The endorsement of the Constitutional Court to the Amnesty Law has brought an unexpected nuance, but of relevance for the causes open by the espionage that the National Intelligence Center (CNI) practiced dozens of independentistas. The Court of Guarantees has expanded the potential of amnestized behaviors for the opposite of the procés. The reinterpretation of the standard can open the door to include in the list of beneficiaries by the Criminal Oblivion Law to the former CNI Paz Esteban, so far the only one charged by the espionage scandal with the Pegasus program.
The Tacha that the Constitutional has been on a comparative grievance that the magistrates have seen in the amnesty law. Faced with the wide range of amnestified behaviors of the independence side, the norm approved by Congress limited the amnesty of the opponents to the process to the “police actions” to prevent sovereign acts. In practice, this has left as the only amnesty contrary to the procés to the police and civil guards who loaded in schools on October 1, 2017.
This “asymmetry”, in expression of the presentation approved this Thursday in the Plenary of the Court, is not sufficiently justified in the text or the preamble of the law and is “manifestly unequal.” The reason, argues the sentence that will be made public next week, is the fact that the norm, as approved, left out a group of people contrary to the procés that should be included to meet the objectives of “political reconciliation” of the law.
In the opinion of the Constitutional, this exclusion from those contrary to the process “lacks an objective and reasonable justification, contradicts the purpose of reconciliation pursued by law and violates the equality clause before the law.”
Among the groups mentioned in the west is not explicit to Peace Esteban, the CNI exjection imputed in three causes in Barcelona by the espionage to the former president of the Generalitat Pere Aragonese; the parliamentarians of ERC Josep Maria Young and Diana Riba; and the Republican MEP Jordi Solé.
The text refers to “other public employees” beyond the police, as well as individuals. The presentation document gives as an example a director of a school that would have refused to open the center for one of the sovereign votes, assuming that it has not been necessary to have the opening of a criminal case to any teacher.
“It is not appreciated (in the amnesty law) an explanatory reason for the exclusion of a wide cast of behaviors that are clearly framed in the political conflict that tries to redirect the scope of dialogue, such as those made by individuals or public employees in order to impose itself on the independence of Catalonia or the celebration of unconstitutional popular consultations,” concludes the text of the presentation.
As with Puigdemont or Junqueras, this Thursday's judgment of the Constitutional has no direct effects on Esteban or any of the other potential beneficiaries of the amnesty contrary to the process. In order for this to occur, in the case of the former ICT -Chief, the judges who instruct their causes or any of the parties must propose it.
Although it does not directly cancel the article, the Court does specify that article 1 of the Amnesty Law, which indicates the behaviors covered by the norm, is declared unconstitutional “with the scope and effects indicated on the increase of potential beneficiaries.
This has been one of the three pegas that the Constitutional has put to the norm. The other two affect minor issues. The Court guarantees the procedure to give a hearing to all the parties involved in the accounting causes of the Court of Accounts on the Process and annuls the article of the law that amnesty the crimes related to the procés consummated after November 2023, which according to the Constitutional would allow “continuing to develop without suffering any penalty already initiated”.
The rest, a presentation of almost 200 folios drafted by the Vice President of the TC, Immaculate Montalbán, endorses the lace of the norm in the Constitution. Contrary to what is sustained by the PP, the rule does not generate inequality, it is not arbitrary, it does not invade or replace the work of the judges and is not a prohibited general pardon in Spain, the court concludes. It is only necessary, concludes the Constitutional, to really include all those affected by the judicialization of the process.
The 2024 question about amnestying Esteban
A year ago the amnesty has already survived one of the causes in which Esteban is charged, the only governmental position forced to resign by the government to contain its independence partners after the outbreak of the Pegasus scandal in 2022.
Barcelona's hearing asked the judge to investigate the espionage to Aragonès if he had amnestized Esteban. The instructor replied that neither he, the Prosecutor's Office nor the former CNI -Chief, defended by the State Advocacy, had raised the application of the procés' criminal oblivion law. The Defense of Esteban and the Prosecutor's Office have always maintained that their performance was legal because it was supported by the Supreme Court.
Until this new interpretation of the Constitutional, the amnesty law did not contain any article designed to amnesty the espionage that the CNI practiced the independentists through the Pegasus program and that the center itself has admitted in parliamentary headquarters that occurred at least between 2018 and 2019, but always with the endorsement of the Supreme Court.
In the case of Aragonès, the CNI asked the High Court permission to spy on the then Vice President by placing him as leader of the CDR. The pretext to intervene totally the communications of Aragonès is so far from reality (ERC separated it knowing any organization of the referendum to save him the risk of being charged) that, in the opinion of the Expresident accusation, he confirms that it was a “political espionage” motivated only by his independence ideas.
Waiting for the incidence of this new interpretation of the constitutional amnesty, all the causes in which Esteban is accused of espionage remain open, although they all accumulate delays in instruction.
Esteban has only appeared before the judge in the case of espionage to Aragonès, and shielded himself in the reservation duty of the CNI activities so as not to answer the questions of the parties. In the other two causes it is pending to be summoned again and that the Government withdraw the duty of reservation after agreeing its appearance months ago the audience of Barcelona.