Judges may paralyze the application on a case-by-case basis with preliminary questions
The judges and magistrates are called to execute the proposed amnesty law that Congress has approved – and which still has to go through the Senate – but in case of doubts about its application they may consult the Constitutional Court (TC) or to the Court of Justice of the EU (CJEU), thereby stopping the immediate application of forgiveness to the cases at hand.
At the national level, they may raise questions of unconstitutionality in the TC if they believe that the amnesty has no place in the Magna Carta. This movement will cause the specific case to be paralyzed until said court resolves.
They will also be able to formulate a preliminary ruling before the CJEU if they notice a clash with community rules, which will leave the case where it is raised fallow until Luxembourg responds.
This temporary suspension of the application of the amnesty to cases where the togados have doubts about their legal fit will vary depending on which court they ask and for what reasons.
The TC will give priority to the appeals and issues that are presented against the amnesty, but does not anticipate that it will be able to resolve within six months, according to legal sources consulted by Europa Press.
To this we must add that the TC expects an avalanche of matters related to the law, both in the form of unconstitutionality and amparo appeals – none of which have suspensive effects – and questions of unconstitutionality. The deadlines handled by the CJEU are even longer, since the average resolution of the preliminary ruling questions that arrive is a year and a half.
In principle, the procedures before the TC and the CJEU can take place in parallel, so it is foreseeable that the Constitutional Court will sentence the amnesty before Europe.
However, there is a third variable. If the questions raised before the TC are for reasons that also affect EU Law, then the TC will have to wait for the CJEU to rule, which will delay the reactivation of cases where this confluence occurs.
THE INDEPENDENTIST REACTION
The suspensive effects of the preliminary rulings unleashed a political storm a few weeks ago, when the Government wanted to leave it black on white through a procedural reform introduced in one of the anti-crisis decrees, despite the fact that it was already a consolidated practice. Junts then demanded the withdrawal of this modification to guarantee that the decrees were validated, something to which the Executive agreed.
However, the debate on the preliminary questions was not settled. During the process in the Justice Commission of Congress, Junts managed to get the PSOE to accept an amendment called to mitigate the suspensive effects.
The amended text establishes that the judicial bodies “immediately lift the restrictive measures of rights that have been adopted, even in those cases in which a possible suspension of the judicial procedure occurs.”
These “restrictive measures of rights” could cover both the national search, capture and imprisonment order against the former Catalan president Carles Puigdemont and the disqualification sentence in force until 2031 against his former ‘number two’. Oriol Junqueras.
However, faced with this safeguard or any other “coercive measure”, judges and magistrates may also go to the TC and the CJEU.
Likewise, the amendment indicates that the preliminary rulings will not affect “the validity or effectiveness of the laws”, another precaution that the experts questioned call unnecessary since the questions to the TC and the CJEU do not suspend the general application of the rules.
However, on March 6, Junts presented an amendment to the bill derived from the Government decree that was validated in January with measures to expedite Justice to propose that article 43 bis of the Civil Procedure Law be deleted, which contemplates the suspensive effect of the European preliminary ruling.
OF THE JUDGMENT OF THE ‘TRIAL’ IN DEMOCRATIC TSUNAMI
Although any judge, magistrate or court that has cases affected by the amnesty may follow these paths, the main fronts are expected in the Supreme Court (TS) and the National Court (AN).
In the TS, it will be up to its Criminal Chamber to apply the amnesty to Puigdemont and the other 1-O fugitives prosecuted for crimes of disobedience and/or embezzlement who are waiting for the instructor of the ‘procés’, Judge Pablo Llarena, take their investigative statement to advance the criminal procedure. As for those already convicted by 1-O, jurisdiction corresponds to the court that tried and sentenced them.
From the Supreme Court they will also be able to consult the TC or the CJEU about the application of the amnesty in the criminal case that was opened last February against Puigdemont for terrorism within the framework of ‘Democratic Tsunami’.
For its part, the National Court may raise a question of unconstitutionality or a preliminary ruling on the branch of that case in the investigation of the alleged planning by the independence platform of the 2019 riots after the ‘procés’ ruling. In this procedure there are a dozen defendants, including the general secretary of ERC, Marta Rovira, for alleged terrorism.
On the sidelines, the Criminal Chamber of the AN may go to the CJEU in the case of the 12 members of the Committees for the Defense of the Republic (CDR) prosecuted for terrorism for their alleged plans to achieve Catalan independence through violent means, since that the case is awaiting trial.
The Court of Accounts (TCu), although there are no precedents, may also launch preliminary questions in the case against 35 former senior officials of the Government – including Puigdemont, Junqueras and Mas – for the alleged diversion of funds for 1-O expenses and the external action of the ‘procés’. The trial took place in November and is awaiting a ruling.
EMBERSPAGE AND TERRORISM
Legal sources predict that one of the points of collision of the amnesty with EU Law would be embezzlement as it is a central figure in the fight against corruption in Brussels.
In fact, last May the European Commission proposed in a proposal for a directive to harmonize penalties so that embezzlement has a maximum sentence of at least 5 years in all member states, something that if successful would force Spain to reform this crime again.
Furthermore, it is worth remembering that after the reform that modified embezzlement, the Supreme Court explained the concept of profit motive and insisted that “it can never be understood” that the actions of those convicted of the ‘procés’ were “absent” of said motive.
On the sidelines, the sources consulted point out that there could also be a clash due to terrorism. It should be remembered that, in its attempt to protect those accused in the context of the riots allegedly organized by the ‘Tsunami Democràtic’ platform, the amnesty law removes the reference to the Spanish Penal Code and is left exclusively with the version of this crime collected in the European directive, where the crime threshold is higher.
The mentioned sources, however, remember that the directive is a minimum text and that in case of doubts the judges may consult the CJEU.
Sources from the former president’s defense consulted by Europa Press assume that the judges will have “legitimate” doubts about the application of the law, but maintain that this should not affect the lifting of the precautionary measures. Even so, they recognize that there are no guarantees.
Next, they warn that if the Supreme Court raises a preliminary ruling without first lifting the national arrest warrant against Puigdemont, they will appeal to the CJEU to order the lifting of said precautionary measure.
