The draft opinion of the Venice Commission on the proposed amnesty law for those accused of the process finds positive aspects in the norm, such as the objective of “political reconciliation”, but also warns of issues that should be reconsidered, such as regulating the measure of grace through a constitutional reform, and highlights important shortcomings. Among the main objections of the advisory body on constitutional issues of the Council of Europe is the decision to process the norm urgently and not require a qualified majority to move it forward. “A quick processing procedure is not appropriate” and “can damage the law,” they point out.
The report that has now been released is provisional and Commission sources warn that the final text, scheduled for March 15 or 16, will incorporate “many changes.” The opinion, prepared at the request of the Senate, where the PP has an absolute majority, has also been made on the initial version of the bill, which was already amended in several points during the first phase of processing in Congress and which is pending new changes with the agreement negotiated by the PSOE and Junts to try to guarantee a pardon for those prosecuted for terrorism.
These are the main conclusions of the experts who have examined the standard:
A law with “legitimate objectives.” The draft report maintains that “national and social unity,” as well as “political reconciliation,” are “legitimate objectives of amnesties.” The Commission is aware of the criticism that the amnesty law proposal was “part of a political agreement to achieve a majority” for Pedro Sánchez to be sworn in as president, something that has generated a “deep division” throughout society. Even so, “the institutional, political and social normalization of Catalonia is a legitimate objective,” he emphasizes and adds that it is not up to the Commission “to evaluate the proportionality of the amnesty law in relation to the proclaimed objectives.” That task, he notes, falls to the legislative power: “When deciding whether to adopt the amnesty law and with what content, Parliament will have to respond to the question of whether the normalization of Catalonia can be achieved despite the fact that the proposed law of amnesty has caused a deep and virulent division in the political class, in the institutions, in the judges, the academics and, above all, in Spanish society.
In its analysis, the Commission also recalls that, throughout history, amnesties have been approved in relation to “political events in a broad sense” in countries such as Belgium, Brazil, Bosnia-Herzegovina, Italy, Morocco and France. In the latter country, it points out that some of the amnesties approved were to resolve “political crises in overseas territories related to separatist demands in New Caledonia or Guadeloupe,” as well as “events of a political and social nature related to the establishment of the status of Corsica.” ”, a region long immersed in an independence dispute.
What affects the most is what happens closest. So you don’t miss anything, subscribe.
A common “instrument” to condone punishments. One of the first points addressed in the report is a comparative analysis of amnesty laws and other pardon measures among 54 of the 61 member countries of the Commission. They all have some type of “instrument to condone penalties, especially criminal ones, whether of a general or individual nature, as well as conditional or unconditional,” they point out. In most of the countries studied, amnesty is “explicitly” included in their constitutions. In another dozen, “they consider it acceptable for specific occasions.” Other Magna Cartas, such as the Spanish one, provide for a pardon (pardon), but not amnesty. In Spain, they highlight in this regard, general pardons are specifically prohibited by the Constitution.
In any case, amnesties must “comply with the Constitution” and their constitutionality must be controlled through the organizations and procedures provided for in the Magna Carta, they recall. That said, those responsible for the analysis emphasize on several occasions throughout the draft that the Venice Commission “is not competent to comment on the constitutionality” of the amnesty law that is being negotiated in Spain, because they consider that it is something that The Constitutional Court must ultimately decide and which in any case must be debated by Spanish constitutional experts.
A constitutional reform is “preferable.” The draft report alludes to the “vivid controversy” that has sparked in Spain the debate over whether or not the amnesty fits into the Constitution. For this reason, according to experts, it would be “preferable” that, “when the time comes,” this issue be regulated “explicitly through a constitutional amendment.” In the same way that they insist that they do not go into the constitutionality of the amnesty law, they add that they are not going to evaluate its “compatibility” with European law, something that, they estimate, “could be the subject of a ruling by the Court of Justice of the EU” (CJEU) once the law is approved.
Complies with the rule of law and the principles of equality before the law and separation of powers. The Commission openly expresses its “approval” of the fact that the bill does not cover acts that international jurisprudence considers should not fall under an amnesty. He also considers that it “correctly” preserves civil liability and points out that “there is no problem” regarding the separation of powers as long as the decision of which specific individuals will benefit from the amnesty is in the hands of the competent judge, something that is already provided for. the bill.
Criticisms of emergency processing. No matter how legitimate the reasons are for presenting such a law, what for the Venice Commission is not justified is that it has been processed by the emergency procedure: “A rapid processing procedure is not appropriate for the adoption of amnesty laws , in view of the far-reaching consequences of this type of law and the fact that amnesty laws are often of a controversial nature,” he maintains.
As he recalls, in general, a “rush can damage the quality of the law.” But in the case of the Spanish bill, such haste is especially dangerous in view of the “fierce criticism in Spain and beyond” that the regulations have provoked, especially in various bodies and associations of the judiciary. “Amnesties are generally motivated by reasons of social and political reconciliation,” “legitimate goals” that “require that they be obtained through methods and procedures consistent” with the final objective, “so as not to frustrate said objective,” the Commission warns. “The means and procedures designed to approve the amnesty should be inspired by inclusion, participation, an appropriate calendar and public discussions,” he recommends.
Precisely because of their potential “impact on social cohesion”, the Venice Commission also points out that amnesty laws “should be approved by an appropriate qualified majority” and not, as expected in the Spanish case, by an absolute majority.
Alerts to possible “arbitrariness”. One issue that experts warn about in the draft report is the danger that a law of this type could be arbitrary. In this regard, on several occasions, the Commission is emphatic that the criterion that governs the regulations must be that “it does not cover specific individuals,” since, remember, amnesties are “impersonal measures that apply to all people or certain individuals.” kinds of people.” The bill meets, in principle, this requirement because it amnesties all events linked to the consultation held in Catalonia on November 9, 2014 and the referendum of October 1, 2017, and related acts that had been committed between January 2012 and November 13, 2023.
The experts also emphasize the need for “consistency” in determining which actions are covered by the amnesty, with specific reference to the crimes of embezzlement and corruption, and consider that they must be “intrinsically related” to the “acts.” covered” by the standard. Socialist sources point out that this recommendation has already been fulfilled because, in the parliamentary process, the connection between the amnesty and the independence process has been “reinforced.” The law does not contemplate amnesty for any crime, whether embezzlement or any other type, that is not linked to the process. The embezzlement that the judges consider proven extends, among other aspects, to the expenses of organizing and carrying out the illegal 1-O referendum or the promotion of the independence challenge abroad.
The importance of clearly defining the scope of the law. Experts warn that the temporal and material scope of application of the amnesty is “broad and quite indefinite”, which may affect the legal certainty of the norm. They question that the law defines acts “by their intention” (for example, any act classified as a crime “intended to promote, support or facilitate the secession or independence of Catalonia”) and that it does not refer to “specific crimes identified by the criminal legislation.” In their opinion there are “open clauses” that “add vagueness”, which is why they recommend a “more precise” definition so “that the effects of the law are more predictable” and do not undermine “public confidence” in the norm.”
Judges “shall not” be summoned to investigative commissions. The Senate asked the Commission to also rule on an issue that is not included in the law, but has raised issues between the legislative and judicial branches: the possibility of subpoenaing judges to testify in investigative commissions in Congress. The PSOE rejects it and assures that they will not be called, but the pro-independence parties intend to do so. “To comply with the principles of separation of powers and independence of justice, the investigative commissions created by the Congress of Deputies should not be able to order judges to testify before them, particularly about the cases on which they have decided,” it states. the Commission. Without expressly mentioning it, they also allude to the possibility of studying cases of lawfare (judicial persecution for political purposes) that incorporated the investiture agreement between the PSOE and Junts. The report recalls that the body responsible for the disciplinary regime of judges is the General Council of the Judiciary (CGPJ) and considers that demanding that they come to testify, in public, about the way in which they have treated a specific case, represents a “ political interference in the administration of justice” that could have an “intimidating effect.”
to continue reading
_