Pardons for jailed Catalan independence leaders will be fast, limited and reversible

The Spanish Cabinet is expected to approve the measure at the end of June or early July. According to government sources, the separatists will return to jail if they break the law and will remain barred from public office

Jailed separatist leader Jordi Cuixart (l) with the Spanish minister of territorial policy, Miquel Iceta.
Jailed separatist leader Jordi Cuixart (l) with the Spanish minister of territorial policy, Miquel Iceta.Pau Venteo - Europa Press (Europa Press)
To the Catalans

Spanish Prime Minister Pedro Sánchez is preparing to take the most delicate decision of his mandate so far, by issuing pardons for the Catalan independence leaders who were jailed for their role in the 2017 secessionist drive in the region. In contrary to what was expected, the pardons will not take place in August, a time when many Spaniards will be on vacation and not paying so much attention to the news, but in the clear light of day. The Cabinet meeting that will take the decision, one that will have a clear political cost for the government and will mark a defining moment in its current term, will take place at the end of June or early July, according to a number of sources from the government.

Nine of the defendants in the Supreme Court trial over the independence drive were found guilty of sedition, and were sentenced to between nine and 13 years in prison. These politicians and civic association leaders have now been behind bars for three-and-a-half years, including their time in pre-trial custody. The group includes Catalan Republican Left (ERC) party leader Oriol Junqueras, who was deputy premier when Catalonia held the outlawed independence referendum on October 1, 2017. That was followed by an independence declaration passed by separatist parties inside the regional parliament.

The ERC has just formed a new government in coalition with the more hardline Together for Catalonia (Junts), and the former party is also needed by the central government – a coalition of the Socialist Party (PSOE) and leftist Unidas Podemos – in the Congress of Deputies if it is to pass legislation. As well as considering the pardons for the jailed separatist leaders, Prime Minister Sánchez has also committed to restarting talks between the central administration and the regional government over the future of Catalonia.

Jailed separatist leaders (l-r) Oriol Junqueras, Jordi Cuixart, Jordi Sanchez, Quim Forn, Carme Forcadell, Dolors Bassa, Raul Romeva, Jordi Turull and Josep Rull in a protest to call for pardons in February.
Jailed separatist leaders (l-r) Oriol Junqueras, Jordi Cuixart, Jordi Sanchez, Quim Forn, Carme Forcadell, Dolors Bassa, Raul Romeva, Jordi Turull and Josep Rull in a protest to call for pardons in February.MASSIMILIANO MINOCRI (EL PAÍS)

The text covering the pardons will be approved once the Justice Ministry, the deputy prime minister’s office and the closest members of Sánchez’s team manage to ensure that it is legally watertight and will avoid being struck down thanks to an appeal filed by far-right Vox, which is fiercely opposed to Catalan independence as well as the release of figures it describes as golpistas – i.e. coup-plotters. Such a setback would be devastating for the central government given that the aim of this controversial move is to heal the wounds of the independence drive.

The prime minister’s team is searching for all kinds of precedent and arguments focused on justice, fairness and above all the concept of “public interest” – i.e. that the pardons are positive for the general interest of Spain because they could help to resolve the conflict in Catalonia.

The government is seeking at all costs to avoid a collision course with the courts. The Supreme Court last week issued a report rejecting any kind of pardon for the jailed separatists, something that was not well received by the central government. The latter believes that the court has waded into politics by issuing statements that go further than the judicial realm, in particular its suggestion that the government would be issuing a “self-pardon” because the votes of ERC are necessary for the central administration to get things done in Congress. But the executive has not publicly transmitted this unease. Its arguments will avoid questioning the sentence of the Supreme Court trial itself, which Sánchez publicly applauded at the time.

If the jailed leaders reoffend, in a period that could be up to three years, the pardon will be annulled

What’s more, according to government sources, the pardons will have a number of limitations that will mean they are less likely to be successfully appealed in the courts. Firstly, they will have conditions and will be reversible – this means that if the jailed leaders reoffend, in a period that could be up to three years, the pardon would be annulled. This is a regular condition of such a pardon, but in this case, it will carry with it a political and legal significance: the political opposition and the Supreme Court itself has been arguing that the independence leaders cannot be pardoned because not only have they not expressed remorse – something that is not a legal requisite for such a pardon – but they have also openly stated that they would do it all over again.

The central government has played down these statements of defiance, however, given that they have little political relevance in Catalonia right now. The new premier in the region, Pere Aragonès (ERC), has just taken possession of his role committing to a referendum on the future of Catalonia that has been agreed with the state, thus distancing his administration from the unilateral approach of 2017 and reactivating the talks between the central government and his regional administration.

What’s more, the pardons will be only partial. The most likely outcome is that there will be no change to the part of the sentence that barred the leaders from political office, and instead, just some of the years on their sentences will be removed – these will differ according to each case, but will be sufficient to see them released from jail.

As for the political fallout from the imminent pardons, the opposition believes it has found a way to weaken the coalition government to the point of ending its term early, given that its electorate is divided on the issue. The PSOE itself – a reflection of the views on this issue across Spain – is split among party chiefs who clearly support the decision, such as the Valencian premier Ximo Puig, and those who reject it, such as his opposite number in Castilla-La Mancha Emiliano García-Page.

Some in the government are comparing the attacks that Sánchez is currently suffering over the issue with the attitude toward former PSOE prime minister José Luis Rodríguez Zapatero during negotiations with the now-disbanded Basque terrorist group ETA. “Zapatero opened the path to bring about the end of ETA,” a member of the executive told EL PAÍS. “Now he is applauded. But at the time they hammered him. The pardons will be a decision that will be understood a lot better within a few months and even more so in a few years. These are things that a prime minister has to do, whatever the cost.”

The government, meanwhile, is arguing that they were faced with the Catalan issue when they came to power and that they are at least managing to bring down the tension. The 2017 independence drive took place under the central government of Popular Party (PP) Prime Minister Mariano Rajoy, who was widely criticized at the time for inaction in the face of the rising challenges for the region as well as the police violence that unfolded against citizens the day of the illegal referendum itself. “The pardon is the worst thing that could happen for the hardest-line independence supporters, because it flies in the face of the claims that Spain is like Turkey,” a member of Sánchez’s team explained. “And the best thing for them would be a PP-Vox government.”

The pardons will be a decision that will be understood a lot better within a few months and even more so in a few years
Member of the executive

Ministers have been sharing a tweet from Elisenda Paluzie, the president of the pro-independence association ANC. “The pardons will not be a success,” she wrote. “They will be an intelligent political decision by the government against the independence movement. Politically they are disarming us and internationally they will be disastrous.” From the ranks of the PSOE, they believe that Paluzie “is seeing the play more clearly than the Spanish right, which once again is helping the independence movement.”

The major doubts that still overshadow this decision are whether or not the real motive of Sánchez for granting the pardons is the need to ensure he continues to have the decisive support of the 13 ERC deputies in Congress – the idea of a “self-pardon” that is being promoted by the PP. The government has responded by pointing out that it has already managed to pass its budget, its political survival is not currently at risk and all things being equal it will be able to see out the rest of its term without any problems. “This is much more important than the ERC or the PSOE,” one minister said. “This is being done to find a way out of the biggest political problem in Spain during 40 years of democracy.”

With more than two years ahead of him in government, Sánchez believes that he has the time to convince his voters that the pardons will have been worthwhile if they manage to refocus the Catalan issue. But the battle will be all-out from now on. “It’s the fight between the Spain that could be, with a deal with Catalonia, and the impossible,” one minister argued. “We will see who triumphs.”

Offense of sedition to be modified

The Justice Ministry has been working for the last few months on a change to Spain’s Criminal Code to modify the offense of sedition and bring down the punishment from the current level of eight to 15 years in jail. This modification would assist with the process of pardoning the jailed Catalan separatist leaders, given that they were convicted of the aforementioned offense, among others.

The legal reform was announced by the government before the coronavirus pandemic hit, but has been on hold until the right moment can be found for it to be sent to Congress. The executive is planning on taking it to the Cabinet in the coming weeks, potentially before the pardons are approved via royal decree.

According to government sources, the legal reform would serve to support the arguments behind the pardons – a reduction of the sentence for the offense of sedition would be retroactive and thus would benefit the jailed independence leaders, making it easier to defend the pardons, which would have the same effect.


English version by Simon Hunter.

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