Against the amnesty of the procés

In the autumn of 2017, a serious insurgency against the constitutional order took place in Catalonia. In open disobedience to the Constitutional Court, the Catalan Parliament passed, violating the procedures and the rights of parliamentary minorities, the breaking laws that declared the constitution of the Catalan Republic and the disconnection with the rest of Spain; And the Catalan government chaired by Carles Puigdemont organized an illegal referendum, for which he used personal data illegally and misappropriated public money. It should also be remembered that tumultuous uprisings were instigated to prevent the action of the Justice and the police intervention. The president of the Generalitat came to declare independence unilaterally. In short, as the Constitutional Court found, the Catalan authorities placed themselves “completely outside the law …, entering an unacceptable way of fact”, they “ceased to act openly in the exercise of their own constitutional and statutory functions” and put “at maximum risk, for all citizens of Catalonia, to be able to do so.” The validity and effectiveness of all guarantees and rights preserved for them both the Constitution and the Statute itself. He leaves them thus at the mercy of a power that claims not to recognize any limit.” Concluding that “such a serious attack on the rule of law violates the democratic principle” (STC 114/2017, of 17 October, FJ. 5).

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 annulled the laws of rupture; art. 155 as a mechanism constitutionally intended for federal coercion to react to legal breaches and serious attacks against the general interest by the Autonomous Communities; and criminal proceedings were opened against the leaders of the tumultuous movements who were sentenced and convicted of serious crimes after the corresponding judicial process held with all the guarantees.

We remember this now because, six years after those events, its main leaders, especially Mr. Puigdemont, a fugitive from the Spanish justice system 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. But, even if this is debatable at the legal level, in the present context the amnesty to procés would be a very serious attack on our democratic state of law, as stated in the Constitution of 1978, thus putting at risk the basic rules of coexistence and the guarantees of the rights of citizens.

First, because if any amnesty is an extraordinary measure of grace that breaks equality before the law, the problem will become more visible when certain people are free from all criminal responsibility while others serve their sentences for the same crimes. In addition, granting an amnesty as part of a negotiation for the investiture of a government is buying impunity in exchange for votes. The most obvious degradation of a rule of law. None of the amnesties that have been granted in recent years in the democracies of the European Union have been in exchange for an investiture vote.

Secondly, because those who would benefit from it have neither recognized the illegality of their actions nor show signs of a commitment to favour democratic coexistence in our country. Quite the opposite: They claim the legitimacy of 1-O and maintain a “Ho tornarem a fer!”. In this context, the granting of amnesty is not a form of reconciliation or forgiveness typical of situations of transition from dictatorship to democracy, of periods after a civil war or as a way to pacify an armed conflict, But the delegitimization of the rule of law, assuming the framework that the Spanish state is an authoritarian state and not a European democracy comparable to those of the EU and even superior to several of them according to rankings as prestigious as those of The Economist, V-Dem or Freedom House.

And, thirdly, because the fact that those who led that insurgency did so by invoking a political cause in defense of a non-existent right of self-determination does not detract from the reproach that in democratic and legal-criminal terms can be made of their actions. It is not possible to make a favorable judgment on the motivations of those who then acted to break the bases of democratic coexistence and, we reiterate, the response of the State in defense of the Constitution was adapted to the standards of a democratic state of law, Therefore, an amnesty would not be justified, which in the end would legitimize the rupture and question the legitimate response of the State, that is, to give reason to the independentists and their discourse on the lack of real democracy in Spain.

We insist that this problem is not reduced to a mere technical-legal question; we are at stake in the democratic state of law that established after a very long dictatorship the Constitution of 1978, which is the framework of our democratic coexistence. The intentions of those who seek these assignments are clear: Since they lack the majorities necessary to reform the Constitution by the established ways in it, they try first by the way of fact and now by the way of concessions that would empty the Constitution itself, leaving it as a mere shell where everything fits; There will always be jurists willing to sell themselves, and unfortunately counterbalance institutions, such as the Constitutional Court, have a clear lack of auctoritas, because of their colonization and capture by the main parties.

For all these reasons, Hay Derecho believes it necessary to express strongly our opposition to the granting of any form of amnesty for the infractions and crimes committed in the procés in exchange for votes for investiture. Beyond the constitutionality of the law, there are no conditions for it to occur; in fact, a few months ago it was rejected frontally by many representatives of the Government who now defend it. This is not a technical issue that affects only jurists, but a very serious risk: Without the rule of law worthy of the name, citizens are left defenceless because equality between citizens, limits to power and legal certainty disappear. This is how democracies begin to die.