Pablo Llarena is in rebellion against the amnesty law. The Spanish Supreme Court judge has moved to dodge the Spanish law wiping out criminal cases relating to the Catalan process and, despite the fact that the law establishes that he must agree to "the immediate lifting of any interim measures", he is maintaining the arrest warrants for the politicians in exile Carles Puigdemont, Toni Comín and Lluís Puig. Llarena asserts that the conduct attributed to the president in exile and the two former ministers "falls completely within the two exceptions provided by the law on amnestying crimes of misuse of public funds, which apply when they have been committed with the purpose of obtaining a personal benefit of a patrimonial nature and when they affect the financial interests of the European Union"."They were the ones who conceived the plan to achieve the independence of Catalonia and approved a government agreement to cover certain costs from their departments. Consequently, the acts to make available the administration's patrimony were radically linked to a personal benefit and had a marked patrimonial character", he says. On the other hand, the judge considers that the case of exiled leader Marta Rovira does fall within the scope of the amnesty, and revokes her arrest warrant, but asks the parties their opinion on whether he should raise a question of unconstitutionality to the Constitutional Court on the possibility of granting an amnesty for disobedience.
In a ruling of 46 pages, Pablo Llarena maintains that Puigdemont, Comín and Puig, "taking advantage of their responsibilities" in the Catalan government, "endorsed the expenses to the autonomous community administration, without the initiative responding to the satisfaction of any public interest" so that they "did not have to attend to the inherent cost of their personal initiatives, once the Constitutional Court had declared the budgetary prevision for the referendum null and void". The judge argues that Puigdemont, Comín and Puig had a "personal interest" that "was not only illegal, but completely unrelated to their government responsibilities" and "decided to charge the cost of some personal initiatives or desires, which they themselves directed and deployed, to the public funds provided by taxpayers", thus "avoiding making payment for their desires or aspirations to the detriment of their personal fortune".
Llarena justifies that "taking public money to use it for personal purposes, or charging the costs of private goods or services and authorizing them after they are paid for by the administration, is an act of clear enrichment". And he goes on: "The term 'profit' must be understood to include any exploitation, yield or advantage, and in this case it must be considered that the profit or utility obtained was radically personal and specific to the perpetrators of the crime to whom it is attributed", it being "irrelevant that the initiatives were shared with other citizens". The Supreme Court judge reiterates what he expressed after the reform of the misuse of public funds law: "At that time we said that the act of diverting public funds to an illegal activity fully satisfied the term 'profit motive'".
In relation to the financial interests of the European Union, he argues that "the mere holding of the referendum that had been prohibited by the competent Spanish institutions necessarily and automatically affected the configuration of Spain and the territorial dimension of the European Union", which had a "direct reflection in the revenues committed by Spain to the Union's budget, mainly those linked to the levels of VAT [collected] and GDP [reached], and consequently, in the financial interests of the Union".
The arrest warrants against Puigdemont, Comín and Puig have been in force since January 12th, 2023. On that day, Pablo Llarena dropped the sedition charge against the Catalan president-in-exile and the two former ministers after the repeal of sedition took effect, but kept his prosecution for the crimes of disobedience and misuse of public funds. The judge withdrew the warrants and issued new summons and search warrants applicable for all three within the Spanish state.
Llarena avoids going to the Constitutional or European courts
In his justification, Pablo Llarena explains why he chooses not to present a question of unconstitutionality to the Spanish Constitutional Court or a preliminary question to the European Court of Justice over the validity of amnestying the misuse of public funds offences. "There is no need to evaluate the constitutionality of the amnesty law or its compatibility with Union law in cases where the law requires it not to be applied," he argues. Specifically, regarding the exclusion of the misuse of funds crimes that may affect the financial interests of the EU, he defends that European law "does not raise any objection" to the wording of the law. "Consultation would only be appropriate if there is doubt about the validity of the exclusionary law, which does not arise in the present case", he adds. And he concludes that, since the amnesty "prescribes in its article that the erasing of criminal responsibility is not applicable to the actions being investigated here", it would be "irrelevant if the law were to possibly exceed the constitutional limitations imposed on the legislator" and would "lead to the same judicial decision as if the amnesty law did not exist or if it were annulled as unconstitutional".
As well, Pablo Llarena takes advantage of his judgement to defend himself from the criticism he will receive. He maintains that "it cannot be claimed that the law will only be applied correctly when it reaches certain people, if the requirements that the rule incorporates are not met" and he points out that "nothing prevented the legislator from amnestying any misuse of public funds that met the requirements as to timing and character". "The law, as a provision of general applicability, contemplates cases and not people", he adds. Therefore, "it cannot be claimed that the decision [to apply] is adopted as if the legal suppositions were banal requirements that are only introduced to validate the law in an abstract way, but which must give way if it is found that they end up harming those who the law was supposed to benefit", he says.
Puigdemont warned that lifting the arrest warrant was "the only solution"
Twenty days ago, right after the amnesty was published in the Spain's official gazette and thus entered into force, Llarena asked the parties involved in the case if he should apply the amnesty to this case. In addition, he communicated to the police and security forces that the Spanish arrest warrants "remain valid and active" and reminded them that they should "proceed with their compliance as long as these decisions are not judicially modified or revoked".
The very next day, lawyer Gonzalo Boye confirmed that Puigdemont would return despite the arrest warrant. He stated that the president in exile "has never been concerned about an arrest" and argued that, if he returns to Spain, "the most normal thing would be that he would not be arrested". Everything that wasn't this, "would be an abnormality"."A judge must interpret the law and not rewrite it", he replied. Subsequently, Boye's response to Llarena was clear: "The only solution" in accordance with the law and respectful of the Constitution, the Treaties of the European Union and the amnesty law was "the lifting of the interim measures" weighing on the president-in-exile, specifically the warrant for arrest and admission to prison.
Prosecutors also, in the end, committed to lifting arrest warrants
The same thesis was defended by the office of the Spanish public prosecutors. Although not without difficulties. Their position stated that all the crimes of all those investigated, prosecuted or convicted must be amnestied because they fall within the scope of the law. Regarding the misuse of funds offences, they argued that "the acts directly aimed at financing or paying for the pro-independence consultations must be understood as included in the objective scope of the law's application and, therefore, must be amnestied" whenever they have taken place "without a purpose of enrichment”.
However, the road to get to get this positioning was not easy. Initially (a few minutes after the final vote in Congress), the four prosecutors who conducted the Supreme Court case against the pro-independence leaders stated to the prosecutor general that they were opposed to amnestying the misuse of funds offences. And thus, they lit the fuse of an open war among Spanish public prosecutors that ended up dividing the body in two. Consuelo Madrigal, Fidel Cadena, Javier Zaragoza and Jaime Moreno reiterated this days later and this forced the prosecutor general to order them to argue in favour of the application of the law, since their justification, with "insufficient arguments", was against "the will of the legislator and the literal tenor of the articles". But the four prosecutors refused and called the order "contrary to the laws and inappropriate". Finally, the prosecutors' board endorsed the position of Álvaro García Ortiz.