JUSTICE A law with 16 articles that amnesties terrorism but avoids 'lawfare'

The bill registered this Monday in Congress is the result of three and a half months of negotiation between Pedro Sánchez’s envoys, on the one hand, and the Catalan independence movement and Sumar on the other. These are the main points of the 16 articles and three provisions in which the norm has remained:

The answer to the essential question is not concise. The objective scope of the standard is contained in its first article, which is very long and has several sections and subsections. All acts that have led to criminal, administrative or accounting cases and that had the objective of “claiming, promoting or procuring the secession or independence of Catalonia” will be amnesty. And it specifies that this includes what is related to the two illegal consultations, that of November 9, 2014 and that of October 1, 2017. Added to that are all episodes of “disobedience” of any kind, including public disorders such as those of the protests against the sentence of the process.

Beneficiaries with cases in some phase of processing will see them archived. Those who have a final conviction pending will have their cases reviewed. Final sentences will be reviewed by the person who issued them. For example, the Supreme Court should review its sentence of the process to revoke it, thus deactivating the disqualification that Oriol Junqueras, among others, continues to serve.

It may not seem like it, but yes. In the articles, the word terrorism appears only in the second article, the one referring to what is “excluded” from the amnesty. It establishes that “acts classified as terrorist crimes” are not amnesty… when there is already a “final sentence.” And nothing linked to the process has it. There are only two related cases in the National Court that contemplate terrorism – that of the CDR and that of Tsunami Democràtic – and neither has yet gone to trial, so there is no final ruling. And since they affect events that sought the independence of Catalonia, they fall within the broad definition of the first article, which indicates which events are amnestied. Thus, the intention of the law is to archive the CDR case and the Tsunami case, in which Marta Rovira was accused and Carles Puigdemont is on the way to being accused.

The word that has stirred up the legal world in general does not finally appear in the text. Not even hidden under its usual definitions, such as “judicial war” to pursue independence. In fact, it seems to rule it out when the Explanatory Memorandum states that it seeks to “prevent the amnesty from covering other types of acts not directly connected to the independence process.”

However, and despite this literality, the approach to lawfare is contemplated in a second phase. This is contemplated in the pact signed by Junts and the PSOE, which provides for congressional investigation commissions to point out these alleged cases of judicial abuse and propose reforms to the law to include them in the amnesty. This would supposedly include cases such as the laundering of drug trafficking by Puigdemont’s lawyer, Gonzalo Boye, and that of Junts leader Laura Borrás for giving contracts to a friend.

The law specifically states that outstanding warrants will be deactivated. Even, and this is relevant, when a question of unconstitutionality about the rule is presented before the TC, something that is taken for granted in the Supreme Court. “The entry into force of this law will imply the immediate lifting of the precautionary measures that have been adopted […], even when an appeal or question of unconstitutionality against this law or any of its provisions takes place” .

Issues of unconstitutionality paralyze the procedures, but in this case it is wanted that the precautionary measures cannot remain in force. If the Supreme Court complies with this point and deactivates the national arrest warrant against Puigdemont, the former president could return to Spain without fear of being arrested, although the application of the amnesty was still pending the Constitutional Court’s ruling.

Yes. This is stated in one of the sections of the first article, which indicates what the amnesty covers: “Actions carried out in the course of police actions aimed at hindering or preventing the carrying out of the acts determining criminal or administrative responsibility included in this article. “. This affects fifty agents who are currently charged. There have been no convictions so far.

In their first amnesty proposal brought to Congress in 2021, the independentistas did not include the agents in the pardon measure. The text released today does, but with a limitation. It is specified that it will not exonerate from responsibility those who are attributed actions that have caused certain injuries or inhuman treatment in accordance with international regulations. Some of the charges in force today fall into these categories, so the benefit to members of the Security Forces could be only partial.

The amnesty frees those responsible for 1-O from having to return the public money they spent on the consultation and, in general, on promoting the cause of independence abroad. This benefits around thirty officials of the Generalitat, including former president Puigdemont and former vice president Junqueras. The Prosecutor’s Office claims 3.4 million, part for 1-O (1.2 million) and part for the foreign action of the Generalitat through Diplocat (2.2 million).

The trial for these events is scheduled for the 17th. Nothing prevents it from going ahead, although the intention of the accused is that it be suspended in view of the imminent entry into force of the amnesty law, which should lead to the file of the case and the return of the deposits.

On the other hand, it establishes that the amnesty does not give the right to claim fines already paid. As for the investigations of the Court of Auditors, what has already been paid for a conviction is paid. The amount paid cannot be claimed to satisfy, for example, the sentence for the expenditure of public money on 9-N. The proposed law cannot serve as a basis for requesting compensation in court for having been subjected to a procedure of which Now they are amnestied.

From 2012 until today. The need to go back so far is due to the fact that it wants to protect the illegal consultation of 2014, 9-N, considered the precursor to 1-O. For that vote, which the courts had also prohibited, former president Artur Mas and former councilor Joaquim Homs were sentenced to disqualification and a fine for serious disobedience. With the amnesty, the crime of serious disobedience attributed to them will be deemed not to have been committed.

Judges or courts that have a matter that may be affected by the amnesty will have to act ex officio to archive the case or rule out that possibility. Also the rest of the parties in person or the Prosecutor’s Office may complain to the judge who applies the rule. Before making a decision, a report must be requested from all parties.

The processing will also be “preferential and urgent” and judicial decisions must be adopted within a maximum period of two months. What is resolved may be appealed and the amnesty will not be applied until the judicial decision is final. This means that, for example, for the cases under investigation in the National Court – CDR and Tsunami – there will be an appeal within the hearing itself and another before the Supreme Court.

No matter how much the text tries to make clear that it should apply to all the cases that its authors had in mind, if a judge or court has doubts about its constitutionality or its fit with EU rules, they can paralyze its application while consulting those organs. Until you have a response from the TC or the EU Court, you will not have to apply the amnesty because the procedure is suspended.

The proposal will not only be processed in Parliament urgently, but will come into force as soon as the regulations allow: the same day as its publication in the Official State Gazette (BOE). From that day on, it will be in the hands of the judges.