Amnesty for the Catalan independence movement - UK in a changing Europe (2024)

DATE

31 May 2024

AUTHORS

THEME

Constitution and governance

Europe

Josep M. Tirapu-Sanuy unpacks Spain’s recently passed ‘Amnesty Act’ for those involved in the Catalan independence ‘process’. He sets out three different perspectives on the amnesty, and argues that while the law may have smoothed relations for now the underlying constitutional conflict remains unaddressed.

On 30 May 2024, the Spanish Parliament passed an Act granting an amnesty for acts related to the so-called Catalan independence ‘process’ – the period in Catalan politics starting in 2012 marked by conflict between Catalan and Spanish institutions over the possibility of holding an independence referendum for Catalonia.

First some background. The Spanish government, led by the conservative Partido Popular (PP), maintained that a vote on independence would be unconstitutional, a position endorsed by the Spanish Constitutional Court. The Catalan government, backed by a pro-independence majority in the Catalan Parliament, argued that Catalonia has a ‘right to decide’ its political status, and that the Constitution could be interpreted compatibly with that aspiration.

This conflict ultimately came back to different fundamental visions of Spain: while the position of the Spanish government relied on a vision of the country as constituted of a single Spanish nation, Catalan institutions had traditionally endorsed a plurinational understanding of Spain.

After years of failed negotiation attempts, the Catalan government decided to proceed unilaterally and called for an independence referendum in 2017. The referendum resulted in the imprisonment and conviction of part of the Catalan government by the Spanish Supreme Court on charges of sedition, disobedience and embezzlement, as well as some Catalan ministers and politicians going into exile in various European countries. While the jailed leaders were pardoned and released from prison in 2021, some of them are still disqualified from public office and therefore unable to run in elections, and some remain in exile.

The amnesty is the result of an agreement between the Spanish Socialist Party (PSOE) and the main Catalan pro-secession parties – ‘Junts per Catalunya’ and ‘Esquerra Republicana’ – which secured the re-election of PSOE leader Pedro Sánchez as Spanish Prime Minister in November 2023. The Amnesty Act will remove the criminal, administrative and accounting liability for acts related to the 2017 referendum, but not only that: its scope includes a variety of acts, including those ‘committed with the intention of claiming, promoting or procuring’ the independence of Catalonia in a period covering the whole independence process, from 2011 to 2023.

Given this, the Amnesty Act will stop a large number of judicial proceedings – 372 cases, according to the Spanish government – affecting a variety of persons, including civil servants, mayors, and activists. It will also terminate the criticised prosecution on charges of terrorism initiated against various Catalan political and civil society leaders for the organisation of protests attended by many in 2019.

In sum, the amnesty will not only benefit the small group of leaders that led the 2017 referendum; its aim is arguably broader: it addresses the criminalisation of the pro-independence political movement as a whole.

Three different perspectives on the Amnesty Act can be distinguished. First, the main opposition parties in the Spanish Parliament, PP – who were in government during the 2017 referendum – and the far right VOX, see the amnesty as an attack against the principle of separation of powers, arguing that it represents an unwarranted intervention by the legislature in decisions taken by independent judges. This concern has also been voiced by high-ranking judges.

Additionally, the amnesty is seen as a breach of the right to equality enshrined in the Constitution, since it entails treating a certain group of persons differently than others – individuals convicted for the same offences for acts unrelated to the independence conflict will not benefit from the amnesty.

Whether the Amnesty Act is compatible with the Constitution will be ultimately decided by the Spanish Constitutional Court. Comparative evidence indicates that amnesties are used or present in the legal systems of numerous countries, as the Venice Commission has shown, suggesting that there is nothing necessarily problematic about the use of amnesties per se.

The compatibility of the Spanish amnesty with the principle of separation of powers and with the right to equality will depend on an assessment of the specific provisions of the Act, as well as of the underlying constitutional conflict which the amnesty seeks to address.

A second view, adopted by the Catalan pro-independence parties, sees the amnesty as a measure to redress a violation of rights caused by the prosecution and imprisonment of Catalan politicians and civil society leaders after the 2017 independence referendum. This view can be seen as supported by statements of several international organisations and bodies – such as Amnesty International, the International Commission of Jurists, the Parliamentary Assembly of the Council of Europe, the UN Human Rights Council, or the UN Working Group on Arbitrary Detention – raising concerns regarding those court cases, especially in relation to the rights to freedom of expression and freedom of assembly. Accordingly, the amnesty would be a reparation, rather than a violation, of human rights.

Secessionist parties also see the amnesty as part of a wider negotiation process under which they aim to achieve an agreed referendum on Catalan independence. From this perspective, the criminalisation of the Catalan independence movement has represented an obstacle for the development of a fair and fruitful dialogue between Catalan and Spanish institutions. The amnesty brings the conflict from the courts back to politics, paving the way for a negotiation on the exercise of Catalan self-determination.

A third view is supported by PSOE, the main party in the Spanish government, which sees the amnesty as a pragmatic instrument for the ‘normalisation’ of the political situation in Catalonia. Prime Minister Pedro Sánchez defended the amnesty as promoting ‘dialogue, understanding and forgiveness,’ but insisted than an independence referendum is nevertheless out of the question.

Therefore, the amnesty is seen by PSOE as an act of mercy which strengthens, rather than weakens, the unity of Spain. This view is reflected in title of the Act passed by the Spanish Parliament – ‘Amnesty Act for Institutional, Political and Social Normalisation in Catalonia’ – as well as in its preamble, which justifies the measure on ‘the need to overcome the situation of high political tension that Catalan society has experienced.’

The results of the Catalan election of 12 May 2024, marked by a surge of the Catalan branch of PSOE and a decline of the secessionist parties, confirm that the amnesty has smoothed the relations between the Catalan and Spanish institutions.

However, the amnesty has not tackled the root causes of the political conflict, concerning the constitutional status of Catalonia as a minority nation and the possibility of its secession. The prosecution of political leaders and the judicialisation of politics are more of a symptom, rather than a cause, of this conflict. Without addressing the underlying constitutional conflict, tensions may be reduced now, but the conflict may come back to surface in the future.

By Josep M. Tirapu-Sanuy, PhD candidate in Law, University of Cambridge.