After the internal fracture left by the Constitutional Court’s (TC) endorsement of the Amnesty Law in June of last year – the six progressive magistrates supported the grace measure while the four conservative judges voted against – the court of guarantees is preparing to reissue that division after the holidays. On the table, the first of the appeals for protection of those convicted by the “procés”, that of former minister Jordi Turull, whose resolution will mark the way, by application of doctrine, for the protection demands of the rest of the convicted and, also, of the escaped defendants, led by former president Carles Puigdemont.
That presentation, which the Plenary will address starting on September 22, corresponds to Judge José María Macías, and taking into account his position in the conflicts between both courts, everything indicates that the draft sentence will lean towards dismissing the appeal by considering a question of ordinary legality the interpretation of the Supreme Court of the misappropriation of the “procés”, which he equates with patrimonial enrichment (by not having paid for the independence process out of his own pocket, but from the public coffers), supposed expressly excluded from the scope of application of the grace measure in the Amnesty Law itself.
Macías was not part of the TC when the guarantee court annulled the sentences for the million-dollar ERE fraud – among them the former socialist presidents of Andalusia José Antonio Griñán and Manuel Chaves – since he joined a month later. However, both in various individual votes and in his public statements, the former member of the General Council of the Judiciary (CGPJ) has made his position clear on the matter.
“It cannot overthrow the position of the Supreme Court”
Thus, in an interview in LA RAZÓN as soon as he was appointed magistrate of the Constitutional Court in August 2024, Macías emphasized that the TC “cannot displace the position of the Supreme Court” as the summit of the judiciary in our country.
Asked precisely about the decision of the TC to annul the sentences of the ERE, he stated in this regard that “a decision of a Constitutional Court that annuls a decision that in turn has been adopted by the Judiciary, the Supreme Court, necessarily settles the controversy”, posing, as he revealed, “a situation of controversy and a problem of limits with which one must be extremely careful.”
Macías stressed that, with article 123 of the Constitution in hand, “the one who completes the higher judicial organization at all levels is the Supreme Court, without prejudice to the function of the Constitutional Court in guaranteeing the Constitution itself.” “The Supreme Court continues to be the highest body at all levels,” he highlighted before ensuring that “what the Constitutional Court cannot do is overthrow that position of the Supreme Court without calling into question that article 123.”
The decision of the Plenary
“The TC has a political composition, it is politically appointed,” he argued, “and a political appointment body is being given the power to nullify the power that is called upon to control politicians. That requires being very careful with the limits.
According to the sources consulted, if, as it seems, this presentation closes ranks with the Supreme Court by denying that the Constitutional Court can act as a third instance to amend a jurisdictional decision, and the progressive majority rejects those conclusions, the possibilities that open up are several. On the one hand, Macías assumes the position of the majority of the TC and writes a ruling in that sense without making a particular vote. On the other hand, they should do so by leaving their disagreements in writing by drafting a dissenting vote. And, on the other hand, a judge from the majority who would be in charge of expressing the conclusions of the progressive sector takes over the drafting of the resolution and that he resigns from the presentation.
Unlike what happened with the deliberations on the Amnesty Law – when Macías himself was removed from the procedure and the former Minister of Justice Juan Carlos Campo stepped aside for having shown himself against the measure in the processing of the law –, the Plenary will now decide on the amparos with its composition of twelve complete magistrates. However, it is not foreseeable that Campo will not vote in the same direction as his progressive colleagues in support of the amparos, which would mean a six-way tie that would force Conde-Pumpido to decide with his casting vote. A scenario that the president of the TC prefers to avoid, because the shadow of the endorsement of the expropriation of Rumasa by the Government of Felipe González in 1983 with the decisive vote of the then president of the Constitutional Manuel García Pelayo is still too long.
After the approval of the European Justice, once the Court of Justice of the EU (CJEU) has ruled out that the Amnesty Law clashes with community law, the decision on these protections by the court chaired by Cándido Conde-Pumpido will be the penultimate step for a possible return of Puigdemont and to apply the amnesty to all the appellants. Supreme Court through, since it will be the “procés” court and the instructor of the case, Judge Pablo Llarena, who will have the last word if, as everything indicates, these protection demands are finally upheld by the maximum guarantor of the Constitution.
Puigdemont’s return
With the support of the CJEU and the Constitutional Court, Judge Llarena will in any case find it difficult to maintain the precautionary measures against Puigdemont. According to the sources consulted, if the amparos are consummated, everything indicates that the magistrate will annul the national arrest and prison order against the former president, which would open the door for his return to Spain. In what procedural situation? Everything will depend on the position adopted by the “procés” court after analyzing the TC ruling. If it is decided to raise a preliminary question before the Luxembourg court, the application of the amnesty to both the convicted and the fugitives would once again be on hold. And if, on the other hand, the Supreme Court were to relent and rectify its refusal to grant amnesty for the embezzlement, not only would the procedure regarding Puigdemont and the rest of the fugitives be archived, but the disqualification sentences that still weigh on Oriol Junqueras and the rest of the convicts would also be annulled, preventing them from running in elections (the Government’s pardon annulled their prison sentences, but the disqualification sentences continue). current).
In any case, the sources consulted are very skeptical about the possibility that, with a ruling from the TC favorable to pro-independence interests and after the endorsement of the European Justice, the Supreme Court will choose to go to the CJEU once it has already made it clear that the sovereignty process did not affect the financial interests of the European Union.
Thus, if all these premises point in the right direction, Puigdemont’s return could be a fact next fall, or at the latest before the end of the year, coinciding with nine years since his escape from Spain in 2017.