The 'trap' article of the amnesty law that limits the interpretation of judges

• Demonstration against the amnesty law in Madrid this Saturday, November 18, live: what time is it, protests and traffic cuts

Article 2 of the amnesty law is in principle presented as the red line that the PSOE has marked for the independence movement. Under the title of “exclusions”, it includes the facts that will not be able to benefit from the amnesty, the crimes that are unforgivable: terrorism, torture, treason…. Its wording suggests that the socialists have remained firm on some ends of the negotiation, but when putting these “exclusions” into practice, a complete work of legal engineering is glimpsed: article 2 does not harm the leaders of the process, but it limits the interpretation that judges can make.

A copy of the Penal Code

In article 2, both the words that are included and those that are omitted matter.. Its objective is reflected in section F, which copies another article of the Penal Code, except for one small difference: the PSOE has eliminated its references to the “nation” and “ideology.”. In this way, the final wording implies excluding the following facts from the amnesty: “Crimes in the execution of which racist, anti-Semitic, anti-gypsy motivations or other types of discrimination regarding the religion and beliefs of the victim, their ethnicity or race would have been appreciated.” , your sex, age, sexual or gender orientation or identity, reasons of gender, aporophobia or social exclusion, the illness you suffer from or your disability”.

At first glance, it seems that the PSOE and its partners have been concerned about leaving this type of discriminatory acts out of the amnesty, but doubts arise when comparing it with the aggravating factors of criminal responsibility included in article 22.4 Penal Code: “Committing the crime for racist, anti-Semitic, anti-gypsy reasons or other type of discrimination referring to the ideology, religion or beliefs of the victim, the ethnicity, race or nation to which they belong, their sex, age, sexual or gender orientation or identity, reasons gender, aporophobia or social exclusion, the illness they suffer from or their disability”.

The rewriting is not accidental. By excluding discrimination “referring to ideology” and “nation”, the PSOE tries to shield the independence movement from accusations such as the one made by Vox in the procés trial, when it tried to aggravate the sentences, pointing to the aforementioned 22.4 of the Penal Code.. It is not, therefore, about the words that the law contains, but also about the message it sends with those it erases: judges can object if they see discrimination against gypsies, the poor and the disabled – which in practice has no effect on the causes of the process—, but in no case before attacks for reasons of ideology and nationality.

In fact, in the PSOE they know well the article of the Penal Code that they have copied. Since Pedro Sánchez arrived at Moncloa, the Government has reformed it twice: in 2021, when it included the concepts of “age”, “aporophobia” and “social exclusion”, and in 2022, when it added the concept of “anti-gypsies”.

A lifeline for Puigdemont

Time and time again, Article 2 makes it clear to judges what is left out of the amnesty so that they are even clearer about what is included.. The strategy is repeated in section C, which excludes “acts classified as terrorist crimes”. The National Court investigates this type of crimes in two proceedings linked to the independence movement: the one against 12 members of the CDR and the Tsunami Democràtic, in which the former Catalan president Carles Puigdemont and the general secretary of ERC, Marta, are listed as defendants. Rovira, among others.

The exclusion of terrorism crimes would in principle leave both procedures out of the amnesty, but the PSOE and its partners avoid that scenario by adding seven words below: “As long as a final sentence has been handed down”. Neither the proceedings against the CDR nor that of Tsunami have even reached trial, so, in practice, this supposed promise to leave out “terrorism crimes” has no effect whatsoever..

Section A also includes another paragraph that affects one of the lines of investigation into the cause of the Tsunami: the possible link between the death of a French citizen due to a heart attack and the blockade of the El Prat airport.. His death threatened to complicate the amnesty for those investigated in Tsunami, but the law includes another “exclusion” that would block that effect: “Wilful acts against people that would have resulted in death.”.

Fraud refers to the deliberate will to commit a crime knowing that it is illegal.. In this specific case, it would imply demonstrating that those investigated by Tsunami carried out the blockade of the airport with full knowledge and willingness to cause the death of this citizen, so, indirectly, this exclusion of “willful acts” would also benefit to Puigdemont and Rovira.

A risk for 45 police officers

The writing of this article reaches such a point that the only ones who in principle run the risk of not being able to benefit from the amnesty are the 45 agents whom the Investigative Court number 7 of Barcelona prosecuted last January: “[The facts] “can constitute not only minor or less serious crimes of injury, but also crimes as provided for in articles 174 and 175 of the Penal Code,” the judge warned in his resolution..

Article 174 is the one related to torture and the “exclusions” in section B point directly to this type of acts “as long as they exceed a minimum threshold of seriousness”. The text does not specify in any case what the yardstick will be: unlike what happens with acts of terrorism, to exclude crimes of torture it does not include a requirement as categorical as that “a final sentence has been handed down.”.

A shield against the EU

Sections D and E of Article 2 also draw a similar conclusion: “Crimes that affect the financial interests of the European Union,” warns the first. Throughout 23 pages, the bill makes no mention of Spain's financial interests, but with this reference, it anticipates the debate that is taking place in Brussels to assure the European authorities that, as far as they are concerned regards, you have nothing to worry about.

The last exclusion once again refers to facts that do not contemplate any cause linked to the independence movement, but, at least in this case, the PSOE does seem to row only in its favor.. “Crimes of treason and against the peace or independence of the State and related to National Defense”, establishes section D. This paragraph allows the socialists to highlight the supposed red line that they have marked for the independence movement and, at the same time, warns them not to go over the line when seeking support from foreign powers.. From now on, you can only negotiate with them.