A 127-page report. This is what the prosecutors of the Spanish Supreme Court have presented to the chief state prosecutor, Álvaro García-Ortiz, as the argumental basis for sending the newly-approved amnesty law to the European Court of Justice (ECJ), given that "it raises several problems of contradiction with European Union law", in the meeting that they held this Thursday, the same day as the Congress of Deputies approved the legislation that will extinguish all criminal, administrative and accounting responsibility for having promoted the independence of Catalonia. The four prosecutors who conducted the case against the pro-independence leaders of the October 1st, 2017 referendum maintain that the amnesty law "does not respect the separation of powers and does not fit into the constitution", and also it "affects the EU's financial interests in the general framework of the fight against corruption". Specifically, they claim that the misuse of public funds committed with regard to the October 1st referendum cannot be amnestied because it had "a patrimonial benefit" for the politicians. And as well as the misuse of funds, they add the "lifting of the interim measures" it dictates - that is to say, the cancelling of the arrest warrants for exiled president Carles Puigdemont and former ministers Toni Comín and Lluís Puig - cannot be applied. For the prosecutors "the mandatory character of lifting the interim measures, the duty to prosecute within a two-month period, and the non-suspensive nature of the appeals, do not comply [with] EU law".
The report is signed by the prosecutors Consuelo Madrigal, Fidel Cadena, Javier Zaragoza and Jaime Moreno and, if their superior approves it, it will be presented to the criminal division of the Supreme Court, headed by judge Manuel Marchena, who will have to decide how to apply the law to the political leaders and whether to submit a preliminary question to the European Justice and the Spanish Constitutional Court, as proposed by the prosecutors, who maintain that if these actions are taken, there should be a halt to the two cases open: that for those accused over the independence process case, and for those already convicted and still banned from office. ElNacional.cat has accessed this report and presents the main lines of argument by this group of prosecutors, who are considered the most belligerent towards Catalan independence of their profession.
An "arbitrary" law
At the start of their exposition, the prosecutors show their indignation at a law that amends everything they have defended and all that the Supreme Court has done up till now. "There are no precedents since 1977 in relation to such a broad general amnesty covering criminal offences. In addition, the measure has been preceded by the pardoning of those who were tried. The proposed amnesty does not obey an ideal of justice but rather a basis of confessed circumstantial need to bring about the formation of a new government", declare the prosecutors. And they add: "It can be affirmed, without a doubt, that what we have before us is a completely arbitrary law both in its conception and processing, as in its purpose. And they state that "there is no political context that justifies this law and nor does it have a broad political consensus as recommended by the Venice Commission".
The representatives of the public prosecution service denounce that "this is a law designed by the beneficiaries of the amnesty themselves (it actually appears to be a self-amnesty), which has been modified and adapted in its wording based on the judicial developments that have been taking place" in the cases that are open, apart from the October 1st leaders case. On the other hand, for the politicians, the National Audience judge Manuel García-Castellón has employed a lawfare approach to attempt to derail the law by reactivating the Democratic Tsunami case and its accusations, every time that there was a political agreement.
And they conclude that "the jurisdictional action comprising of the application of criminal laws to the carrying out of those criminal acts was neither unjust, nor was it arbitrary, and was produced with the utmost respect for legality and rights and guarantees for those facing justice", and therefore, they maintain that the amnesty "does not comply with the principles assigned to it by constitutional doctrine".
Only disobedience and disorder
Supreme Court prosecutors state that the amnesty law "is only applicable" to conduct that fits within the criminal definitions of disobedience and public disorder. Prosecuted for the crime of disobedience are Puigdemont, Comín, ex-minister Clara Ponsatí and the general secretary of ERC, Marta Rovira. As well as those convicted of sedition (a crime later repealed) - Oriol Junqueras, Jordi Turull, Raül Romeva and Dolors Bassa. As for the public disorder, this applies to the two social movement leaders, Jordi Sànchez and Jordi Cuixart.
On the other hand, the prosecutors are opposed to applying the amnesty to the crime of misuse of public funds to Puigdemont, Comín, Puig and the already-convicted Junqueras, Turull, Romeva and Bassa, who were pardoned from prison, but not from their ban on holding public office, that at present applies until 2030.
There is "patrimonial and political benefit"
In the more than one hundred pages of the report, the prosecutors argue that the crime of misuse of public funds that was committed through the organization of the 2017 referendum implied "political and patrimonial" enrichment of the defendants, and that is why it cannot be amnestied. The text notes the opposition of the public prosecutors to the reform of the crime of misuse of funds in Spanish Law LO 14/2022, promoted by the PSOE and ERC, to reduce the accusations and convictions of former political officials of Junts and ERC, as well as officials, such as Josep Maria Jové, Lluís Salvadó and Natàlia Garriga, pending trial at the Catalan High Court, and the thirty former officials being tried at the Barcelona Court Number 13.
They detail that in the reform of the crime, the Spanish verb "sustraer" ("to take" or "to remove") was changed to the current one of "apropiar" ("to appropriate"). And that the Supreme Court has affirmed, in its jurisprudence, that "'taking something must be interpreted as appropriation without intention to reimburse, separating assets from a purpose or deviating them away from one" and that "appropriating" in reality, is equivalent to "separating, extracting, carrying away, withdrawing or stripping the flows or effects from their purpose or diverting them from the needs of the service, in order to make them one's own".
They state that in the case of the referendum of October 1st, 2017 "the patrimonial benefit existed, because they appropriated public funds with the intention of profiting and, having taken them from their public and legal function, they assumed powers of ownership over them, allocating them to the payment for the items which they themselves had contracted in illegal public contracts to execute the activities that made up the independence process as a whole". And they conclude that the Catalan politicians "completely breached the duty of fidelity and probity in the management of the entrusted public funds, dedicating them in accordance with their political, personal and patrimonial benefit to solving the obligations illegally contracted to those who were awarded openly unconstitutional public contracts".
For all this, the Supreme Court prosecutors ask the Spanish high court to submit preliminary questions to the European Court of Justice to clarify the legality of the amnesty law as a whole, and specifically, the case of the crime of misuse of public funds.
In the main photo, the prosecutor Javier Zaragoza, in the Catalan pro-independence leaders trial, in 2019. / Photo: Efe