The Court of Justice of the European Union (CJEU) endorses the amnesty law considering that it does not affect European interests nor is it contrary to the European directive on terrorism. This was announced in the reading of the ruling of a judgment that arrives a year and a half after the Court of Auditors and the National Court submitted the preliminary questions to the Luxembourg-based court.
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For the court, the law of oblivion aimed to “reduce institutional and political tensions and facilitate a scenario of reconciliation.”
The president of the CJEU, Koen Lenaerts, spoke this Thursday in response to the preliminary questions raised about the criminal oblivion by both the Court of Auditors and the National Court, regarding the possibility of amnestying the crimes of embezzlement and terrorism. The CJEU had to indicate whether the rule approved by Congress in 2024 is compatible with the EU legal framework, in relation to embezzlement and the expenses of the 1-O referendum and whether it is possible to extinguish accounting liability and, in the case of the National Court, for Operation Judas, in which some pro-independence activists from the Committees for the Defense of the Republic (CDR) were accused of terrorism.
The judgment explains that the approval and application of an amnesty law are the competence of the Member States and therefore the role of the CJEU is limited to seeing if the Union law regulations have been affected, such as the Directive on combating terrorism and the preliminary ruling procedure.
The ruling endorses the opinion of the Advocate General and considers that the amnesty for the procés has not violated the proper functioning of the national judicial system. It also considers that the law respects the “useful effect” of the Directive on combating terrorism, since it is limited to amnestying those terrorist crimes committed exclusively in the particular context of the movement in favor of Catalonia’s independence.
The Grand Chamber does raise some doubts about the two-month period set by the law to close all amnestied cases. Furthermore, it supports that while a preliminary question is pending, precautionary measures against the defendants should not be lifted.
Endorses maintaining precautionary measures
“The aforementioned amnesty law must not deprive the preliminary ruling procedure of its useful effect,” Luxembourg indicates. That is, it endorses that Supreme Court magistrate Pablo Llarena can maintain the national arrest warrant for former President of the Generalitat Carles Puigdemont while a preliminary question is pending in Luxembourg. Therefore, if the high court judge decides to raise another question to the CJEU, he may maintain the precautionary measures.
“This would happen if the maximum two-month period in which national courts must issue the resolution extinguishing liability and lifting the precautionary measures agreed upon were applicable even when a request for a preliminary ruling has been submitted to the Court of Justice, without being able to wait for it to issue a ruling – the statement reads -. If it were shown that the amnesty law contains provisions that give rise to this effect, they should be disapplied,” it adds.
Today two matters were studied, the preliminary questions raised by the Court of Auditors about their doubts in applying the amnesty in the accounting process for the organization of the October 1 referendum and the question raised by the National Court affecting a terrorism case of the CDR.
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Regarding the first, the CJEU clarifies to the advisor of the auditing body that the thirty former senior officials who were claimed 3.1 million euros must be amnestied because the fact of having used public funds to prepare the 1-O does not affect the financial interests of the Union. The hypothetical independence of part of the national territory would also not affect these.
Regarding amnestying terrorist crimes, it clarifies that the law itself excludes acts that have intentionally caused serious human rights violations. “It is up to the competent courts to identify the specific acts that are excluded from the amnesty,” it warns.
The European judges have considered that the fact that the law does not specify in detail the exact nature of the set of these acts nor set a threshold of severity for them, “does not breach the requirements of the principle of legal certainty.”
It considers that the Spanish amnesty law respects the principles of equal treatment and non-discrimination, “since, in light of its express purpose of promoting political reconciliation only in the context of a particular political movement, it cannot be considered that crimes committed in that context and crimes committed in other contexts correspond to comparable situations.”
The law does not violate the principle of primacy nor loyal cooperation with the EU”
Finally, this ruling also concludes that this law does not violate the principle of primacy or the principle of loyal cooperation, “which obliges Member States, in particular, to refrain from any measure that could jeopardize the achievement of the Union’s objectives.”
The ruling will be decisive in determining the future of Carles Puigdemont
The ruling is decisive in determining the future of the former President of the Generalitat and leader of Junts, Carles Puigdemont, who still awaits the amnesty to take effect for him while he remains in Waterloo almost nine years after the 1-O referendum. The former ministers Lluís Puig and Toni Comín are in the same situation. Also waiting are the president of Esquerra Republicana, Oriol Junqueras, and the secretary general of JxCat, Jordi Turull, as well as other former ministers such as Raül Romeva and Dolors Bassa, all still disqualified.
However, aside from the CJEU, the expectation is that the return of the former President of the Generalitat will still have to wait a few months. According to legal sources, the national arrest warrant against him will not be revoked until the Constitutional Court (TC) rules, presumably in October, on the appeal for protection he filed against the decision of Supreme Court judge Pablo Llarena not to apply the amnesty to him.
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The decision follows the opinion of the court’s Advocate General, Dean Spielmann, who in November endorsed most of the law and only criticized some formal aspects of the regulation, dismantling the European Commission’s theses which a year ago stated it was a self-amnesty. Although the opinion is not binding, it usually sets precedents. As usual, not a word was leaked in the hours before, despite the CJEU being very aware of the political consequences in Spain of this ruling.
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