Puigdemont cools the possibility of returning before the general elections

The publication of a ruling by the Constitutional Court (TC) in the Official State Gazette (BOE) does not follow a parliamentary procedure in the strict sense: the General Courts do not intervene in deciding or processing that publication. It is a constitutional and institutional channel that runs between the Constitutional Court itself, the Government (Ministry of the Presidency), and the State Agency BOE.

1. Constitutional and legal basis for publication

The obligation to publish TC rulings in the BOE is supported by three normative pillars:

• Spanish Constitution, Article 164: establishes that the rulings of the Constitutional Court shall be published in the BOE, including any dissenting opinions that may be formulated. This guarantees their publicity and general knowledge.
• Organic Law 2/1979, of the Constitutional Court (LOTC):
  • A provision of the LOTC indicates that rulings in unconstitutionality procedures “shall produce general effects from the date of their publication in the Official State Gazette,” making publication a key requirement for erga omnes effectiveness.
  • Another provision states that rulings and declarations referred to in Title VI “shall be published in the Official State Gazette within 30 days following the date of the judgment” and that the Court may also order the publication of orders. Dissenting opinions are published together with the ruling.
• Royal Decree 181/2008, regulating the BOE:
  • Establishes a “section of the Constitutional Court” within the BOE, in which “the rulings, declarations, and orders of the Constitutional Court shall be published, under the terms provided in its organic law.”
  • Regulates how originals are sent and how the insertion is materially ordered.

Additionally, Law 50/1997, of the Government, assigns to the Government Secretariat (in the Ministry of the Presidency) the function of “ensuring the correct and faithful publication of the provisions and norms issued by the Government that must be inserted in the Official State Gazette,” and, by reference to Royal Decree 181/2008, it also acts as the gateway for the Constitutional Court texts towards the BOE.

2. Do the General Courts intervene?

There is no specific parliamentary procedure to publish TC rulings in the BOE:

• The Congress and the Senate may receive communication of certain TC decisions (for example, admission of unconstitutionality questions), but do not approve or order the publication of the rulings.
• There is no “consideration,” report, or agreement of the Plenary or the Board of either Chamber for a TC ruling to appear in the BOE.
• Therefore, the role of the Courts at this point is as an institutional recipient of the ruling (for their knowledge and, if applicable, to adapt legislation), but they are not part of the publication circuit.

3. Actual institutional channel: from the TC to the BOE

The effective procedure can be summarized as follows:

• a) Deliberation and ruling in the Constitutional Court
  The Plenary or the corresponding Chamber of the TC issues the ruling, which is formalized with its reasoning and, if applicable, with the dissenting opinions of the dissenting magistrates.
• b) Preparation of the text for publication
  The General Secretariat of the Constitutional Court prepares the official text intended for publication: heading, background, legal grounds, ruling, and dissenting opinions. By virtue of the LOTC, the Court itself orders its publication in the BOE within 30 days from the ruling.
• c) Sending to the Government and the State Agency BOE
  According to Royal Decree 181/2008:
  • The originals that must appear in the section of the Constitutional Court of the BOE are sent electronically to the Technical General Secretariat–Government Secretariat of the Ministry of the Presidency.
  • This body verifies the authenticity of the signatures, classifies the document, verifies that it is a resolution of mandatory insertion, and coordinates its sending to the State Agency Official State Gazette.
• d) Insertion in the BOE
  The State Agency BOE inserts the ruling:
  • In the section of the Constitutional Court of the official journal.
  • In full text (not in excerpt), together with dissenting opinions.
  • Respecting the formal requirements and order of publication established by the LOTC, Royal Decree 181/2008, and the instructions of the Ministry of the Presidency.
• e) Effects of the publication
  From that date, according to the LOTC, the ruling:
  • Produces general effects against all public authorities.
  • In case of declaration of unconstitutionality, determines the nullity of the affected provisions.

In summary: the publication of Constitutional Court rulings in the BOE is a constitutionally mandatory procedure, managed between the Court itself, the Ministry of the Presidency (Technical General Secretariat–Government Secretariat), and the State Agency BOE, without decisive intervention by the General Courts. It does not respond to a classic “parliamentary procedure,” but to an institutional procedure of execution and publicity of the Constitutional Court’s decisions.

The President of the Supreme Court plays a relevant role in the internal organization of the high court, but his powers in the application of rulings related to the Amnesty Law are fundamentally governance and organizational, not jurisdictional. That is, he does not decide how the amnesty is applied in each specific case nor can he impose a legal criterion on the Chambers or magistrates handling the proceedings.

1. Who actually applies the Amnesty Law

Organic Law 1/2024 establishes that amnesty is applied through a resolution of the competent judicial body. That competence corresponds to:

• The judge or court that investigates or tries the case, if the procedure is ongoing.
• The Chamber or court that issued the ruling, if it is a matter of reviewing or executing a final judgment.

In the case of the procés, for example, the application of amnesty to persons such as Carles Puigdemont or Meritxell Serret falls to the investigating magistrate or the Criminal Chamber of the Supreme Court, who must issue reasoned orders or rulings declaring, if applicable, the extinction of criminal liability or dismissal. The President of the Supreme Court does not sign those resolutions nor can he replace the competent court.

2. Internal powers of the President of the Supreme Court

According to the Organic Law of the Judiciary and the internal regulations of the Supreme Court, the President mainly exercises internal governance functions:

• Calls, presides over, and directs the Governing Chamber of the Supreme Court.
• Ensures the legal composition of the Chambers and Sections.
• Promotes and applies, together with the Governing Chamber, the rules for the distribution of cases among Chambers and Sections.
• Can adopt urgent organizational measures (for example, reinforcements, accumulations, scheduling criteria), reporting afterwards to the Governing Chamber.
• Supervises the administrative functioning of the Court and compliance with the Governing Chamber’s agreements.

These powers allow him to organize how the numerous matters linked to amnesty are managed (order of resolution, workload distribution, shifts, etc.), but do not authorize him to decide the content of the resolutions.

3. Distribution of cases and appointment of rapporteurs

The rules for distribution among Sections and the appointment of rapporteurs are established through general, objective, and prior rules, approved by the Governing Chamber of the Supreme Court. The President:

• Can propose and execute those distribution rules.
• Can promote organizational adjustments (for example, concentrating certain issues in one Section) if agreed by the Governing Chamber.

What he cannot do is create ad hoc distributions to favor or harm certain parties nor impose who must be the rapporteur of a specific amnesty case outside the approved rules. The appointment of rapporteur follows established criteria and substitution is only possible for justified reasons. He also cannot issue instructions to the rapporteur about the content of the resolution.

4. Prohibition of jurisdictional instructions

By the principle of judicial independence, the President of the Supreme Court cannot give orders or legal guidelines on:

• Whether a specific fact falls within the material or temporal scope of the Amnesty Law.
• Whether any exclusion cause applies (for example, certain types of terrorism or embezzlement).
• Whether precautionary measures should be lifted, records canceled, or liability declared extinguished.

Any criterion on these points must be reflected in orders or rulings of the Chamber or competent magistrate, with hearing of the parties and possibility of appeal. The President is not a legal review instance above the Chambers.

5. Relationship with the CGPJ

The position of President of the Supreme Court is associated with that of President of the General Council of the Judiciary (CGPJ). From that second role:

• He presides over the Plenary and the Permanent Commission of the CGPJ.
• Can promote agreements on personnel and material resources, workloads, or organizational needs arising from the “peak” of cases due to amnesty.

However, neither the CGPJ nor its President can order courts how to interpret the amnesty nor revoke or modify their rulings. The Supreme Court’s own jurisprudence has emphasized that the Council lacks powers to review criminal rulings or decide the content of judgments.

6. In practice, what can and cannot he do?

• He can reorganize shifts, reinforce Chambers, prioritize types of cases, or promote homogeneous criteria for material processing (registration, accumulation, scheduling deadlines).
• He cannot decide to grant or deny amnesty in a specific case, change the content of a rapporteur’s opinion, or veto a legal criterion adopted by a Chamber.

In summary, the President of the Supreme Court is key to ensuring that the Court is able to apply the Amnesty Law in an orderly and effective manner, but the decision to grant or deny amnesty in each proceeding corresponds exclusively to the competent jurisdictional bodies.

In Spain, a European Arrest Warrant (EAW or euroorder) can only be “lifted” or rendered ineffective by decision of the Spanish judicial authority that issued it. There is no automatic administrative procedure: there must be a judicial resolution ordering its withdrawal or substitution, in accordance with Framework Decision 2002/584/JHA and the Spanish law on mutual recognition of criminal decisions among EU Member States.

Material (substantive) grounds for withdrawing a euroorder

Usually, the euroorder is rendered ineffective because the criminal basis justifying it disappears. Typical causes include:

• Filing or dismissal of the case: if the investigating judge orders definitive filing or dismissal, it no longer makes sense to keep the euroorder active. The resolution that archives the case usually also orders the revocation of associated arrest warrants.
• Final acquittal: if the procedure ends with a final acquittal ruling regarding the facts for which the surrender was requested, the euroorder must be withdrawn.
• Statute of limitations of the crime or penalty: if the crime has prescribed or, at the execution phase, the penalty has prescribed, criminal liability is extinguished and the euroorder no longer has grounds.
• Full completion of the sentence: if the requested person has already fully served the sentence whose execution motivated the euroorder, it should be rendered ineffective.
• Amnesty, pardon, or other causes extinguishing criminal liability: if an amnesty, pardon, or other legal cause eliminates the penalty or crime, the judicial authority must revoke the euroorder.
• Change in classification or procedural situation: if the procedure’s evolution leads to a classification or penalty request that no longer fits the euroorder’s requirements (for example, insufficient maximum penalty in certain cases), the judge may consider that maintaining the EAW is unjustified.

Procedural or formal grounds

Alongside substantive reasons, there are cases where the euroorder is withdrawn for procedural or cooperation technique reasons:

• Express withdrawal by the issuing judicial authority: the judge or court that issued it may decide at any time to render it ineffective, for example if opting for other cooperation mechanisms (letters rogatory, videoconference, etc.) or considering it no longer proportionate.
• Correction by issuing a new EAW: if the euroorder has significant formal defects (incomplete data, errors in identity, description of facts, etc.), the judge may revoke it and issue a new one complying with legal requirements, leaving the previous one ineffective.
• Incompatibility with other procedures: sometimes coordination with other Member States or international justice bodies leads to withdrawing an EAW to prioritize another procedure (for example, surrender to a third European State that already has the person detained for a more serious cause).

Role of the authorities involved

• Investigating judge or sentencing court in Spain: is the issuing judicial authority. Only it can decide to issue, maintain, modify, or revoke the euroorder. It does so by reasoned order or resolution, usually on its own initiative or at the request of the Public Prosecutor or the defense.
• Public Prosecutor: drives the procedure, informs on the necessity or proportionality of the EAW, can request its issuance or withdrawal, and appeals resolutions it considers incorrect. It does not “lift” it by itself, but its position is influential.
• Judicial authority of execution in the other Member State: its function is to decide whether to execute the euroorder. If Spain withdraws it, that authority must end the surrender procedure. It cannot keep an EAW alive that the issuing State has already rendered ineffective, although it can refuse its execution if it finds grounds for denial, without that automatically obliging Spain to withdraw it (this depends on the Spanish judge’s assessment).

Relation with internal and international orders

The EAW is usually based on an internal arrest warrant issued by the Spanish judge. If that national order is revoked (for example, replaced by a summons or another non-custodial measure), it is coherent to also revoke the euroorder.

In parallel, there may be police alerts (SIS) or Interpol notices based on the same judicial resolution. When the Spanish judge renders the euroorder or the supporting arrest warrant ineffective, it must be communicated to the competent authorities to cancel alerts and avoid improper arrests in other countries.

Basic regulatory framework

This whole scheme is supported, at the European level, by Framework Decision 2002/584/JHA, which regulates the issuance, content, and withdrawal of European arrest warrants, and at the national level by the Spanish law on mutual recognition of criminal decisions in the EU, which specifies which Spanish judicial bodies can issue an EAW, its formal requirements, proportionality control, and the possibility of revoking it when the conditions justifying it disappear.