The Constitutional Court’s refusal to lift the disqualification of ERC leader Oriol Junqueras and three other trial convicts while their protection appeals are resolved seriously bothers the aspiration of the fugitive Carles Puigdemont to the guarantee body … cancel the national arrest warrant that weighs on him and by which he cannot come to Spain without being detained, while the magistrates do not comment on the protection that he has also presented. And this because, according to judicial sources reported to ABC, the arguments which led the TC to reject the precautionary measure requested by the people already convicted will probably also apply to those who were prosecuted for this same cause, but, by escaping the action of justice with their flight, they have not yet been able to be judged for their participation in the “trial”.
As this newspaper learned from judicial sources, the request for a precautionary measure from the former president of the Generalitat, of which the “progressive” judge Laura Díez is the spokesperson, should be heard during the plenary session in January, and everything indicates that, as happened in the case of Junqueras, Romeva, Bassa and Turull, it will be determine the opinion of the prosecutor, that, as for his precautions, also in this case he opposes the lifting of the arrest order issued by the instructor of the Supreme Court Pablo Llarena. Both the judge, who keeps the fugitives prosecuted, and the Second Chamber of the Superior Court, of which this magistrate is a member, consider that it is not possible to amnesty the crime of embezzlement (for which the convicted remain disqualified and the fugitives prosecuted) because the amnesty law itself excludes the modality of personal enrichment in which, according to the Chamber, the conduct of those who were then leaders of the Generalitat of Catalonia.
“Exceptional and restrictive”
In the order relating to Junqueras, identical in its legal bases to those of the other disqualified persons, the TC recalls that the organic law which regulates it establishes as a general norm that the filing of an appeal for protection will not suspend the effects of the contested resolution. “When constitutional protection is sought in respect of final judicial decisions, the suspension of execution always entails in itself a disruption of the judicial function “which includes the power to execute what is judged, therefore the general rule must be that the suspension is inadmissible, which is thus configured as a provisional measure of exceptional character and restrictive application.”
The magistrates also appeal to the “general interest” in the implementation judicial resolutions, which must prevail, they say, and in this sense, the fact that those seeking to be disqualified held “relevant public functions at the time of the events (Junqueras was vice president), the nature of the crimes attributed and the characteristic particularities of their commission (…) corroborate” the rejection of the measure. Added to this is the fact that the precautionary analysis cannot anticipate the judgment on the merits of the violations of rights observed.
Lifting this arrest warrant would amount to determining in advance whether the Supreme Court violated rights by not applying the amnesty law.
Although the procedural situation of Puigdemont and the other fugitives is not the same as that of the convicted (since the fugitive has not even been tried), the sources cited above emphasize that the constitutional doctrine affects both in the same way, even if in one case it is a conviction and in the other a precautionary measure. The latter is also a “firm resolution” whose legitimacy is presumed. The lifting of this arrest warrant would mean a rapid decision on the merits of the appeal, that is to say on the question of knowing whether the Supreme Court violated the rights of the separatists by not applying the amnesty law.
There is no “irreparable harm”
Even if the right defended by the convicted person is access to public office, in the case of the escaped “ex-president”, what is invoked is individual freedom. Puigdemont has the report against the public prosecutor also put forward by ABC. In his writing, the Attorney General at the TC, Pedro Crespo, assures that the maintenance of the arrest warrant against Puigdemont does not cause “irreparable harm”, because constitutional jurisprudence requires that it be “real”, and not “a future, hypothetical or a simple fear”, and that the restoration of the fundamental rights whose violation is reported is late, so that the restoration of the right is definitively prevented from being effective. “It is clear that none of these circumstances occur in this case (…). If the preventive suspension requested by the complainant would be excluded even in a situation of effective deprivation of liberty, it should be rejected especially since this hypothesis of effective and present restriction of the fundamental right does not even exist in this case,” he says.
It also explains that the substantive decision that the accused expects from the TC can be satisfactory – the annulment of the contested judicial decisions – or negative – their confirmation – “regardless of the fact that his personal situation is awaiting a search and arrest warrant, or that he is actually detained, imprisoned, free, in Spain or outside its borders”. Despite this, Crespo asserts, the petitioner establishes an “absolute coincidence” between the object of protection and the suspension of the order. “It is therefore incontestably obvious that accepting the requested suspension is equivalent to estimating in advance the request for protection.
“An indisputable authority”
In the letter in which Puigdemont’s lawyer requested the lifting of the precautionary measure, Gonzalo Boye appealed to the opinion of the Advocate General of the CJEU as an “indisputable interpretative authority” and, in this sense, cast doubt on whether national courts “invoke European doubts.” “His declaration, together with the declaration of the constitutionality of the amnesty, eliminates any legal basis for keeping an arrest warrant in force while the amparo is processed,” Boye warned.
He also pointed out that the Attorney General clarified that the scope of the amnesty includes “all actions related to the so-called process” and that “when the circumstances for applying the amnesty arise, the court must issue a resolution that terminates the procedure and proceeds to its archiving without further processing.” “It is not possible to maintain the arrest warrants – even temporarily – while the European standard requires immediate archiving as soon as the provisions of the law are verified,” he insisted.
According to him, the amnesty law must be “fully effective and applicable” during the processing of the amparo appeal. “avoid irreparable damage”, since “there is no reasonable legal doubt justifying the persistence of arrest warrants in a scenario in which national and European law supports the immediate effectiveness of amnesty”. In addition, she adds, “the execution of the arrest warrants would produce irreparable harm” which “would irreversibly affect the personal freedom, the political participation of the applicant, the exercise of his representative mandate and his freedom of movement”. “A possible decision to maintain it could not completely repair the effects of a deprivation of liberty carried out before deciding on the merits of the appeal,” he added.
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