The mechanism of the Constitutional Court (TC) for a pronouncement on the Amnesty Law has been launched with the admission for processing of the first resortdriven by the Supreme Court (TS), but there is still a long way to go. Pending decision (the first, that of its mere processing) other 19 resources: three of the High Court of Justice of Catalonia and others 16 of the PP and its regional governments and the Castilian-Manchegan Executive of the socialist Emiliano Garcia-Page.
And they are about to arrive (before, however, they must exhaust the legal route) appeals to be filed by the leaders of the “procés” convicted or prosecuted –Oriol Junqueras and Carles Puigdemont among them– those to whom the Supreme Court has denied the application of the Amnesty Law.
The popular appeals, moreover, are peppered with recusals against the president of the TC, Candido Conde-Pumpido; Judge Laura Díez, former senior official at Moncloa, and former minister Juan Carlos Campowhose abstention has already been accepted by the court of guarantees in the first of the appeals studied (and which will logically also cause it to be separated from the rest).
At the moment, according to sources from the TC, the lawyers of the court are already working on the preparation of a report determining whether the autonomous communities are legitimized to file an appeal of unconstitutionality. Article 32.2 of the Organic Law of the Constitutional Court (LOTC) empowers regional governments and parliaments when the contested law may “affect their own area of autonomy.”
In the 2003 ruling in which the Basque Government rejected the appeal of unconstitutionality filed against the Law of Political Partiesthe TC already clarified that although at first the court itself interpreted this article in a restrictive way, in the sense of “strictly jurisdictional”, from 1982 the jurisprudence on this matter is characterized by a “progressive flexibility of this criterion” that turns into a “true exception” the imposition of “material conditions” to be able to appeal. This legitimacy, therefore – clarified the TC – does not depend “on the claim of a violated competence, but on the purification of the legal system”, so it covers “all those cases in which there is a material connection point between the state law and the autonomous competence area, which, in turn, cannot be interpreted restrictively».
With this premise, the sources consulted indicate that “to amnesty political leaders of a regional government and parliament” for conduct that could have “harmed” the budgets of the other autonomous communities, and determining “to what extent the responsibility of these authorities extends” is a question that Yes, it affects the autonomous communities, “which would therefore be legitimised.”
No deadline for sentencingaccording to the sources consulted, the magistrates of the TC will also have to consider whether they should wait for the European Court of Justice to rule first (CJEU), which already has two preliminary questions duly registered (doubts of judges or courts about the adequacy of a national rule to Community law): one of the Court of Auditorsforced to file the accounting procedure against thirty former senior officials of the Generalitat (with Puigdemont, Junqueras and Artur Mas (head) for the diversion of funds to finance the 1-O and promote the “procés” abroad, and others two from the TSJ of Catalonia.
They will not be the last. For now, the National Court has already decided to raise with the CJEU its doubts about the adequacy of the regulation to Community law in relation to the amnesty of the twelve former members of the Committees for the Defence of the Republic (CDR) accused of terrorism.
To what extent does this procedure opened in the European Court of Justice condition the processing of appeals against the amnesty in the Constitutional Court? According to the legal sources consulted, between the prejudicial questions and the object of the appeals raised in the Constitutional Court “there are sufficiently relevant elements of coincidence” to that the Constitutional Court “waits.”
“At the moment, no judge has said anything about this matter,” say sources from the Constitutional Court, who nevertheless add that the court “has the power” to make that decision. But for it to be “viable,” they say, “the questions referred for a preliminary ruling must be studied in depth” raised before the CJEU.
Sources close to Puigdemont They assume that the Constitutional Court will have to wait. “If the law is contrary to European law, What does it matter whether it is constitutional or not?“, they point out. But they do clarify that this does not prevent the Constitutional Court from ruling “on the “precautionary measures”the request to suspend the refusal of the Judge Llarena to lift the arrest warrant for former presidentwhich would open the doors wide to a smooth return. Measures, they say, to which the Constitutional Court “should agree on a mere principle of prudence” and which the leader of Junts does not rule out also raising before the CJEU itself in the framework of the preliminary questions of the Court of Auditors.
The TC plans to give the next step next day 23when you should study the admission to process of the PP’s appeal against the Law (and their recusals). An issue that has been pushed aside from the agenda after formal defects were detected in the Popular Party’s brief, which, according to court sources, have already been corrected, so there should be no obstacles to the Plenary addressing the matter on those dates.