The group of judges gathered by Sumar to propose an amnesty law already has their opinion. In this, they point out that the amnesty for the accused in the ‘procés’ is necessary to “establish the grounds for solution to the current political conflict between Catalonia and the State of Spain”and they consider it proven that it has a constitutional and legal place, according to a 40-page text presented this Tuesday in Barcelona in an event attended by the party leader and acting second vice president, Yolanda Diaz.
The amnesty is justified, among other reasons, by “the lack of proportionality in which certain judicial decisions are adopted” after “proceedings” and affects “those actions and omissions with the aim of purpose is to vindicate the right to self-determination in Catalonia”, as well as police officers convicted for their actions during the 1-O referendum, although there are exceptions. It has a temporal scope of crimes committed between January 1, 2013, if known -an that the ‘procés’ began, and the 17 August 2023, when the current Parliament was formed, that could decide on the amnesty.
The text places the amnesty in a “second phase of decriminalization” after the repeal of the crime of sedition and the pardon of the nine convicted in the ‘procés’ in 2021, to contribute to overcoming the “Catalan political conflict” by “rejecting the criminal prosecution of certain crimes.”
The beneficiaries Puigdemont, the CDR or accused of the Democratic Tsunami
It looks The former Catalan president, Carles Puigdemon, benefited from this amnesty.t, prosecuted for embezzlement and disobedience – crimes included in this proposal – as well as other members of his Government and about 50 officials from the Generalitat, but also those prosecuted for protests against the ‘procés ‘ sentence in 2019, where About 700 people were charged criminally.
According to the presented text, the pardon will also include those accused of the road closures of those days -250 people-, about 700 mayors investigated for supporting the referendum on 1st October 2017, the CDR convicted of crimes against public order or those involved in the Democratic Tsunami movement.
In general, amnesty will be granted for crimes classified in the Penal Code as crimes against Public Administration, against the Constitution, against public order, harm, threats, coercion, discovery and disclosure of secretsfinding the domicile of legal entities, damages, documentary falsifications and usurpation of public functions.
As for the police officers convicted for their actions in 1-O, those who used disproportionate force are excused, but actions that could be classified as crimes of torture and other crimes against moral integrity or illegal detentions.
This proposal was prepared by lawyers expert in criminal law Nicolás García Rivas, from the University of Castilla-La Mancha, Guillermo Portilla Contreras, from the University of Jaén, Rafael Rebollo Vargas, from the Autonomous University of Barcelona, Antoni Llabrés Fuster , from the University of the Balearic Islands and Javier Mira Benavent, from the University of Valencia.
Sumar defends the text: “In a democracy judges do not rule”
Díaz did not intervene in the event held at the Ateneu in Barcelona, he gave the spotlight to Jaume ASens, from En Comú in the Party Partiator of the Pro-Independence Parties. He clarified that the opinion of the judges “is not intended to be the final point of anything” or “a finished text”, but it is intended to be. “contributing to public debate”.
Asens defended the amnesty “This is not a bargaining chip to get an investiture” but it is a “political opportunity” to “overcome a period of confrontation, a period in which there are stone-pelting, imprisonment, unilateralism and failure of dialogue.”
He also claimed that “in a democracy the judges do not rule, the citizens rule through their representatives” and criticized that “Many times we see the judicial right wanting to be the protagonists and replaced the will of the citizens”.
PSOE and ERC, critical of the proposal; Together, please
The party has played down expectations about the decision in recent days, and They explained that this is not a proposal of the party, but of the judges where they are in charge, where they can do a part or all to protect it politically. Their partners in the PSOE government made it clear that this text represents Sumar’s position, not theirs.
They also criticized the action from the Government, believing that the action “This is not the best way to contribute to a negotiation” that it should be “smart.” On the other hand, The formation most in favor of Díaz’s party proposal is the Junts. The MEP of this formation – and beneficiary according to this amnesty text – Toni Comín, said that the opinion “is a good proposal, full of useful elements.” “Adding opens a path that the PSOE, sooner or later, will also end up following,” he defended.
They defended the constitutionality of the amnesty
For the judges who drafted this amnesty bill, there was no doubt about its constitutionality. They argue that the fact that it is not found in the 1978 Constitution does not mean that it is not unconstitutional. “No prohibitions can be derived from silence,” they state, and compare it to the German Constitution, where there is no mention of amnesty even but where the Federal Constitutional Court interprets that laws in this area can be approved by fulfilling certain requirements.
They consider that amnesty is not the same as a “general pardon”, which is expressly prohibited by the Spanish Magna Carta, because the first has a political nature and the second is judicial. They also defend that it does not violate the separation of powers because it prevents judgment and enforcement of what is judged, but “It seems to be forgotten that the same effects are produced by forgivenessthat it does not occur to anyone considering that it is unconstitutional”.
Other examples to justify its legality are to refer to its presence in the Criminal Procedure Law of 1882, which is still in force, or in a 2005 decree on the disciplinary regime of personnel serving in the Administration of Justice. They also mentioned some Supreme Court decisions reaffirming the validity of the 1977 amnesty law although pre-constitutional, a text that was also validated by Congress many times by rejecting its repeal, and other judgments of the Constitutional Court, such as in 1986, during the constitution, where the legality of amnesty recognized.
Finally, he cited the so-called tax amnesty of 2012, which was also judged by the Constitutional Court and declared unconstitutional despite other reasons: “The Court does not issue any scorn about the possibility that, using the proper mechanism, an amnesty was agreed upon.” The opinion emphasizes that amnesty should have limits: crimes against humanity and genocide, without prescription.
