10th Dec 2023


Why Spain's amnesty deal with Catalans is source of resentment

  • The controversial amnesty law will allow acting prime minister Pedro Sánchez to finally form a new Spanish government this week (Photo: Toshiko Sakurai)
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The political temperature in Spain is rising in response to the country's new amnesty law — designed to tackle the conflict with Catalonia while also enabling the incumbent Spanish socialist party to stay in power and form the next government.

The bill has sparked concerns about the rule of law as well as potential implications for the country's judicial independence, constitutional integrity, and accountability.

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  • The amnesty law is an important concession to the former Catalan president and MEP Carles Puigdemont (l) who has been living in self-imposed exile in Belgium since he fled Spain in 2017 to evade charges of embezzlement and disobedience (Photo: European Parliament)

The amnesty law is the cornerstone of the agreement reached last week between the socialist party (PSOE) and a Catalan pro-independent party, which will allow acting prime minister Pedro Sánchez to finally form a new government this week.

From the very onset of the negotiations, the bill emerged as a key prerequisite for Carles Puigdemont's Junts party in return for their backing for the re-election of Sánchez as the country's prime minister.

The move, however, has reignited focus on Catalonia's quest to break away from Spain with full independence, and sparked mass protests across the country, highlighting growing unease among the Spanish public.

Protests at the weekend were not an isolated incident. They came after several days of demonstrations mainly at the PSOE headquarters in the capital, Madrid, with clashes with the police, and fascist flags and Nazi salutes on display.

The far-right party Vox, which has been organising some of these protests, has accused Sánchez of a coup.

And the centre-right Partido Popular [Popular Party] says that the amnesty law violates the rule of law in Spain, which has prompted criticism from the head of Europe's conservative parties, Manfred Weber, chairman of the European People's Party.

"The socialist amnesty pact (…) risks breaching the separation of powers and undermining judicial independence," warned Weber. "Respect for the rule of law is not negotiable in the EU".

However, the bill has also been opposed by some socialist party members, including Felipe González, a former prime minister.

This week, EU foreign relations chief Josep Borrell also suggested that he opposes the amnesty deal.

"Those who know me in Spain can imagine what I think … the political agreements reached with the pro-independence parties certainly cause me a lot of concern," he said on Monday.

Borrell, who is from Catalonia himself, is from the PSOE and served as Sanchez's foreign affairs minister from 2018 to 2019.

In the past, the PSOE has consistently opposed any form of amnesty for Catalan separatists.

Additionally, several legal bodies have also expressed opposition to the law, including conservative judges of the General Council of the Judiciary, various regional courts, and several associations of judges.

The Spanish Supreme Court itself warned this week that it is essential to respect the independence of judges, seen as "incompatible" with the last week's proposed law.

"The rule of law…demands absolute respect for the division of powers," reads the communique of the top Spanish court.

Can the law be appealed?

The amnesty law, unveiled by the Sánchez's party on Monday, would drop legal action against hundreds of politicians, public officials, citizens and policy offers facing criminal charges for their role in the unilateral secession attempt of October 2017 and riots following the 2019 ruling.

And it will also apply to those prosecuted for the symbolic 9N referendum of 2014.

But it does not name specific beneficiaries — which would be unconstitutional.

In 2021, the government of Sánchez granted pardons to nine Catalan independence leaders who had been imprisoned for their roles in that 2017 referendum.

The amnesty law is an important concession to the former Catalan president and MEP Puigdemont, who has been living in self-imposed exile in Belgium since he fled Spain in 2017 to evade charges of embezzlement and disobedience. Puigdemont has previously warned that he would not give up on Catalonia's unilateral right to independence.

Once the law is approved, Puigdemont, ex-Catalan health minister and current MEP Antoni Comín, as well as the former Catalan education minister and MEP Clara Ponsatí, will be able to return to Spain without fear of arrest.

The swift implementation of the law, a priority for the PSOE, will be undertaken by each court that has previously issued a judgment or initiated proceedings relevant to the matter.

The amnesty will be applied with a "preferential and urgent" approach and potential (and expected) appeals will not delay its application, according to the draft law published by Spanish media.

Judges, who can file questions over the unconstitutionality of the bill, are obliged to apply the amnesty within two months after the law enters into force.

One of the most controversial points of the negotiations between PSOE and Junts was the investigation of so-called 'lawfare' cases, but the amnesty law does not make such a reference.

On 1 October 2017, Catalonia held an illegal referendum and subsequently declared its independence, before backtracking (Photo: Helena Spongenberg)

Not Hungary, not Poland

Although the narrative of those who oppose the amnesty deal is focused on the rule of law and democratic backsliding, the image of Spain within the EU is not the one of those 'illiberal democracy' member states — and that plays a significant role in shaping the ongoing debate around the amnesty deal.

The Spanish bill refers to a precedent in Portugal where amnesty was granted to young offenders in the summer of 2022 during a visit by Pope Francis.

After all, European countries are familiar with the concept of 'amnesty'. After World War II, several European countries granted amnesty to some Nazi collaborators and those involved in resistance movements — in a bid to enhance national reconciliation.

For experts, however, the nature and timing of the amnesty law itself is problematic.

"There is sufficient evidence to understand that this law has been drafted by the direct beneficiaries of an amnesty for corruption crimes," Camino Mortera Martínez from the Centre for European Reform (CER), a think-tank, told EUobserver.

This violates the rule of law and the legal principle that one cannot draft criminal laws ad hominem — but it also highlights that one cannot adopt "transitional justice laws, without social consensus", she added.

Yet, the mechanisms for the protection of the rule of law in Europe tend to be very slow.

In a political move last week, EU justice commissioner Didier Reynders from the liberal group Renew Europe wrote to the Spanish government to request further details on the bill.

But Madrid has not provided any details, stating that the bill has not been filed yet.

Now the Spanish authorities want to meet with Reynders and EU commissioner for transparency Věra Jourová to explain the law.

For Mortera Martínez, the law constitutes an attack on the separation of powers in Spain which is "very dangerous" — but she also highlights that these challenges cannot be easily compared to those of other countries.

"Spain is not Poland, it is not Hungary, it is not Romania. It is also important to highlight this."

With his controversial move to secure Catalan support, Sánchez's decision to grant amnesty seems to mark a significant moment in Spanish politics, generating support as well as criticism.

But only time will tell the true cost of this political pact for Sánchez and the Spanish socialists.

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