The Supreme Court has taken the step of having the Constitutional Court investigate whether the amnesty It is legal or not. The Criminal Chamber, composed of five judges, has raised a question of unconstitutionality in which they affirm that the forgiveness of crimes related to the independence movement violates equality between Spaniards. A car that also described as a “coup d'état”on a dozen occasions about the 2017 sovereignty challenge. The judges, who had to justify the sentences for sedition, stated that the referendum “a decoy”, they now start talking about a “secessionist coup” while the aim is to bring the norm to the Constitutional Court, relying verbatim on arguments which the Public Prosecution Service requested in vain a sentence for rebellion.
The issue of unconstitutionality has been signed by five judges of the Criminal Chamber of the Supreme Court. Three of them –Manuel MarchenaAntonio del Moral and Andrés Martínez Arrieta – also signed the verdict in 2019. Carmen Lamela, the first by sending Oriol Junqueras to prison in 2017and Speaker Leopoldo Puente have completed the court charged with putting in writing the charges against the law approved in Congress last may.
The bulk of the writing focuses on the claim that the amnesty law goes beyond two rights enshrined in the Constitution: equality and legal certainty. Equality because, the Supreme Court affirms, independence supporters receive “clearly privileged treatment” compared to someone who, they say, throws cobblestones at the police but is protesting an expulsion, not the trial. Legal certainty, they add, because it paves the way for another government at another political level to forgive more crimes until the criminal law is applied only to the “fools and the poor.”
From there, the Supreme Court uses an adjective it has never used before to refer to the trial. Something the prosecution used to promote its failed rebellion charge, but which the 2019 verdict did not address: everything was a “secessionist coup”. The Supreme Court, which in its ruling sentenced Junqueras and the rest of the political leaders to prison terms of up to 13 years for sedition, embezzlement and disobedience, is now approaching the Public Prosecutor's Office from which it distanced itself at the time.
The question of unconstitutionality explains what is meant by a coup d'état. He does not use the term in a “strictly political sense,” he explains, but rather based on Hans Kelsen: “The change of the constitution without following its reform procedure.” But this is not an original argument of the Supreme Court in the case of the trial. The first to make the same quote from the Austrian philosopher It was Javier Zaragoza in the trial itself. He is one of the prosecutors who has vigorously opposed the application of the amnesty.
In July 2019, the Public Prosecutor’s Office definitively submitted its request for prison sentences for rebellion for the leaders of the struggle for sovereignty. And Zaragoza, the most forceful of the four prosecutors in the case, presented part of the Public Prosecutor’s final report. “What happened in Catalonia is what in Kelsen’s terminology is called a coup d’état, it was a coup d’état.” he said without hesitation.
Their arguments were unsuccessful in a ruling that devoted part of the pages to the defense that the defendants should be convicted of sedition, but not of rebellion. It also stressed the tenacity of the secessionist strategy, but distanced itself from its capacity and objectives of a coup d'état at the time. The violence used, the judges said, did not allow us to speak of rebellion. And the general strength of the entire independence strategy – including the illegal referendum, the mobilizations, the processing of disengagement laws and the unilateral declaration of independence – was not sufficient to constitute a real threat.
Where the Supreme Court now agrees with the Public Prosecutor's Office on the issue of a “coup d'état”, it spoke of “the absolute inadequacy of the totality of acts planned and executed to effectively impose effective territorial independence and the abrogation of the Spanish Constitution on Catalan territory.” Their proven facts even stated that the true objective was not to separate Catalonia from the rest of Spain, but to force the government of Mariano Rajoy to sit down and negotiate a real referendum.
“They were aware that what was offered to Catalan citizens as the legitimate exercise of the right to decide was nothing more than a bait for a mobilization that would never lead to the creation of a sovereign state,” the Supreme Court said in 2019. where the desire of the convicted Catalan leaders was to “put pressure on the national government to negotiate a popular consultation.”
The amnesty, before the Constitutional Court
In the 49 pages in which the amnesty is presented to the Constitutional Court, the Supreme Court sharpens its discourse on the process, admitting in some respects that it was a “failed coup d’état,” which was not inadequate as previously believed. But where the government did not see sufficient strength to achieve its objectives, this question of unconstitutionality now speaks of how they tried “to change the democratic constitutional order through facts.” Everything was the work, he adds, of “a coup group” that tried “to change the constitutional order to the point of declaring the secession of part of the national territory.”
The law and its fundamental article are already in the hands of the Constitutional Court, which has no specific deadline to find a solution. The Public Prosecutor’s Office has formally supported the presentation of the question of unconstitutionality for the moment, although that will happen later when the Public Prosecutor’s Office presents a full report with its opinion on the law and its first article. A report that the Attorney General himself will have to sign.
The question of unconstitutionality attacks the first article of the amnesty law, which is crucial for its entire development: it specifies the crimes for which amnesty is possible. A question that has been pending for two months in courts throughout the country, which will now have to decide whether or not to continue the amnesty while the Guarantee Court makes a decision. According to the calculations of the Public Prosecutor’s Office, there are 82 criminal proceedings in progress throughout the country, with 486 people being prosecuted, mainly in Catalan courts and tribunals.
The Supreme Court began the application of the amnesty with three ongoing investigations: the main case already condemned, the pending accusation of Carles Puigdemont in that branch and, finally, the accusation of terrorism against the former president by Tsunami Democràtic. These were joined in recent weeks by the so-called “Russian plot” of the trial. recently sent to the Supreme Court by Judge Aguirre.The Cause of the Democratic Tsunami was archived after the National Court determined that an illegal extension by Manuel García Castellón prevented the case from progressing.
In the remaining cases, the Supreme Court has determined that crimes related to street brawls are amnestied, although at the same time they question the content of the law before the Constitutional Court. They have also determined that the crime of embezzlement is attributed, among other things, to: Puigdemont himself is not subject to amnestyThe process – they say now, after not even mentioning it in the sentence – not only endangered the Catalan economy, but also the economic interests of the European Union.