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The text for the proposed amnesty law that is about to be considered by the Spanish Congress includes not only Catalan president-in-exile Carles Puigdemont and the other leaders of the independence process prosecuted for actions linked to the organization and holding of Catalonia's two independence consultations, the "9-N" poll of 2014 and the "1-O" referendum of 2017, but also preparatory actions, protests to defend them or to oppose the prosecution and conviction of those responsible, and "the assistance, collaboration, advice or representation of any kind, protection and security to those responsible". The bill for the new law, to which has had exclusive access, will be applied to events that took place between January 1st, 2012, when the Catalan independence process began, and today, November 13th, 2023, when its parliamentary processing begins. The text, which makes no reference to lawfare, recalls the European directives that exclude acts of terrorism from an amnesty - a crime for which the National Audience is currently prosecuting Puigdemont and the ERC general secretary, Marta Rovira, among others - but points out that in order to be included in this category, such offences must reach a "minimum level of severity", with bodily injury or suffering.

Under the title of the "Amnesty law for institutional, political and social normalization in Catalonia", the preamble indicates this legislation as "a necessary step to overcome the tensions" caused by the political process which has taken place in recent years in Catalonia and "eliminate some of the circumstances that cause the disaffection that keeps a part of the population distanced from Spanish state institutions".


Cases included in the amnesty

The text emphasizes that the amnesty will have to be applied "preferentially and urgently" and that "decisions will be adopted within a maximum period of two months, subsequent appeals notwithstanding, which will not have suspensive effects".

As for the actions that are covered by the law, they are listed in Article 1 of the text. Included in the amnesty are action to demand or promote the independence of Catalonia; actions classified as crimes of usurpation of public functions or misappropriation of public funds arising from the independence process; actions to disseminate the independence project, collect information or acquire knowledge about similar experiences or obtain the support of other entities; actions linked directly or indirectly to these actions and carried out by those who had "provided assistance, collaboration, advice of any kind, representation, protection or security to those responsible" for the independence process; actions considered usurpation of functions or misappropriation of funds to finance or pay for the process; actions of disobedience, including public disorder, assault against an authority or resistance to allow the referendums to take place; crimes of abuse of authority related to the passing of laws to make possible the referendum; criticism of authorities and civil servants or of symbols and emblems, in demonstrations or artistic and similar activities; actions of disobedience and actions against public order and peace linked to the independence process; as well as actions taken in the course of police operations.

These cases could include, among many others, the case of the director of Carles Puigdemont's office, Josep Lluís Alay, prosecuted for spending on a trip to New Caledonia, on the occasion of that territory's 2018 self-determination referendum; the "bodyguard" case against former Catalan minister Miquel Buch and the Mossos police officer Lluís Escolà, as well as the cases linked to the independence process which are still pending trial at the Catalan High Court and Barcelona court No 13, for organization of the 1-O referendum.

Cases excluded

The draft law has, as has announced, 16 articles, two additional provisions and a final provision. Article 2 specifies the cases that are excluded from the amnesty, which include wilful acts resulting in death, abortion, loss of organs or limbs; torture or inhumane treatment; possession and trafficking of arms; crimes of treason and against the peace or independence of the state and related to national defence; crimes affecting the financial independence of the EU; and crimes motivated by racism or discrimination.

This article would exclude from the amnesty cases such as that of those responsible for injuring Roger Español, who lost an eye on October 1st, 2017 after being hit by a police projectile, as well as those officers accused of serious crimes.

The law specifies the effect of the passing of this amnesty on courts at different levels. With regard to criminal liability, it states that the competent judicial body will have to order the immediate release of people benefiting from the amnesty who are in prison; that the criminal records resulting from the conviction for the amnesty act will be wiped; the arrest warrants and orders for the search for and imprisonment of the people to whom this amnesty applies will be voided, as well as the Spanish, European and international arrest warrants.

With regard to responsibilities in government administration, the law orders the definitive closure of all administrative proceedings set in motion to apply administrative responsibilities for independence process actions, as well as the lifting of all interim injunctions.

Relating to the Court of Accounts

As well, the civil and accounting responsibilities derived from actions included in the amnesty will be "extinguished", including those that are currently subject to proceedings in the Spanish public auditing tribunal, the Court of Accounts. In fact, Friday of this week is the date scheduled for the trial against members of the Catalan governments of Artur Mas and Carles Puigdemont over the expenses of the 2017 referendum and the Catalonia's external promotion between 2011 and 2017. The law specifies that procedures that have already been sentenced and executed are excluded from this measure. Likewise, the interim injunctions agreed upon in preliminary hearings or those of first instance will have to be lifted.

The text indicates the reinstatement of their full active and passive rights (that is, such things as rights to employment and entitlement to pensions) to penalized or convicted public workers, as well as their reinstatement in cases where they have been removed from their jobs. They will not be compensated, but they will be recognized for their lost seniority.

All these measures will have to be applied by the judicial bodies involved in whatever phase the legal process is in, and will have to be carried out "on a preferential and urgent basis". These sentence reviews will also include the independence process leaders who received pardons in 2021.

The preamble to the law analyzes the existence of amnesties in the Spanish legal system, the fact that an amnesty is not contemplated in the Constitution although neither is it prohibited, but it is provided for in legislation such as the Criminal Procedure Law of 1882 and a long string of legal texts approved since the 1980s. It notes that this measure is provided for in the constitutions of Italy, France or Portugal and that its constitutionality is accepted, although it is not expressly included in the constitutional texts of Germany, Austria, Belgium, Ireland or Sweden, where more than fifty amnesties have nevertheless been promulgated, to thus assert that this measure is applicable "in circumstances of special political crisis", while it is also approved by EU law and given support under judgments of the European Court of Justice and the European Court of Human Rights.