The word of law support those who democratically and peacefully take to the streets against amnesty

The announced amnesty law, which will have a euphemistic name, will be orphaned of relevant legal reports, such as those of the Council of State and the General Council of the Judiciary. Why should it be?  Even, according to information from Ketty Garat “the legal services of the State have been guided by the Government in the performance of its powers in relation to the elaboration of the legal framework of the future amnesty law. Why? Government sources consulted by The Objective reveal three reasons. The first: Avoid leaks; The second and related to the above, that in the State Attorney’s Office “they are not trustworthy”, as evidenced by their position prior to the granting of pardons to those sentenced by the 1-O, avoiding expressing an opinion in favor of the relevance of the measure of grace”. In fact, we witness the ridicule that one part of the government has summoned its own team of external jurists who have already drafted its opinion (which the other part of the government says does not do so); And to such lies as the Constitutional Court has ruled on the viability of amnesty on no less than twenty-two (22) occasions, this issue has been dismantled by Quintero Olivares, Professor of Criminal Law and Ollero Tassara, Professor of Philosophy of Law and former judge of the Constitutional Court.

And as we are immersed in these lies, we may hear things like “sources close to Von der Leyen have stated that the president of the Commission is eager for Sanchez to be invested so that the amnesty desired by all is approved as soon as possible and that he is already working on the referendum”. What we do know is that the commissioner for Justice, Mr. Reynders, has declared in the European Parliament that he needs a formal document in order to be able to assess it, especially in relation to the crime of embezzlement, that is, the money that the coup plotters detracted from the public funds to finance the coup, that these things in Europe are seen with bad eyes.

According to rumours, one of the “fundamental” aspects on which the drafters of the law are focusing is in the story, that is, its preamble or explanatory statement, which will try to convince the unwary of the goodness of this legal spawn. But the explanatory statement will be a decoy, a real cock-and-bull story, because it is known by all that this law is drafter, exclusively, to satisfy the desire for power of a candidate for the presidency of the Government and thus achieve his investiture, with the indispensable placet of the fugitive Puigdemont. In the words of Teresa Freixes, Professor of Constitutional Law: “The only justification for amnesty is seven votes in favor of an investiture”. And, among many others, this was also expressed by the former State Attorney General, Hernandez“The only reason for the amnesty is to obtain Puigdemont’s votes to invest Sanchez.” And to conclude and not to be bored with further quotations on this great and irrefutable truth, we must quote the eloquent words of Juan Luis Cebrian, the first and most important editor of the newspaper El Pais: An amnesty by pleading a fugitive offender for the sole purpose of fulfilling the personal aspirations of a defeated at the ballot box would be a renunciation of the ethical and democratic values of socialism.” This is the true and tight explanatory statement.

The true story consists of explaining what happened in Spain (a democratic country of the European Union) in 2017 and that had been preparing for years before in Catalonia, because the rule is aimed at favoring a group of people who committed serious crimes (and that they have declared that they will do it again), consisting of a real coup d’état, trying to alter the constitutional order. All facts that are detailed both in the criminal convictions of our Supreme Court and in the judgments of the Constitutional Court, which will have to prosecute the unconstitutionality of a law that seeks to erase such facts and evidence that Spain is an oppressive country, not democratic and lacking in freedoms.

In its judgment of November 8, 2017, annulling the Declaration of Independence of Catalonia, the Constitutional Court (TC) affirmed that the action of the Parliament constitutes a “serious attack” against the rule of law and violates “with equal intensity, the democratic principle”. On this point, the Court recalls once again that “in the constitutional state, the democratic principle cannot be disconnected from the unconditional primacy of the Constitution.”

For the Constitutional Court, the succession of events, since STC 259/2015 annulled Resolution 1/XI of 9 November 2015 of the Parliament of Catalonia as unconstitutional, “they show the inadmissible claim of a part of the Autonomous Parliament to not respect ‘the constitutional order that sustains its own authority’ and to fail to comply with the resolutions of the Constitutional Court, obviating that it is the Autonomous Parliament itself that must ensure that its action is developed within the framework of the Constitution.”

Given the stubborn offense to the rule of law by the political institutions of Catalonia, in its judgment of 8 May 2018, the Constitutional Court, before a decision of the Bureau of the Parliament of Catalonia, in the field of the procés, which constitutes a manifest breach of what was decided by the Constitutional Court, it states that all public authorities, including legislative chambers, are obliged to what this court decides (article 87.1 of the LOTC). Therefore, the evident breach of this duty is what determines that the Bureau of the Parliament, in admitting the proposal, incurs the aforementioned constitutional violations, not the material content of the initiative, underlines the judgment. Therefore, what is decisive for this purpose is that the Bureau processes the initiative knowing that there is a decision of this Court that prevents it from taking action. The Plenary of the Constitutional Court considers that in the present case there are exceptional circumstances to appreciate that said organ of the Parliament failed to comply with the duty to respect the suspension declared by two rulings of September 7, 2017 of the effectiveness of the Law of Referendum of Self-Determination and that of the Decree calling that referendum. The Constitutional Court concludes that violation of this fundamental right determines, in effect, the violation of the rights of the citizens of Catalonia to participate, through political representation, in public affairs (art. 23.1 CE) and affects the proper function of the Parliament of Catalonia, which holds the representation of the people of Catalonia (art. 55.1 EAC) and not that of certain political forces, even if they are majority.

Well, as the Constitutional Court said, the disengagement laws and the declaration of independence put “at maximum risk, for all citizens of Catalonia, the validity and effectiveness of all guarantees and rights preserved for them both the Constitution and the Statute itself. They were left at the mercy of a power that claims not to recognize any limit.”

A documented account of the “coup d’état” is found in the article by Vidal-Folch and Fabra“The coup against the institutions” (https://politica.elpais.com/politica/2018/02/17/actualidad/1518895924_749358.html )who then argued that “the Catalan secessionist ‘procés’ has eroded the basis of democracy: The laws, the bodies representing sovereignty and the courts, which decide on legality… The main institution of a modern society is its democratic legality. That is exactly what was subjected to the parliamentary coup of September 6, 7 and 8 through the laws of “disconnection” or rupture that abrogated the validity of the Statute, the Constitution and the entire legal acquis of the Catalan and Spanish democratic order.”

As the editors of Hay Derecho have recalled, “In the face of such a serious attack on our democracy, the institutions defended the constitutional order as it corresponds in a rule of law: The Constitutional Court nullified the laws of rupture; 155 article was applied as a mechanism constitutionally foreseen for federal coercion to react to legal breaches and serious attacks against the general interest by Autonomous Communities; and criminal proceedings were initiated against the leaders of the tumultuous movements who were judged and sentenced for serious crimes after corresponding judicial process was held with all the guarantees.

We remember this now because, six years after those events, its main leaders, especially Mr. Puigdemont, a fugitive from Spanish justice since then, demand an amnesty as a condition to support the investiture of President Pedro Sanchez.

A claim that from there is right we consider should not be assumed in any case. On the one hand, there seem to be solid technical arguments to defend the unconstitutionality of an amnesty of these characteristics in accordance with our current constitutional framework…”

It is also being recalled in the press that the Government presided over by Mr Sanchez and being Minister of Justice the current judge of the Constitutional Court, Mr Campo, left written on official paper that amnesty is unconstitutional (“Persistence that in case of criminal repetition would lead to the assessment of the criminal record. Unlike the clearly unconstitutional amnesty, which is demanded by some pro-independence sectors, the pardon does not make the crime disappear”). Having also opined on the unconstitutionality of the amnesty, in 2021, the legal services of the Congress of Deputies, when ruling on a proposal of organic law that was finally inadmissible to process: “… The proposal for a law of reference seems to enter into a blatant and obvious contradiction with the provisions of Article 62(i) of the Constitution.”

Well, a multitude of illustrious and solvent jurists, most of them professors and professors of the University, former judges of the Constitutional Court and the Supreme Court, members of the Fiscal Ministry and the State Attorney’s Office (among others, Aragon Reyes, Bal, Conde Martin de Hijas, Cruz Villalon, Fernandes Romero, etc.). Freixes Sanjuan, Gimbernat, Quintero Olivares, Recuerda Girela, Ruiz Robledo, Silva Sanchez, Tapia, Tejadura Tejada Viada Bardaji) has been expressing, in recent months and in the media, solvent and well-founded legal opinions which conclude that, regardless of nomen iuris“it is called amnesty or another term to disguise it is sought at the end” the law is contrary to Articles 1 (Rule of Law), 9.1 (Subjection of public authorities to the Constitution and the rest of the legal system), 9.3 (legal certainty), 14 (equality of all Spaniards), 62.i (prohibition of general pardons) and 117 (independence and judicial exclusivity), of the Spanish Constitution. This without ruling out the possible and desirable intervention of the European Union, for violation of the rule of law established in Article 2 of the Treaty on European Union, as has already been denounced to the European Commission by the Association of Prosecutors.

The words spoken on 7 October 2023 by Jesus Maria Barrientos, President of the Superior Court of Justice of Catalonia, in the opening act of the judicial year, must necessarily be taken into account: ‘The law, either is general or is not law. The laws are approved, can be reformed and also repealed by those who only have the authority to do so, the Legislative Power. But during its validity, the laws equally oblige all those who are in Spanish territory, including the judges… No one can place themselves above it, or try to avoid the consequences of its violation”The Constitution “attributes exclusively to the judges who are members of the Judiciary the power to judge and execute the trial”, “None of the other powers, outside the legal channels, can interfere in the effective fulfilment of this constitutionally recognized power. Any attempt to interfere in its effective exercise is neither legitimate nor democratic.”