The Catalan Process of Independence and the Spanish Amnesty Act

— Pau Bossacoma Busquets, Universitat Oberta de Catalunya.

After being rejected by the upper house of the Spanish Parliament, the Amnesty Act 2024 “for the institutional, political and social normalization in Catalonia” has nonetheless been passed by the lower house with an absolute majority (177 Ayes v. 172 Nays). To examine this controversial statute we first need to contextualize it within the so-called Catalan Process, which can be divided into the following four phases:

Phase 1: Right to choose. After the severe 2010 judgment of the Spanish Constitutional Court on an important reform of the Statute of Autonomy of Catalonia, political demands and actions for the “right to decide” emerged in Catalonia which led to the referendum of 9 November 2014. Although presented as a mere “participatory process” by the Catalan Government, this unilateral consultation was censured by the Constitutional Court but actually tolerated by the Spanish Government.

Phase 2: Unilateral self-determination. The pro-secession parties presented the 2015 Parliament of Catalonia election as a plebiscite. Given that the electoral results failed to provide a clear expression in favour of secession, the President of Catalonia announced that “a referendum or a referendum” would take place, implying that it would be unilateral if agreement was not reached. The claim for a right to decide evolved into a claim for unilateral self-determination. On 1 October 2017, a unilateral referendum took place, and this time the Spanish government did use force, among other means, to prevent the vote.

Phase 3: State coercion. Unilateral self-determination culminated in a liquid declaration of independence following the unilateral referendum. Beyond the imposition of direct rule from Madrid, the secessionist political and civil leaders were criminally prosecuted. Several leaders left Spanish territory in search of safer jurisdictions, while others were imprisoned before trial charged with rebellion. In 2019, the Spanish Supreme Court finally sentenced the latter for the crimes of sedition, embezzlement, and contempt of courts.

Phase 4: Clemency and de-criminalization. Repression and exhaustion partly explain a drop in unilateral pro-secession action, together with the moderation of the traditional secessionist party in Catalonia (ERC). While judicializing the secessionist dispute was a chief strategy of the right-wing Spanish government led by Mariano Rajoy, the left-wing government of Pedro Sánchez gradually changed this strategy to one based more on clemency, reconciliation and political negotiation. In 2021, the secessionist leaders were conditionally pardoned from imprisonment by the Spanish Government. In 2022, the offence of sedition was abolished and that of embezzlement was narrowed by parliamentary legislation.

In 2023, a legislative proposal was agreed between the Spanish Government and the main Catalan pro-secession parties to grant amnesty for those actions that may incur criminal, administrative or accounting liability carried out in the context of the referendums held in Catalonia on 9 November 2014 and 1 October 2017, including their preparation and their consequences. In essence, acts linked to the Catalan Process, such as those of promotion and achievement of independence, as well as those of resistance and public disorder related to this process.

Like most legal orders, Spanish law distinguishes between pardons (indultos) and amnesties (amnistías). Pardons are non-legislative acts issued by the Executive that affect specific individuals, whereas amnesties are legislative acts passed by the Legislature that potentially apply to all persons. The Spanish Constitution remains silent on amnesties, although it does forbid “general pardons” (indultos generales).

Should this prohibition extend to amnesties? Even if its main function is to limit the powers of the Executive, this prohibition also pushes for amnesty statutes to express themselves in a general, abstract and impersonal manner to comply with the separation of powers and the rule of law, which demand respect for independent and impartial courts and, in principle, granting them the power to decide on whether individual cases are eligible for amnesty. However, under the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, one of the functions of the Independent Commission for Reconciliation and Information Recovery is “to determine whether to grant persons immunity from prosecution for serious or connected Troubles-related offences”.

Ordinary amendments or repeals of criminal offences have a general, future application. By contrast, amnesties apply only retrospectively and to persons under certain circumstances in extraordinary contexts. As amnesty laws exempt from prosecution and punishment, the principle of equality forces distinction to be properly justified. This principle, as well as the rule of law, requires treating like cases alike. However, exceptional circumstances may justify exceptional responses.

Whether or not an amnesty is constitutionally justified, or tolerable at the very least, may depend on different ways of reasoning. I consider that a first question could involve a more political and philosophical perspective while a successive question could require a more legal and technical analysis:

1. Does the Amnesty Act pursue legitimate purposes considering the relevant facts and circumstances as well as legal rules and principles? We may call this the question of reasonable ends.

2. If the previous question is answered affirmatively, the next question could be the following: Is this law drafted coherently, adequately and proportionally taking into consideration both the legitimate purposes of the amnesty and the relevant legal provisions? We may call this the question of acceptable means.

The typical legitimate purposes of amnesty laws may be classified into ends of a rather deontological character (such as rectifying past wrongs and compensating the victims of a harsh conflict) and ends of a rather utilitarian character (such as smoothing processes of self-determination and democratization, as well as facilitating reconciliation).

Reconciliation between Catalonia and Spain seems to be the aim pursued by the Agenda del Reencuentro, an ongoing plan of the Spanish Government intending to set the basis for a project for unity, to recover affections and share a future in common that can only be based on dialogue and mutual trust. Beyond favouring political dialogue between the Spanish and Catalan governments, the Agenda also includes the target of “avoiding the judicialization of politics”.

As part of this agenda, amnesty and its will for appeasement, reconciliation and dialogue between Spain and Catalonia seem not to be the product of laudable principles or a clear electoral mandate, but that of Prime Minister Sánchez and his left-wing coalition government needing parliamentary support from the Catalan pro-secession parties to remain in power. Moreover, it may look like a self-amnesty since it was promoted by secessionist parties to relieve their members and voters from criminal, administrative and accounting liability. Despite all this, a legitimate purpose may still exist from a legal perspective.

Reconciliation of political and national pluralism was a key purpose of the 1978 Spanish Constitution, and this was pursued through a dialogue that resulted in a broad compromise. Some regard this purpose to be in line with the Amnesty Act 2024, as its own Preamble does, arguing that amnesty is part of the founding pact of the Spanish democracy. In fact, the most important precedent of this statute is the Amnesty Act 1977, which was passed by an even greater parliamentary majority than the Constitution, while the latter was being drafted by its seven founding fathers. However, once liberal democracy has been established, we can hardly expect such a high degree of democratic consensus.

Will the present phase of the Catalan Process, based on clemency and de-criminalization, open a new phase of accommodation of territorial pluralism? These acts of mercy may indeed facilitate dialogue, reconciliation and compromise between Catalonia and Spain, between secessionist and unionist parties, such as the initiatives included in the Report on the Clarity Agreement.

However, unlike robust measures of accommodation of self-determination demands such as consenting or agreeing to a referendum of independence, pardons and amnesty do not challenge the unity of the Spanish State and the sovereignty of the Spanish People (enshrined in Articles 1 and 2 of the Constitution). The clemency and magnanimity of the Spanish authorities may strengthen rather than weaken Spanish unity and sovereignty. In fact, the results of the Catalan elections of 12 May 2024 show a decline of the secessionist forces and a rise of the unionist ones.

An argument in favour of amnesty could be related to its potential or actual capacity for reducing the intensity of the political conflict, given that one of the most relevant purposes of punishment is the prevention of similar conduct in the future. However, as amnesties may also embolden their beneficiaries to commit further crimes, the United Nations has opposed amnesties for war crimes, crimes against humanity, genocide or gross violations of human rights, including in the context of peace negotiations.

Although the initial intention was to exclude such crimes from the Amnesty Act 2024, exclusions were narrowed while judicial prosecutions controversially broadened to the point of prosecuting secessionist leaders for terrorism. Perhaps a case could be made in favour of distinguishing amnesties for systematic breaches of human rights, which are often orchestrated, encouraged or tolerated by the deep state, from other amnesties to make up for the opponents and victims of the state.

Given that many judges regard the Amnesty Act 2024 as a political aggression to their constitutional mandate, the separation of powers and the rule of law, some will likely try to resist it through the suspension of its application in specific cases while they refer legal doubts to the Constitutional Court of Spain and the Court of Justice of the European Union. To counter this, the Amnesty Act 2024 provides that the beneficial effects of amnesty for those sentenced and prosecuted shall take place despite the request for a preliminary ruling or cuestión de inconstitucionalidad (question of unconstitutionality).

Perhaps the judges could develop a similar test to the one for adopting interim measures: analysing both the fumus boni iuris (Does the legal provision appear to satisfy the question of reasonable ends and acceptable means? Has this law been adopted by the competent authority and following the due procedure?) and the periculum in mora (Will the application or the suspension of the legal provision cause more damage? Will this damage be reversible or irreversible?).

In the end, judges willing to challenge the Amnesty Act 2024 may encounter a certain paradox: while the European Court of Justice may offer more independence and impartiality than the Spanish Constitutional Court, there appear to be more grounds and arguments available to strike down this legislation under Spanish constitutional law, given that the legislative act in question has rather weak connexions with EU law.

Suggested citation: Pau Bossacoma Busquets, The Catalan Process of Independence and the Spanish Amnesty Act, Int’l J. Const. L. Blog, June 20, 2024, at: https://www.iconnectblog.com/the-catalan-process-of-independence-and-the-spanish-amnesty-act/