The amendment to the amnesty law that the PSOE and the independentists have agreed on for terrorism crimes brings together, at least on paper, the interests that each of them had defended in recent weeks and for which, until now, they have not They had found a formula that would satisfy everyone.
The PSOE has insisted that especially serious crimes, such as terrorism, should be left out of the pardon measure (although it accepted, from the beginning, that they would only be excluded when there was a final sentence).
Meanwhile, the independentistas demanded that the amnesty benefit those implicated in terrorism by the CDR or the Tsunami Democràtic platform, among them, the former Catalan president Carles Puigdemont and the general secretary of the ERC, Marta Rovira.
Junts spokesperson in Congress, Miriam Nogueras, this Tuesday upon leaving the Justice Commission.Eduardo Parra (Europa Press)
The agreed text meets the requirements of both parties by leaving the most serious forms of terrorism out of the amnesty, which provides the PSOE with the arguments to defend this change, while continuing to guarantee the measure of grace for the members of the CDR - the Committees of Defense of the Republic, emerged to defend secession after the illegal 1-O referendum—and of Tsunami—the platform that promoted the protests after the secession of the
process—
, since the terrorism crimes attributed to them are supposedly included in the bill.
What crimes can be amnestied and which cannot?
The proposal of the PSOE and its partners implies amnesty for all events linked to the consultation held in Catalonia on November 9, 2014 and the referendum of October 1, 2017 committed between January 1, 2012 and November 13, 2023. Also, all those that have been carried out “in the context of the so-called Catalan independence process”, even if they are not related to those consultations.
Acts of terrorism that have caused, “manifestly and with direct intention,” deaths, torture or degrading treatment are excluded.
Also excluded are intentional acts against people that have caused death, abortion or injuries to the fetus, the loss or uselessness of an organ or member, the loss or uselessness of a sense, impotence, sterility or a serious deformity.
Furthermore, crimes of torture or inhuman or degrading treatment are excluded in accordance with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
How does the amendment agreed between the PSOE and the independentists affect terrorism crimes?
The bill registered in November by the PSOE implied amnesty for all terrorist crimes, except when there was a final sentence.
The amendment means amnesty all cases of terrorism, even when there is a final sentence, except those that, "manifestly and with direct intention", have caused serious violations of human rights (death, torture or degrading treatment).
Why does this shield Puigdemont and Rovira?
The previous wording already guaranteed, in principle, the measure of grace for all those investigated in CDR and Tsunami, since these cases are very far from having a final sentence.
But there was a risk that the Constitutional Court or European justice would question this difference in treatment between the cases on which there is a ruling and those on which there is not.
The new text attempts to avoid this problem by not defining the scope of the amnesty by the procedural stage of the case, but by the acts committed.
By limiting the exclusion of the amnesty to terrorist acts that cause death or torture in a manifest and intentional manner, the aim is also to guarantee that the pardon measure benefits Puigdemont, Rovira and the rest of those prosecuted for terrorism.
In the Democratic Tsunami case, in which protests against the
procés ruling are being investigated,
Judge Manuel García-Castellón does link mobilizations with the death of a French citizen from a heart attack at the Barcelona airport.
However, in the event that the courts confirmed this relationship – rejected by judicial reports, the Mossos and the emergency services – it would be difficult to attribute intentionality to them.
In the case of the CDR, the accusations contemplate for several of those involved the crimes of belonging to a terrorist organization, punishable by eight years in prison;
possession, deposit, manufacture of explosive substances or devices, punishable by up to 11 years;
and that of havoc, of an attempted terrorist nature, with eight years in prison.
When will Puigdemont be able to return to Spain without risking arrest?
The former Catalan president will be able, in principle, to travel to Spain as soon as the amnesty comes into force, and that does not change with the amendment registered this Tuesday.
The PSOE and the independentistas have made adjustments to the law to ensure that the precautionary measures will be lifted as soon as the law is approved, despite the fact that the criminal procedure is suspended "for any reason."
With this formula, they try to guarantee that the precautionary measures can be lifted immediately even if the judges who have to apply them raise objections before the Court of Justice of the EU (the bill only included this provision for cases in which the judges go to the Constitutional Court).
The text does not specify that this change affects arrest warrants, such as the one Puigdemont has in force in Spain, but legal sources indicate that these orders are usually considered a precautionary measure, although it will depend on the judge's interpretation.
However, if the judges go to the Constitutional Court or the European justice system, the criminal proceedings will be suspended, which, in practice, according to these sources, would prevent the Supreme Court from arresting the former Catalan president if he enters Spain.
Until when will Oriol Junqueras remain disqualified?
The disqualification sentence that weighs on the former vice president of the Generalitat will expire when the law is approved, but neither the bill nor the amendments specify whether this effect is maintained in the event that questions of unconstitutionality are presented or before the CJEU.
The legal sources consulted are inclined to interpret that if the Supreme Court takes this step, the disqualification will remain in force until there is a response.
Junqueras, however, could request precautionary measures so that the application of the amnesty is not suspended while the Constitutional Court or Europe resolve the issue raised by the Supreme Court.
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