The ‘total amnesty’ for Spanish MEP Carles Puigdemont may not be as solid as its supporters had hoped.
The proposed law would grant immunity from punishment to Puigdemont and other Catalan separatists accused of carrying out the 2017 illegal independence referendum, as well as a wide range of related or possible crimes—from looting and rioting to colluding with Russia to break apart the Spanish nation.
Consulted by the Spanish newspaper El Debate, several legal experts—including retired judges—outlined several scenarios in which the constitutionality of the bill could be questioned.
Many of the alleged crimes targeted by the proposed law are under investigation or form the basis of ongoing prosecution. Puigdemont himself is the subject of two investigations: one involving charges of terrorism following the 2019 riots at Barcelona airport that investigators believe he masterminded, and another for charges of high treason after turning to Russia for financial support for the Catalan separatist cause.
Both cases involve not only Spain’s domestic law but also the laws of the European Union. This is not the first time the separatist issue has reached Brussels. There is already a European order out for Puigedemont’s arrest and return to Spain, though Belgian authorities have been reluctant to act on it.
Magistrate Jaime Lozano told El Debate that the bill contains two instructions to judges in applying the amnesty law. “On the one hand, it orders them to open an incident [a ‘mini-trial’], with a hearing of the parties, to decide if the amnesty is applicable to the case. If it is, the judge applies it,” Lozano explained.
“However,” he added, “even though the Supreme Court, or any judge with an open case against the separatists, can raise a question of constitutionality or a European preliminary ruling on the first scenario,” the proposed legislation “orders the judge that, even if [that question is] raised, they must lift any precautionary or search measures issued, including the European arrest warrant.”
Lozano said that under both the Spanish constitution and EU law, judges will be able to question both the application of amnesty and the lifting of precautionary measures. Should a judge send his doubts to either court, the application of the law would be suspended.
“Regardless of what each judge does in each case … there are real and orthodox procedural possibilities” to stop an automatic amnesty, Lozano said. “European law is not so foolish that it can be circumvented when it pleases any national legislator,” he concluded.
Mar Cabrejas, a member of the Judicial General Council, the body that helps manage the Spanish court system and reviews bills for constitutionality, warns that it is not within the legislature’s power to suspend measures taken by the courts such as order of extradition.
Eligio Hernández, attorney general under former socialist prime minister José Luis Rodríguez Zapatero, told El Debate, “The Treaty on European Union stipulates that the submission of a preliminary ruling by a Spanish judge before the ECJ [European Court of Justice] will suspend the application of the amnesty, as well as any other questioned rule.”
Hernandez said the amnesty law, “despite the enthusiasm of its proponents,” has problems when it comes to its application to terrorism charges, both because
it is not feasible for a government to unilaterally ‘lower the level of effective and efficient prosecution of terrorism in the European Union,’ but also because the very concept of terrorism responds to an ‘excessively broad’ formula that does not allow for a specific interpretation concerning specific individuals and specific acts. This makes its individualization more complex and raises severe ‘applicability doubts.’
MEP Carles Puigdemont has been living in Belgium since 2017 when he fled Spain to avoid arrest. Though he was allowed to run in the last EU election—winning his current seat in the European parliament—he has since been stripped of his immunity as an MEP. He intends to remain in public office—either as an MEP or possibly running to regain his position as the Catalan regional president since snap elections were just called for the regional government and he hopes to take advantage of the pending amnesty law.
Legal experts told El Debate that they believe Puigdemont cannot return to the European Parliament again without complying with the constitutional compliance process before the Central Electoral Board, which was skipped over in the last election.
What is clear is that the battle over the amnesty is far from over and will instead drag down Spanish politics for at least as long as the current government remains in power.
