Puigdemont would have to be tried and sentenced before benefiting from a hypothetical pardon

The general opinion among jurists is that the Constitution does not allow amnesties as demanded by the former Catalan president

MADRID, 25 Jul. (EUROPA PRESS) -

Former Catalan president Carles Puigdemont has become the key for Pedro Sánchez to repeat at La Moncloa, given the necessary support from Junts for a new investiture. Thus, the judicial future of the pro-independence leader once again gains political relevance, although the road to a hypothetical pardon would be long, since it would require a prior conviction, since the possibility of an amnesty raises constitutional doubts.

Puigdemont's judicial situation at the moment is that of a defendant in absentia for crimes of disobedience --punished with a fine of 3 to 12 months and disqualification from 6 months to 2 years-- and aggravated embezzlement --punished with between 6 and 12 years in prison-- for the illegal referendum held in Catalonia on October 1, 2017.

European courts have issued two key decisions in recent months that bring Spain closer. On the one hand, the CJEU ruled on January 31 that judicial authorities that receive Euro-warrants cannot refuse to execute them based on alleged violations of fundamental rights, unless systemic and generalized deficiencies in Spain are demonstrated. And, on the other, the TGUE lifted on July 5 the immunity that he enjoyed as a precautionary MEP.

These two decisions, added to the fact that his new prosecution - which the instructor of the 'procés', Pablo Llarena, had to review due to the criminal reform that repealed sedition and modified embezzlement - has been confirmed by the Supreme Court, have led the Prosecutor's Office to request this week that the magistrate reactivate the European and international search and capture orders against Puigdemont.

Although, as on previous occasions, Llarena issues a new European arrest and surrender order (OEDE) against Puigdemont, the legal sources consulted by Europa Press warn that his arrival in Spain would not be far from immediate, since it must pass the filter of the Belgian courts, which until now have always put up problems.

In this scenario, in which the Belgian judges use "banal reasons" for not complying with the OEDE, the magistrate could have to raise a new question for a preliminary ruling to the CJEU on the scope of the Euro-warrants, with the consequent delays. The questions resolved by the Court of Justice of the EU last January were raised in March 2021.

Once in Spain, either after this process or voluntarily, Llarena would have to take a statement from him with the sole purpose of notifying him of his prosecution for disobedience and embezzlement, to later conclude the summary and, where appropriate, advance to trial.

In the meantime, the magistrate could agree to the provisional detention of Puigdemont, since embezzlement is a crime punishable by more than two years in prison, the minimum required. Among the factors to be assessed, the law indicates the risk of flight and recidivism.

The granting of pardon, which those sentenced by the 'procés' in October 2019 already partially received in June 2021, is only feasible in the event that they have been tried and convicted.

And it is that the Pardon Law establishes that "inmates of all kinds of crimes may be pardoned from all or part of the penalty they have incurred", expressly excepting "criminally prosecuted who have not yet been convicted by final sentence".

In addition, it should be remembered that the pardon entails a series of procedures that involve obtaining reports from penitentiary institutions, the sentencing court or the Prosecutor's Office until the Government decides on the measure of grace.

Thus, the pardon would be the last box in a journey that could take years. Puigdemont's lawyer, Gonzalo Boye, assured this Tuesday in Rac1 that the former president is not looking for a personal solution, defending that amnesty is the "most impeccable and clean way" to solve the "problem".

However, the general opinion in the doctrine is that the Constitution does not allow amnesties, although there are minority positions that defend the opposite, according to experts consulted by Europa Press.

The last Amnesty Law was approved in 1977, as part of the political reform promoted by the Government of Adolfo Suárez, to forgive "all acts of political intent, whatever their result, classified as crimes and misdemeanors" until then.

With the entry into force of the Constitution, of 1978, its article 62 included the possibility of "exercising the right of grace in accordance with the law", qualifying that in no case may "general pardons" be granted.

The doctrine has understood in a majority way that, by expressly collecting the pardon but not the amnesty, and prohibiting general pardons, the Constitution does not admit amnesties. On the other hand, there are jurists who believe that if a pardon can be granted -which means pardoning a sentence-, an amnesty can be granted -which implies pardoning without the need for a prior judicial process-. However, experts predict that an eventual amnesty would end up in the Constitutional Court (TC).