The Supreme Court has declared that the crime of embezzlement attributed to the political leaders of the independence process, including Carles Puigdemont, is not amnestiable and, therefore, the former president will be arrested if he sets foot in Spain. Both the chamber that sentenced the case and Judge Pablo Llarena understand that the public money they used to promote the 2017 referendum did end up for their personal benefit because they did not have to pay for it out of their own pockets, which excludes this embezzlement from the amnesty. The Criminal Chamber, with one of the judges voting against, is raising a query to the Constitutional Court to decide the practical consequences that the amnesty should have, among others, for Oriol Junqueras, a decision on which his ability to stand in the next Catalan elections depends.

Both the Chamber and Judge Llarena have been waiting to rule on the scope of the amnesty for several days. In the case of the Chamber presided by Manuel Marchena, their arguments revolve around the execution of the final sentences and pardons for Junqueras and several other separatist political leaders after the 2019 sentence. In the case of Judge Llarena, for the embezzlement that he attributes since 2017 to Carles Puigdemont, Toni Comín and Lluís Puig, still pending extradition and trial. The Prosecutor’s Office, after having to take the matter to the Board of Prosecutors of the Chamber, opted to ask for total amnesty in cases such as Puigdemont’s.

The instructor and the Court agree in their arguments to deny that the pardon covers the use of public money to promote the process: the public funds did not end up directly in their bank accounts but it did prevent them from having to pay for the referendum out of their own pockets. “Public money to be used for personal pleasures, or to endorse the expenses of private goods or services and then authorise them to be paid for by the Administration, constitutes an act of clear enrichment,” says Llarena about Puigdemont, going so far as to compare the process to that of someone who pays for a son’s wedding with public money.

The Criminal Chamber, in another ruling issued simultaneously, emphasizes this argument: “Punishment for property crimes is not justified by taking someone else’s things, but by taking things from someone else,” say the magistrates who sentenced and condemned the procés in 2019. “Whoever squanders public funds and dedicates them to financing the independence process obtains the unquestionable personal benefit that comes from not contributing money from his own pocket,” they add.

According to the Supreme Court judges, this prevents the application of amnesty to the crime of embezzlement on its various fronts, both for those already convicted and for those who, like Puigdemont, are awaiting trial. And in the case of the former president, it has a direct consequence: Llarena maintains his national arrest warrant, which means that the Junts candidate to preside over the Generalitat cannot return to Spain without risking arrest.

Llarena also develops a second argument to justify why the amnesty does not cover embezzlement: in the case of the procés, it also affected the economic interests of the European Union. The money that was embezzled did not come from community funds, the magistrate acknowledges, but the procés affected the Union in another way: “It necessarily and automatically affected the configuration of Spain and the territorial dimension of the European Union, with a direct reflection on the income committed by Spain in the budget of the Union.” According to the magistrate, the procés compromised the collection of, among others, VAT.

The investigating judge of the procés has decided to apply amnesty to the crime of disobedience of which the ERC leader, Marta Rovira, was accused, in order to annul the arrest warrant against her. Rovira is still accused in another judicial case related to the procés: Tsunami Democràtic. The judge of the National Court, Manuel García Castellón, has tried unsuccessfully several times to have the Swiss authorities hand over the pro-independence leader accused of terrorism in the context of the massive protests against the procés sentence in 2019.

They don’t take the matter to Europe

The Criminal Chamber also had to decide whether the offence of disobedience attributed to some of those convicted for disobeying the Constitutional Court while promoting the process should be erased. The answer, in this case, is affirmative: “Disobedience is covered in its entirety, without nuances,” says the chamber presided by Manuel Marchena. But before putting into effect the practical consequences, the Supreme Court prefers to refer the matter to the Constitutional Court in relation to this specific offence: “It is evident that this order of closure cannot operate as an immediate cause for archiving a judgment.”

Both Llarena and the Court justify that the application of the amnesty to the misappropriation of public funds in the process be decided by the Supreme Court and not taken to the Court of Justice of the European Union through a preliminary question. Both consider, as they explain in their rulings, that the amnesty law and the Spanish jurisprudence on misappropriation do not require the intervention of the Luxembourg magistrates. “It makes no sense to raise a preliminary doubt on the interpretation of a factual, not a legal, question,” says the Court.

The Court devotes part of its ruling to harshly attacking the law and the legislative process that has given rise to the amnesty law. The legislator, it states, has interrupted “one hundred years of jurisprudence” on embezzlement to amnesty “some very specific facts and protagonists”, in relation to the independence process and political leaders. “A parenthesis that will close again for all other citizens who have been convicted of a crime of the same nature”, it adds. The ruling also criticises the “haste”, it states, with which the law has been passed. “It contributes decisively to making the interpretative work difficult”, the Supreme Court regrets.

Ana Ferrer, one of the judges who signed the sentence that condemned the leaders of the pro-independence process for sedition, embezzlement and disobedience, has issued a dissenting opinion to the rest of her colleagues. For her, “the only reasonable interpretation” of the amnesty law is to pardon this crime of embezzlement, not the “artificial deduction” of her colleagues. She recalls, among other things, that neither in the sentence of the procés nor in other resolutions of the case did they make reference to “any possible personal benefit of a patrimonial nature” that is now on the table.


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