Tuesday, July 5

And now what: the Supreme Court will liquidate the sentences of the pardoned prisoners and in a matter of days they will be free

The Council of Ministers approved this Tuesday the pardons to the nine independence leaders who are still imprisoned by the procés. Before his release from prison, a series of procedures are necessary that could delay his release from prison a few hours or days. The return to freedom of those sentenced by 1-O could catch them out of jail, taking into account that most of them will be on leave from this Wednesday afternoon, coinciding with the Sant Joan bridge, a holiday in Catalonia. It is therefore possible that there is no joint photograph of the pardoned leaving prison with the pardon under their arm.

The support of Congress, businessmen and unions guides the management of pardons from the Government

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The bureaucratic procedures begin after the approval in the Council of Ministers of the pardons in the form of royal decrees, which must be signed by the king and published in the Official State Gazette (BOE) predictably already this Wednesday. Once the pardons are published in the BOE, it is the turn of the Supreme Court. The law that regulates pardons, of 1870, establishes that “the application of grace must be inevitably entrusted to the sentencing court”, that is, the Criminal Chamber of the High Court.

In the case of the process, nine royal decrees will be published, one for each of the convicts who have sentences to serve: former vice president Oriol Junqueras, former councilors Dolors Bassa, Joaquim Forn, Raül Romeva, Josep Rull and Jordi Turull; the former president of the Parliament Carme Forcadell; the former leader of the ANC Jordi Sànchez and the president of Òmnium Cultural, Jordi Cuixart. The criminal responsibility of ex-councilors Carles Mundó, Meritxell Borràs and Santi Vila, convicted of disobedience, is now extinct.

In its resolution, which is expected to be practically immediate after publication in the BOE, the Chamber headed by Judge Manuel Marchena will make a new settlement of the sentence – that is, it will set the date of the definitive extinction of the different penalties imposed on each of the convicted – and will notify the prison surveillance courts of the release of the prisoners, which in turn will send them to the prisons of Lledoners, Wad-Ras and Puig de les Basses.

If they are on leave for Sant Joan – some will only spend the night of the festival, but others have asked for more days – the prisoners will have to go back to jail to sign their freedom and collect their personal belongings. If they are still in prison, the management of the center, after receiving the communication from the Supreme Court, will make each prisoner sign the release. The Minister of Justice, Lourdes Ciuró, visited the Lledoners prisoners this Monday afternoon and contacted the families of Bassa and Forcadell to explain the procedures to the prisoners first-hand.

In the event that the pardons are finalized while on leave, some of the prisoners will save themselves an uncomfortable photograph, that of their release from prison thanks to a government grace measure that they did not ask for. In fact, except for Jordi Cuixart, everyone was silent for an answer when the Supreme Court asked them their position on the matter a few weeks ago. The official commitment of the independence movement continues to be an amnesty with a difficult legal framework and parliamentary unfeasibility in Congress.

In legal circles close to the prisoners and to the Generalitat, they trust in a quick expression of the pardon and that they can now celebrate the Sant Joan festival in freedom, but above all caution is imposed. “In theory it should go fast, but experience with the Supreme Court tells us that everything can turn out the other way around than expected,” sums up a source. The scenario that the Supreme Court sleeps for a few days the process of liquidation of the sentence to postpone the release is not ruled out, although the aforementioned sources recall that it would go against the fundamental right to freedom.

The Criminal Chamber, which opposed the pardons for the lack of “repentance” of the independentistas in its mandatory but non-binding report, has no choice at this time than to abide by the Executive’s decision, say sources from the High Court. That Supreme Court report does close the door to a total pardon —which supposes the remission of all penalties not fulfilled—, since the law establishes that this modality will only be granted in the event of a favorable report from the sentencing court. Yes, there is the possibility of a partial pardon, which supposes the forgiveness of some or some of the penalties imposed, or of part of all still not fulfilled. The legislation establishes that the commutation of the sentence or penalties imposed in other less serious ones is also considered a partial pardon.

With the prisoners of the procés, the Government will choose to forgive the prison sentence and keep in force the disqualification from holding public office to which they were sentenced. In fact, more often than not, pardons condemn all pending prison sentences, and this is what will foreseeably happen on this occasion. However, there is also the possibility of forgiving only part of the sentence and leaving it below two years, a threshold that opens the door to suspension, although release would not be immediate and in that case the sentencing court would have the last word. Possible, although unlikely, it is also that the Government forgives the crime of sedition but not that of embezzlement, which would leave the calculation of the sentence of the four ex-councilors convicted of this crime in the hands of the Supreme Court (Oriol Junqueras, Raül Romeva, Dolors Bassa and Jordi Turull).

The resources of the right do not stop pardons

PP, Vox and Ciudadanos have already announced that they will appeal the decision to pardon the independence prisoners. They will have to do it before the Contentious-Administrative Chamber of the Supreme Court, since as it is an agreement of the Council of Ministers, this is the body to which judicial control corresponds. In any case, since the pardon is a “political act”, the High Court cannot make a jurisdictional review of the decision to pardon, but must limit itself to verifying whether the procedure – the so-called “regulated elements” – has been done correctly.

The hypothetical resources do not stop the execution of the pardons, explain sources from the Supreme Court. The only way that the appellants would have to avoid the release of the prisoners would be to request it through extremely precautionary measures that would force the Chamber to resolve within 48 hours and without listening to the other party – in this case, the Administration – if it paralyzes or not its execution until its decision on the merits of the appeal. The legal sources consulted see this paralysis as very unlikely considering that it is a measure of freedom and that even the Supreme Court has in the past questioned the legitimacy of the political parties to appeal this measure of grace.

After the process of the Supreme Court, the Constitutional path would also be open. In principle, they could file an appeal for protection alleging a possible violation of effective judicial protection by both the political parties, in the event that the Third Chamber rejected their claim to annul the pardons; such as the Government or the organizations that have requested the grace measure, if these were canceled. However, sources from the court of guarantees maintain that it is a future possibility and that we should first see in detail what the Supreme Court does and also who presents the appeals. For the filing of the amparo remedy, it is necessary to have exhausted the previous judicial remedy before, as well as to have invoked in it, as soon as possible, the violation of the fundamental right that it intends to enforce before the Constitutional Court.