The investiture of Feijóo offers the PSOE a month to negotiate without focus the judicial shelving of the process

The main unknown is how the PP will be able to articulate a discourse in the coming weeks that implies opening up to negotiate with formations such as that of the Catalan separatists of Junts, led by the fugitive former president Carles Puigdemont and who place amnesty for the all those involved in the process. As if that were not enough, to the implausible hypothesis of an agreement between Feijóo and Puigdemont, we must add the support of the extreme right of Vox, a scenario from which other actors such as the PNV have already strongly dismounted.

That dead end of Feijóo will largely remove Pedro Sánchez from the spotlight for thirty days, the other candidate who conveyed to the king his intention to undergo an investiture. Many people in the PSOE see that period of time as a real political opportunity to advance with the group of parliamentary allies the details of an agreement that allows Sánchez to be re-elected as president once his attempt, the leader of the PP, fails.

In the specific case of the talks with Junts, especially delicate because they will address their demand for amnesty, it is also considered very propitious that they can take place in the background of current politics in order to favor a dose of discretion that seems essential in the opinion of the own protagonists.

“The method and the framework”

This discretion implies that no one in the PSOE in public and almost no one in private wants to offer at this point details of a high-voltage political operation and, in the opinion of all the parties involved, extremely fragile due to the issues to be dealt with and due to mistrust. mutual accumulated after years of disconnection. Although the door to the definitive judicial shelving of the process was left ajar by Pedro Sánchez himself this week.

“It seems clear that Catalan society is clearly committed to the reunion and we will maintain consistency with what we have been doing. Dialogue is the method and the Constitution is the framework”, the president responded during an appearance in Moncloa to a question from journalists.

The Socialists underline the positive impact that measures such as pardons for imprisoned political leaders and the reform of the Penal Code have generated in Catalan society to suppress the crime of sedition and reform that of embezzlement with an eye on hundreds of people prosecuted. And they admit that the bet is to follow that path that has also been so rewarded at the polls, according to the results of the 23J elections in Catalonia.

Without even assuming the term amnesty as their own language, they do recognize in the PSOE that the very complex political game that is now beginning and in which Carles Puigdemont is a co-star requires offering that part of the independence movement that until now had remained in the blockade, a clue from landing to pragmatism. It is, therefore, about accepting that Junts will need concrete results to offer its own environment and its own electorate, with the competition with ERC as a backdrop.

In Ferraz they assume that all this will imply articulating mechanisms that mean in practice burying the criminal consequences derived from the process for hundreds of people on whom requests for prison sentences, fines and disqualifications continue to weigh today.

Payment in advance

In Junts, the principles that govern the investiture negotiation are the same on which the conversations for the Table and the Presidency of Congress were based. “Verifiable facts and payment in advance”, emphasize sources from the independence party.

In the case of the amnesty, this payment in advance translates into a very specific request: that before the vote in favor of the seven deputies of Puigdemont in an investiture of Pedro Sánchez, the Congress already has a legislative initiative in the process of processing that the last legislature counted the report against the lawyers of the Lower House.

The commitment now required by the PSOE is that on this occasion, unlike the previous one, the progressive majority of the Table does qualify the text when it is registered and thus grants the green light to parliamentary processing. The way in which this proposal would be presented is still under debate and even who would go to the registry, being able to do so according to regulations, any parliamentary group or even any deputy with the signature of fourteen other members of the Chamber.

The legal impact

From a strictly criminal perspective, the scenario is also complex. On the one hand, the possibility of a general initiative, similar to an amnesty that would mean erasing any trace of the causes of the process that have not yet gone to trial, generates debate and doubts among jurists due to its constitutional fit and practical viability.

On the other hand, the fact that the claims of the independence movement go beyond the case of Puigdemont and affect dozens of causes derived from the sovereignist process with a very diverse casuistry also adds difficulties: from the preparations for the referendum in 2017 and the external expenses of the procés, the procedure for the escort of the ex-president in Belgium or the hundreds of young people accused of the riots that followed the Supreme Court ruling in 2019. On the latter there are dozens of cases pending trial, although several hearings have already been held and, In a majority of cases, the judges have refused to impose the harsh jail sentences requested by the Prosecutor’s Office or have even opted for acquittal.

The will of the independentistas is an amnesty, the approval of which would require a law in Congress. In this way, dozens of cases of the process would still be filed without trial, such as the one affecting Puigdemont, who could not be pardoned until he had a firm conviction. Some experts consider that the fact that neither the Constitution nor the Penal Code make any allusion to amnesty –neither allowing it nor prohibiting it– opens the door to its constitutionality. This is how renowned jurists have positioned themselves, such as the former president of the Constitutional Court and the Supreme Court Pascual Sala or the former vice president of the guarantee court Juan Antonio Xiol.

But it is an interpretation that is far from that made in 2021 by the lawyers of the Congress, when they recommended to the Board of the Chamber not to process an amnesty law proposed by ERC and Junts, considering that it represented a “blatant and obvious contradiction” with the Article 62.1 of the Constitution, which prevents “general pardons” and states that this measure of grace “corresponds to the king.” PSOE, PP and Vox followed the advice of the legal services and vetoed that the norm could be debated in plenary.

Regardless of how the negotiations with Junts and ERC end, everything indicates that any legal initiative to shelve the process will end up in the Constitutional Court after an appeal filed by the Popular Party. It is an issue on which the guarantee court has never ruled, but the Supreme Court has. In the report that opposed the pardons for the leaders of the process, the court that prosecuted those events criticized the “preference for amnesty” of the former leader of Òmnium Cultural, Jordi Cuixart. According to the judges, it is a measure that “does without a historical teaching that shows that, in not a few cases, amnesty laws have been the means used by dictatorial regimes to erase very serious crimes against people and their fundamental rights.”