The Venice Commission supports the possibility of an amnesty law like the one being processed in the Cortes, considering that “national unity and social and political reconciliation are legitimate objectives” of these grace measures that occur in the majority of countries, says the draft opinion of the legal body of the Council of Europe. However, the opinion warns against rushing the legislative process and therefore questions whether laws of this nature are processed urgently. Something counterproductive, he points out, both for procedural reasons and for the “deep and virulent” division that the proposed grace measure has created both among the political class and in other levels of Spanish society and that could, alert, jeopardize the objective. same of the social reconciliation that the law seeks. The Commission accepted a request from the Senate to prepare a legal advisory opinion on the norm, at the request of the PP Group, the majority in the Chamber.
The Popular Party had focused its expectations against the amnesty at the European level through this petition addressed to the Venice Commission, a consultative but non-executive body. The initiative thus sought to raise the debate on the pardon measure being processed in the Spanish Congress to the community institutions. In December, the Venice Commission accepted the request of the Senate, controlled by the PP, to analyze the law. And among its conclusions, the advisory body states: “Amnesties must pursue a legitimate objective in the interest of the community; the more radical the amnesties, the more legitimate the objective should be. National unity and social and political reconciliation are legitimate objectives of amnesties. In the opinion of the Commission [de Venecia], proportionality requires that, in each given case, the proposed amnesty is an appropriate means to ultimately achieve unity and reconciliation.” Reconciliation in Catalonia has been one of the main justifications for the bill promoted by the PSOE in the Cortes.
The Commission emphasizes that it has made its evaluations based on the version of the bill dated November 13, 2023 and that, therefore, it does not contain the latest amendments made since then. And it makes several recommendations: on the one hand, it proposes to “define the material and temporal scope” of the application of the amnesty in a “more precise” manner, with the objective, it emphasizes, of meeting one of the basic requirements of this type of measures of grace, its “predictability”. The Commission specifies that it does not assess whether or not the law complies with EU law and whether or not it is constitutional.
The Commission puts a but that affects the current procedure, which was adopted by the emergency procedure. An extreme that, without specifically mentioning the Spanish norm but general issues regarding the processing, the opinion censures: “Emergency procedures are not (…) appropriate for the adoption of amnesty laws, given the long-term consequences reach and the often compromising nature of those laws.” In the tense social and political climate in which this law is being processed, speed is even less advisable, the opinion adds. For this reason, experts propose that, in view of the “deep and virulent division between the political class, institutions, justice, experts and society” that the law has unleashed, the Spanish authorities take “the necessary time to “a meaningful dialogue in the spirit of loyal cooperation between institutions and between the majority and the opposition, to achieve social and political reconciliation,” in addition to considering “exploring restorative justice processes.”
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Also for the sake of the “impact on social cohesion” that an amnesty may have, the Commission further recommends that a law of this type be approved, whenever possible, by “an appropriate qualified majority” and that the criteria for applying it “not is designed to cover specific individuals.” In fact, to guarantee the separation of powers and judicial independence, it is considered that it is the judges who “should decide which specific individuals meet the general criteria determined by Parliament for the application of the amnesty.” As long as this happens, the Commission adds, “there is no problem of separation of powers,” it concludes in its response to the question posed by the Senate about whether the measures of the law can condition or restrict compliance with the rule of law by of the judges. The Spanish law proposal provides that, to become effective, it must be applied by each court that has already issued a sentence or that has opened a procedure affected by the grace measure.
In view of the compatibility with the rule of law of the application of the law for the crimes of embezzlement and corruption, it proposes that a “closer” causal link be ensured between the applicable periods of the regulations. “Consistency is needed in determining which acts are covered by the amnesty, which should be intrinsically linked, to avoid arbitrariness,” the opinion states. “Only a closer causal link between ‘the consultations held in Catalonia on November 9, 2014 and October 1, 2017, their preparations and consequences’ and certain acts of embezzlement and corruption could justify the application of the amnesty to the latter “, underlines the writing. A “broader, less precise” definition of such acts, he warns, “would make it difficult to reconcile them with the principle of equity of the law.”
In mid-December, the plenary session of the Venice Commission, a body dependent on the Council of Europe, an institution made up of 46 States of the continent, accepted the request of the Spanish Senate to issue a report giving its opinion on the bill being passed. processed in the Cortes to amnesty the crimes that could have been committed during the process To this end, the five signatories of the report say they have analyzed the situation in the other member countries, in the majority of which, they point out, the amnesty is “explicitly” included in their Constitution and, in cases where it is not already provided for , in more than a dozen other countries “they consider it acceptable for specific occasions.”
The Commission is cautious and indicates that it will not enter into the political discussion, and “in particular”, that it will not comment on “the convenience of the amnesty bill, nor on its suitability to achieve its declared objective, since these “They are political decisions that correspond to the Government and the Spanish Parliament.” Thus, the draft opinion appeals to the Cortes to decide “if the normalization of Catalonia can be achieved despite the fact that the amnesty bill has created a deep and virulent division in the political class, in the institutions, in power judicial, in the academy and, above all, in the society of Spain.” Although the Commission does not assess the constitutionality of the measure – as it assures that it is “a matter that ultimately falls to the Spanish Constitutional Court to decide, and which Spanish constitutional experts must debate” – it points out that since it is a issue that has generated “a lively controversy”, it would be “preferable” that it be regulated “explicitly through a constitutional amendment.” Nor does it assess whether the norm being debated in Spain is compatible with community law.
The Minister of Justice, Félix Bolaños, welcomed this Friday the draft of the Commission’s opinion. “We said it and now also the Venice Commission: amnesty is a tool for reconciliation. And it also complies with international standards [sic]. It is impeccable and it is positive. “We continue to move forward,” He published on his account on the social network X (formerly Twitter). The general secretary of the party, Cuca Gamarra, responded to him. by the same way: “They are desperate. That the government itself is dedicated to leaking a Venice Commission draft on the amnesty before its debate and approval shows the level of desperation in which it is installed. And they distort it to hide a setback.”
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