investigating the case regarding the rest of those investigated.

The prosecutor's brief responds to the request that the Criminal Chamber made to the public ministry on January 22 to rule on whether the Supreme Court should take on this case. The high court is obliged to know the opinion of the Prosecutor's Office, but not to follow it, so it will be the magistrates who, in the coming days, will decide whether or not to investigate Puigdemont and for what crimes. The rapporteur for that decision will be Judge Juan Ramón Berdugo —one of the seven members of the court that handed down the 2019 conviction against the nationalist leaders for the illegal self-determination referendum and the unilateral declaration of independence in October 2017—, who will submit your proposal to the Admission Room.

From there, several possibilities open up. The first, that the Supreme Court assumes the position of the Prosecutor's Office and considers that there is no evidence to support an investigation against Puigdemont and Wagensberg. In that case, the court will return the case to the judge of the National Court Manuel García-Castellón so that he can decide whether he continues investigating the platform that promoted the protests against the sentence of the process, but leaving the two accused out of that investigation.

But the Supreme Court can contradict the public ministry and consider that there is sufficient evidence to open a case against Puigdemont. In that case, the Admission Chamber must decide whether to assume the exclusive jurisdiction of the Tsunami case or if the investigation is left only to those authorized and leaves the rest in the hands of the Court. García-Castellón defends in his reasoned statement that the high court be the one in charge of the investigation alone, considering that the facts attributable to the accused are not “separable” from those attributed to the rest, a criterion that the Prosecutor's Office shares. in the letter sent this Thursday to the Criminal Chamber.

The jurisprudence of the high court establishes that “the reasonable possibility that the events described in the reasoned statement” have occurred will be sufficient for the Supreme Court to open an investigation. If it does so, the Admission Chamber will set out in an order what evidence justifies the investigation and, according to legal sources, that resolution will delve into whether the facts described by García-Castellón fit into the crime of terrorism, a decision on which, They assure, there has been no deliberation until now while awaiting the brief from the lieutenant prosecutor.

In the high court, it was surprising that Sánchez Conde has not set his criteria on the crimes attributable to Tsunami and, despite this, demands that the case be returned to the National Court, which is only competent to investigate the platform if there is a crime. of terrorism. In the event that, as the Court's prosecutor considers, it involves a crime of public disorder, the case should be sent to Catalonia.

If the Supreme Court takes over the case upon seeing evidence against Puigdemont or Wagensberg, the Admission Chamber must appoint a magistrate as an instructor to take charge of the investigation. What is foreseeable is that this judge, appointed by distribution shift, will summon all those under investigation to testify, including Puigdemont – who has fled Spain since 2017 -, in case he wants to voluntarily appear to testify before the investigator. In the more than foreseeable case that the former president rejects that invitation, the instructor will not be able to act against Puigdemont without the permission of the European Parliament, which would have to vote on whether to lift the immunity that all MEPs enjoy, as already happened with the cause of processes.

The decisions made by the Supreme Court on the Tsunami case They are going to run, predictably, in parallel to the processing of the amnesty law for those accused of the process, stuck now precisely on how to protect the grace measure for those accused of terrorism. The current wording proposes amnesty for all cases of terrorism, except those that, “manifestly and with direct intention,” have caused serious human rights violations (death, torture or degrading treatment). The PSOE maintains that this text guarantees amnesty for those accused in Tsunami, but García-Castellón's latest rulings point to signs of human rights violations such as those cited in the law, which led Junts to vote against the norm to force a new negotiation. The final text of the rule and the resolutions that the Supreme Court adopts will determine the judicial future of the former president of the Generalitat.

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