Miguel Ángel Revenga, professor of Constitutional Law at the University of Cádiz, estimates that the reference that has been introduced in the law to the European directive “in no case affects the scope of the Spanish Penal Code to delimit the scope of what is punishable.” Now, he warns that “contrasts and interpretative disagreements between jurisdictions could eventually occur.” Javier Tajadura, professor of the same specialty at the University of the Basque Country, in turn considers that the Penal Code “transposes the European directive.” Therefore, “there is no contradiction, they are similar.” And he adds that “the definition of terrorism in the Penal Code could not be different from that of the directive, because in that case it would be contrary to European law.” Tajadura specifies that “[el expresident de la Generalitat Carles] Puigdemont, to the extent that he is being investigated for terrorism that is foreseen in both the Penal Code and the directive, has no possibility of benefiting from the amnesty law”, which makes the amendment presented an “irrelevant” text. .
Fermín Morales, professor of criminal law at the Autonomous University of Barcelona, affirms that the Penal Code is not going to be ignored because it has not been repealed, because in criminal matters “there is no tacit repeal due to the principle of legality.” Therefore, there is no substantial divergence between the directive and the Penal Code on terrorism, so that the courts must apply the amnesty law and the Penal Code “both texts interpreted in accordance with the directive.” [europea de Terrorismo] of 2017″. Carlos Vidal, professor of constitutional law at the UNED, estimates that, as a result of the law, crimes such as membership in a terrorist group or links to its activities or public disorder or treason will be amnestied “through the revelation of information to a foreign power”, with the understanding that for all this “the reforms further distance the law from the law of the European Union itself and contradict some principles and precepts of the Constitution.”
For Araceli Mangas, professor of international and European law at the Complutense University, there is no contradiction between the Spanish Penal Code and the European directive. “No contradictions or gaps have been detected in Spanish law – the Penal Code – that develops the limited European criminal regulations,” she says. And she highlights that “a directive is only applicable through the national development or transposition standard.” In any case, for Mangas “the amnesty law is stated as an exceptional rule, and if it were declared constitutional, it would have preference over the ordinary criminal law.” And she specifies that the law should have “a careful justification” in accordance with the principle of “prohibition of arbitrariness”, which in her opinion does not occur in this case.
Xavier Arbós, professor of constitutional law at the University of Barcelona, is convinced that “the new law, which will be organic, like the Penal Code, will prevail because it will be a law subsequent to the code itself, and also because it will establish a special regime that acts as an exception to the general regime of the Penal Code.” For Arbós it is essential to understand that the amnesty law “sets the limits of application in a framework that is no longer the Penal Code, but the European directive.”
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On the other hand, criminal lawyer Gonzalo Quintero clarifies that European directives are “always directly applicable, except when it comes to criminal laws, in which case only those that have been transported through a national law can be applied.” And he adds that “outside of those cases they are invokeable for complementary interpretation, but they are not direct sources of law.”
For Alberto López Basaguren, professor of constitutional law at the University of the Basque Country, the main thing in the debate on the consequences of the amnesty law is to be clear that “it is not that Spanish judges are required to give precedence to the European directive.” against the Penal Code, which is not acceptable, but rather the law tells them how the crimes that are excluded from the amnesty are delimited.” Therefore, the reference to the European directive means that “it is said that what must be understood by the crime of terrorism for the purposes of the scope of application of the amnesty are not the crimes of terrorism as configured in the Spanish Penal Code, but, exclusively, in the area deduced from the directive.” And he emphasizes that “there is a game here that consists of making it clear to the EU that Union law will be respected.”
López Basaguren adds that the new additions to the amnesty law do not mean that judges, “when judging a crime, have to apply the Directive instead of the Penal Code,” since “they will apply the Penal Code, but to know if they will be Whether or not the amnesty applies, it will be necessary to adhere to the delimitation of the rights excluded or included in the amnesty that the law establishes.” And the law – he explains – “does so by reference to the Directive.” In short, López Basaguren’s thesis is that “there is a prevalence policy to the European Directive in the delimitation of terrorist crimes that are excluded from the amnesty”, understanding that “a prevalent application of a European Directive on the Penal Code is not established in the requirement of this type of criminal responsibility.”
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