A judicial door-slam on the amnesty law. The criminal chamber of Spain's Supreme Court, presided over by judge Manuel Marchena, has decided not to apply the amnesty to Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa, on whom he passed judgement for the 2017 Catalan pro-independence leaders' case and, therefore, they remain prohibited from holding public office until 2031, as the court has informed this Monday. The court maintains, in the first place, that the crime of misuse of public funds cannot be amnestied because in the referendum "there was personal enrichment of a patrimonial nature", a situation that is grounds for exclusion from coverage by the law that wipes out Catalan independence-related cases. And secondly, because - according to the Supreme Court - in the 2017 Catalan independence process "the financial interests of the European Union were potentially affected". The high court also proposes to the public prosecutors and the other parties in the case to consider the question of whether the judges should consult the Constitutional Court on the constitutionality of granting an amnesty for the crime of disobedience.
This was the decision of the chamber, made up of judges Manuel Marchena (spokesperson for the ruling), Andrés Martínez Arrieta, Juan Ramón Berdugo, Antonio del Moral and Andrés Palomo. However, the judge Ana Ferrer gave a dissenting vote because she considers that the misuse of funds in the Catalan independence leaders' case must be amnestied and she also asks that the European Court of Justice (ECJ) be consulted. The position of the Spanish high court is the same as that argued by the four prosecutors of the leaders' trial, discredited by the vote of the prosecutors' board and the decree of the Spanish prosecutor general, Álvaro García Ortiz.
Why exclude misuse of public funds?
The Supreme Court sets out that "what determines the exclusion of the crime of misuse of public funds from the scope of the amnesty law is the impossibility of understanding that those convicted of spending public funds - not their own - on expenses from the independence process did not obtain any personal benefit of a patrimonial nature". The court ruling adds: "In our opinion, a person who squanders public funds that have to be administered with loyalty and devotes them to financing the pro-independence process obtains the unquestionable personal benefit derived from not contributing money from their own personal wealth. A project, in short, that for the rest of the people who wanted to contribute to making it a reality and donated large or modest amounts, it did, of course, represent a disbursement that affected their heritage." The Supreme Court criticizes the Spanish government for not having heeded the recommendations of the Council of Europe that, in the crime of misuse of public funds, "criminal liability should be linked to the existence of real and quantified losses to the budget or assets of the state [as the court maintains occurred in the independence referendum case], not to the existence of a personal benefit of a patrimonial nature."
In this regard, the court concludes: "When the intention of enrichment - this being what the profit motive consists of - is associated in parallel with an act of theft or appropriation for the personal benefit of the author, that, of course, is not consistent with the jurisprudence of this court nor, of course, with the dogmatic treatment of the crime of misuse of public funds."
By contrast, judge Ana Ferrer states, in her dissenting vote, that the amnesty law clearly states that it includes the misuse of public funds that took place to organize the 2017 independence process, the offence for which she and her fellow Supreme Court judges convicted the independentist leaders. And, she adds: "To now assimilate the diversion of funds to the pursuit of an illicit political objective, with the aim of obtaining a private economically-assessable profit, leads to the incorporation [into the argument] of a nuance that is new, and at the same time dangerous, which twists the profiles of the profit motive, in a kind of methodological inversion that, having to start from the precepts of the law that it is our responsibility to apply, ends up redefining the description of the offence."
Catalonia's disconnection "for a few seconds" from Spain reaches the EU
In the resolution, the judges highlight the "glaring contrast between the reinforced protection that the European Union attributes to the crime of misuse of public funds and the leniency of the Spanish legislator which has not hesitated to forgive serious crimes, as well as the economic consequences derived from them." The resolution cites the proposed Directive of the European Parliament and Council on the fight against corruption, currently in process, which prohibits pardons or amnesties for the crime of misuse of funds and the court declares that in this context "it is particularly difficult to reconcile the effort of the European Union to eliminate margins of impunity for those who misuse funds with the will of the Spanish legislator to dispense exceptional and personalized treatment to crimes of particular gravity, for the simple fact of their having been committed by specific political leaders and in a certain historical period that includes from November 1st, 2011 to November 13th, 2023".
In addition to the exclusion of the amnesty due to "the existence of a personal benefit of a patrimonial nature" in the convicted Catalan politicians, the Supreme Court considers that "the financial interests of the European Union were potentially affected. And it maintains: "It is not difficult to venture that the rupture of the territorial integrity of Europe - this disconnection existed, even if it lasted only a few seconds - supposed a serious danger of affecting the financial interests referred to in Art. 2.e) of the Amnesty Law". And it adds that: "The consequences are more than obvious that for the European Union budget - formed from, among other contributions, a proportion of the GNP of each country, depending on its level of wealth, and a percentage of the VAT collected by each state - could come to represent the territorial decomposition of Spain and the consequent breakdown of the territorial and political boundaries of the Union."
In the resolution, the Spanish court rules out a consultation of the European Court of Justice (ECJ) because it maintains that the law is "correct" in not granting an amnesty for events that affect the financial interests of the EU, and adds: "Furthermore, it makes no sense to ask a preliminary question about the interpretation of a factic, non-legal matter, related to the inference we make about the effects that the creation of an independent state would have for the Union budget by breaking the current borders of the European Union."
Effects on other independence-related cases
This Supreme Court decision may affect other cases pending trial relating to the Catalan independence process, such as that of the Catalan Republican Left (ERC) politicians Josep Lluís Jové, Lluís Salvadó and Natàlia Garriga. The public prosecutors have, in fact, requested that the amnesty be applied to them, and the High Court of Catalonia (TSJC) must now decide whether to extinguish their criminal liability. Also pending is the case of the thirty ex-government officials and business people prosecuted in case conducted by Barcelona Court No.13.
Arrest warrants maintained
Also this Monday, the Supreme Court investigating judge, Pablo Llarena, also reported that he is not applying the amnesty and is maintaining the arrest warrants for the Catalan president-in-exile Carles Puigdemont and former ministers Toni Comín and Lluís Puig because he also asserts that the misuse of funds for the Catalan independence process cannot be amnestied. He does, however, approve the application of the amnesty to the general secretary of ERC, Marta Rovira, for the crime of disobedience, but also asks the parties to the case to present arguments on whether the Constitutional Court should be consulted over the law's application for this crime, just as the criminal chamber of the Supreme Court did for the pro-independence leaders convicted in the 2019 independence process trial.
Criticism of "high speed" of legislation
In the resolution, the criminal chamber of the Supreme Court criticizes "the high speed" with which the amnesty law, agreed by the Socialists (PSOE) with the pro-independence parties Junts and ERC, was passed. And it states: "The haste with which this legal text has seen the light of day, reflected among other aspects in the visible distance between the initial wording and the one that was finally published, contributes decisively to making the interpretive work difficult", giving the example of the report of the Venice Commission on the legal proposal.
Thus, the Supreme Court maintains the bans on holding public office to which four of those tried in the 2019 pro-independence leaders' trial were sentenced for the crime of misuse of public funds: in the case of Oriol Junqueras, a ban until July 17th, 2031; for Raül Romeva and Jordi Turull, until July 5th, 2030, and for Dolors Bassam until October 10th, 2031.