The amendment that has unblocked the amnesty law aims to limit the margin of interpretation of the judges and guarantee the application of the pardon measure to all those accused of the
process
.
To this end, the law trusts everything to European law and all references to the Spanish Penal Code for terrorism crimes have been eliminated, since the Spanish law contemplates conduct (such as serious crimes against property) that are outside the directive. European and may be relevant in investigations such as the
Tsunami Democràtic case
.
However, legal sources consider that some of the events attributed to the platform that organized the protests against the
procés
ruling may fit into the European directive and even constitute a serious violation of the European Convention on Human Rights, the other normative reference. of the text approved this Thursday.
If this interpretation prevails, the application of the grace measure will continue to face obstacles in the courts similar to those foreseen with the previous wording.
The new text is very focused on paving the way for the law in Europe, to whose legislation, conventions and jurisprudence it refers both in the preamble and in the articles.
This circumstance may be vital for the political narrative in the EU, but also for the position adopted by the community justice, to which some of the courts that have to apply the grace measure have already announced that they will resort.
The following are some keys to the new text:
What does the removal of the reference to the Penal Code in the crime of terrorism mean?
This change aims to avoid the application of the crime of terrorism in force in Spain, which was toughened with a reform agreed by the PP and the PSOE in 2015 to include acts that until then were not contemplated as such, such as any "serious crime" against property. , when they are committed with any of the following purposes: subverting the constitutional order, seriously disturbing the public peace, seriously destabilizing the functioning of an international organization or provoking a state of terror in the population or a part of it.
This regulation blurred, in some cases, the line between terrorism crimes and public order crimes, and has given rise to extensive jurisprudence of the Supreme Court on street terrorism on which the decision to open a case against Carles Puigdemont for this crime.
How does the application of the European terrorism directive instead of the Spanish Penal Code affect Puigdemont?
The new text aims to limit the room for maneuver of judges to stop the application of the amnesty to those prosecuted for terrorism.
In the case of the former Catalan president, investigated by the
Tsunami case
, the only resolution of the Supreme Court so far invokes article 573 of the Penal Code to determine that there is “a plurality of evidence” against the leader of Junts.
By referring the amnesty to the European directive, some of the conduct on which the Supreme Court based its accusation, such as serious crimes against property, are excluded from the crime of terrorism.
And, above all, the purposes established by the Penal Code as a requirement for terrorism to exist, some of which—subverting the constitutional order, altering public peace and provoking a state of terror in the population—are expressly cited in both the order of the Criminal Chamber as well as in various resolutions on the
Tsunami case
by the judge of the National Court Manuel García-Castellón.
However, sources from the high court maintain that the acts committed by this platform also fit into the crime of terrorism defined by the 2017 European directive. These sources cite, for example, the “attacks on life or physical integrity” (of who see indications in the injuries to police officers during protests against the
procés
ruling ), when they are committed for certain purposes, including seriously intimidating a population or seriously destabilizing the fundamental political, constitutional, economic or social structures of a country, objectives that the high court attributes to Tsunami.
One of the behaviors that the judges point out in this case, document falsification (hundreds of people occupied the El Prat Airport with false plane tickets), was precisely incorporated into the Penal Code following the transposition, in 2019, of the directive European, which was made on article 573 of the Penal Code.
Legal experts consulted agree that the amendment will have little practical effect when applied by the Spanish courts.
“It has problems from the perspective of the principle of legality.
Only national law creates criminal law.
And that is a dogma of faith for the Rule of Law,” warns Borja Mapelli, professor of Criminal Law at the University of Seville.
Manuel Cancio, professor at the Autonomous University, maintains that there was no terrorism in the amnesty, but believes that the amendment will not change the judges' interpretation.
“The directive is not a law, it is not designed to be applied directly, so the courts will question whether it should be applied instead of Spanish criminal law.”
How does the new text affect the rest of those investigated in the three cases in which the judges see signs of terrorism or treason?
Democratic Tsunami.
The National Court opened an investigation into the mobilizations organized by the Tsunami Democràtic platform in October 2019 to protest the sentence against the leaders of the
process,
some of which led to violent incidents.
García-Castellón has tried in multiple ways to prove the crime of terrorism of the Tsunami promoters, against the criteria of the Prosecutor's Office.
Until now it has been based on the Penal Code, but after the first amendments to the amnesty law, which left terrorist acts that violate articles 2 and 3 of the European Convention on Human Rights outside the pardon measure, the judge He maintained in an order that those involved in Tsunami could violate those precepts, so if he maintains that interpretation it could complicate the application of the norm.
García-Castellón counts in his investigation with two police officers who were injured during the protests in the center of Barcelona and who are carrying out the private prosecution.
These agents can be key when it comes to keeping the investigation alive and determining whether there was a serious attack against physical integrity, conduct classified in both the criminal code and the European directive.
However, the application of the amnesty to those accused of Tsunami by García-Castellón will foreseeably be influenced by what the Supreme Court decides on Puigdemont and Wagensberg.
The CDRs.
A group of 12 people, members of the Committees for the Defense of the Republic (CDR), went beyond purely protest actions after the 1-O referendum and, according to the investigation, prepared to take action.
The Prosecutor's Office requests 8 to 27 years in prison for possession and manufacture of explosives for this “radical cell” that sought to “achieve the independence of Catalonia using violence in its maximum expression.”
The truth is that these self-styled Tactical Response Teams did not ultimately carry out their actions, which, in theory, should facilitate their access to amnesty.
However, the European directive also considers terrorism "the threat of committing those intentional acts when it is established, on the basis of objective circumstances, that such threat occurred" with any of the terrorist purposes established by the standard.
Betrayal and the Russian plot.
The text excludes from the amnesty “the crimes of treason” and “against the peace or independence of the State”, but with an addition: provided that in the commission of these crimes “there has been both an effective and real threat and a use "effectiveness of force against the territorial integrity or political independence of Spain."
This is, once again, an extra shield for Puigdemont in the event that the Barcelona judge investigating the alleged Russian interference in the
process
decides to send a reasoned statement to the Supreme Court so that the former Catalan president can be investigated for that crime.
The head of the Investigative Court 1 of Barcelona, Joaquín Aguirre, maintains an open investigation (the
Voloh case
) into the meetings that took place in October 2017 between alleged Kremlin emissaries and the
former president
.
At the end of last January, the magistrate insisted, in an order, that maneuvers had been carried out to alter the territorial unity of Spain and seek alliances with Russia, which could constitute a crime of treason.
But even if the judge continues with this thesis, the new wording makes it very difficult for those investigated (and, eventually, Puigdemont) not to benefit from the amnesty, since there is no evidence that, beyond the existence of a couple of meetings , there has been a “real threat” or the “use of force.”
How does the change affect the crime of embezzlement?
This crime affects a good part of the causes linked to the organization of the 1-O referendum.
This includes the leaders of the
process
who were already convicted and later pardoned by the Government.
But also about twenty political officials from Esquerra and Junts who, one step below the councilors, held public responsibilities during the fall of 2017 and were key in the logistics and financing of the referendum.
The previous version of the amnesty law already included clear references to amnesty embezzlement as long as it was linked to the Catalan independence process, but the doubts raised by the Venice Commission on this point have led to the addition of some provisions that delimit this protection.
Embezzlement falls under the umbrella of the amnesty if it is aimed at financing acts linked to the
process
and “as long as there was no enrichment purpose.”
And the text adds that “the application of public funds to the intended purposes will not be considered enrichment” (the
process
) when there has not been “the purpose of obtaining a personal benefit of a patrimonial nature.”
That is to say, the intention is that although those investigated may have benefited in the abstract from the misuse of public funds, if there is no evidence that these actions have caused an increase in their assets (and there is none in any of the open cases ), are also covered.
This distinction, between cases that generate financial enrichment and those that do not, aims to circumvent European objections and limit the margin of interpretation of judges in Spain.
But the jurisprudence of the Supreme Court maintains that enrichment does not occur only when there is personal gain, but also when other types of benefits are generated, and on that the high court based its refusal to apply the
latest reform of the crime to the leaders of the
process
. of embezzlement, agreed last term between the PSOE and ERC and which reduced the penalty in cases in which there was no “profit motive”.
Changes in the preamble.
The PSOE and its partners have also agreed on modifications to the preamble of the norm, the expository part that precedes the articles and to which the Constitutional Court grants value to interpret the law.
The amendment incorporates an addition that makes it clear that the objective is to amnesty “all the people, without exception, who participated in the independence process.”
Furthermore, it reaffirms that the law has been “designed” in accordance with European law and delimits the roles of the legislative and judicial powers, a clarification that the opinion of the Venice Commission requested.
“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,” the text states.
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