Questions and answers about the amnesty law in Spain: Can Puigdemont go back to Catalonia?

The former Catalan premier should be able to go home without fear of being arrested, but it could be a while before his case is fully dropped if the Supreme Court raises a question of unconstitutionality

Former Catalan premier Carles Puigdemont.
Former Catalan premier Carles Puigdemont.Delmi Alvarez
Reyes Rincón

The draft of the amnesty law agreed on by Spain’s Socialist Party (PSOE) and its partners entails amnesty for the crimes and for the administrative and accounting responsibilities tied to the independence referendums held in Catalonia on November 9, 2014 and on October 1, 2017. The measure also covers any actions committed between 2012 and the present that aimed to “claim, promote or seek the secession or independence of Catalonia.” Once the bill becomes a law, the courts will have two months to apply the amnesty, although it will be possible to raise questions of unconstitutionality that could delay the effects of the measure. In any event, former Catalan premier Carles Puigdemont, who fled to Belgium after leading the failed breakaway attempt of 2017, should be able to return to Spain without fear of being arrested when the law enters into force. Even then, it could be some time before the ongoing case against him in the Supreme Court is dropped.

Who benefits from the amnesty?

The law will benefit nearly 400 people, including politicians and public officials, citizens who were prosecuted for the riots after the 2019 conviction of secessionist leaders, and police officers. The amnesty includes people who were prosecuted for an early, non-binding consultation held on November 9, 2014 under then-Catalan premier Artur Mas, and those involved in the preparation of the subsequent illegal referendum of October 1, 2017 under Puigdemont. The law also covers acts that were committed between 2012 and the present that are not directly related to those votes, but which aimed to “claim, promote or seek the secession or independence of Catalonia.” The law will strike down a ban on holding public office that was handed down to Oriol Junqueras, head of the Catalan Republican Left Party (ERC) and Puigdemont’s deputy at the time of the referendum. It will also wipe away the case opened against Puigdemont and the aides who fled with him to Brussels to avoid prosecution. Former senior officials of the Catalan government who were accused of helping prepare the unlawful vote and promote it internationally will remain untried. Likewise, the police and Civil Guard officers who were charged with injuring people during the crackdown on October 1, 2017 will see those charges dropped. Negotiators have estimated that around 73 officers will benefit.

What is excluded from the amnesty?

The bill does not cover acts against people resulting in death, abortion or injury to the fetus, the loss or permanent damage to an organ or limb, impotence, sterility or serious deformity. The crimes of torture or inhuman and degrading treatment are also excluded “provided they exceed a minimum threshold of seriousness.” Spain’s two largest police unions, Jupol and SUP, say that this could leave out from the amnesty “the vast majority of the accused officers” because around 45 of them have been charged with attacks on people’s moral integrity (inflicting degrading treatment on another person, seriously undermining their dignity.) Acts classified as terrorist crimes are not contemplated in the amnesty bill either, but only when a final sentence has been handed down. This means that even though Carles Puigdemont is being investigated by a Spanish court on suspicion of terrorism over a case known as Democratic Tsunami, he would still benefit from the amnesty.

How will the amnesty be applied?

To be effective, the amnesty law must be applied by the individual courts that previously handed down a sentence or opened up a procedure involving acts to promote Catalan independence that occurred within the period stipulated by the bill. The wording of the document establishes that the courts will apply the amnesty “on a preferential and urgent basis,” for which a maximum period of two months is given. The court will eliminate the criminal record derived from the conviction. Any outstanding search and arrest warrants at the national, European and international level will be voided. The entry into force of the law will immediately annul any precautionary measures imposed on any of the beneficiaries, who will get back bond money deposited in places such as the Audit Court.

What happens if the law is appealed?

The amnesty law could be appealed before the Constitutional Court by members of the Congress of Deputies, by senators or by regional governments, but the bill establishes that the amnesty will be applied within two months regardless and will not be placed on hold while these legal challenges get resolved. However, the courts that are forced to apply the amnesty may also raise questions of unconstitutionality before the Constitutional Court, and according to existing legislation on the matter, this “will give rise to the provisional suspension of the proceedings in the judicial process” until the Constitutional Court issues a ruling. This implies, according to legal sources, that the judges who open up this avenue will not apply the amnesty until the Constitutional Court issues a decision. Other sources said that the bill does not make it very clear whether the two-month rule could override this delay.

Will Carles Puigdemont be able to go to Spain without fear of being arrested?

The case involving charges of sedition and embezzlement against Puigdemont and other fugitives from Spanish justice is being handled by the Supreme Court. It is the latter’s Criminal Section (not the judge, Pablo Llarena) that must apply the amnesty law and decide, if appropriate, whether to raise questions of unconstitutionality before the Constitutional Court. Everything indicates that it will do so, which, in principle, would mean that the application of the amnesty is put on hold, unless, as some sources point out, the judges decide that the amnesty law curtails the ability to suspend the measure. These sources are inclined to consider that, in the case of Puigdemont and his aides, even if the Supreme Court files unconstitutionality questions and the amnesty is placed on hold, no judicial measures could be taken against them, so that they should be able to return to Spain without risking arrest.

Will Puigdemont and Oriol Junqueras be able to run in the next Catalan elections?

The former Catalan premier and the rest of the politicians who are fugitives from Spanish justice have not been barred from public office, so if they return to Spain, they could run in regional elections even if the amnesty has not been fully applied pending possible questions of unconstitutionality. The case of Oriol Junqueras and the other pro-independence leaders who remained in Spain, faced trial and were convicted by the Supreme Court is different: their prison sentences were eventually pardoned, but they remained barred from office. This punishment will expire with the amnesty, but if the Supreme Court elevates the case to the Constitutional Court, the disqualification will remain in force until there is a response, legal sources point out, except in the event that judges feel the two-month deadline overrides all other considerations.

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