The Venice Commission's draft opinion on the proposed amnesty law for those accused of litigation finds positive aspects in the norm, such as the goal of “political reconciliation”, but also warns about questions that should be reconsidered, such as the regulation of a certain degree of freedom through constitutional reform Grace and points out important defects. Among the main objections of the Council of Europe's Constitutional Advisory Body is the decision to deal with the norm urgently and not require a qualified majority to advance it. “A quick processing procedure is not appropriate” and “can harm the law,” they emphasize.
The report now published is preliminary and Commission sources warn that the final text, scheduled for March 15 or 16, will contain “many changes”. The opinion, drawn up at the request of the Senate, in which the PP has an absolute majority, was also made on the original version of the bill, which was already amended on several points in the first phase of processing in Congress and is still pending new changes with that of PSOE and Junts negotiated agreement to ensure pardons for those prosecuted for terrorism.
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These are the main conclusions of the experts who studied the standard:
A law with “legitimate aims”. The draft report states that “national and social unity” and “political reconciliation” are “legitimate goals of amnesties.” The Commission is aware of criticism that the amnesty law proposal was “part of a political agreement to achieve a majority” for the swearing-in of Pedro Sánchez as president, which has created a “deep division” throughout society. Nevertheless, “the institutional, political and social normalization of Catalonia is a legitimate objective,” he emphasizes, adding that it is not the Commission's task to “assess the proportionality of the amnesty law in relation to the stated objectives.” In his opinion, this task lies with the legislative power: “When deciding whether and with what content the amnesty law should be adopted, Parliament must answer the question of whether the normalization of Catalonia is possible despite the fact that the proposed law is in place , can be achieved.” The amnesty has led to a deep and violent division in the political class, in the institutions, among the judges, the academics and, above all, in Spanish society.
In its analysis, the Commission also recalls that throughout history, amnesties related to “political events in the broadest sense” have been approved in countries such as Belgium, Brazil, Bosnia-Herzegovina, Italy, Morocco and France. In the latter country, it is noted that some of the approved amnesties were intended 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 , which was mired in an independence struggle for a long time.
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A common “instrument” to tolerate punishment. One of the first points raised in the report is a comparative analysis of amnesty laws and other pardon measures in 54 of the Commission's 61 member countries. They all have some kind of “instrument for tolerating punishments, especially of a criminal nature, whether general or individual, as well as conditional or unconditional,” they emphasize. In most of the countries examined, amnesty is “explicitly” anchored in the constitution. In another dozen, “they consider it acceptable for certain occasions.” Other Magna Cartas, such as the Spanish one, provide for a pardon but not an amnesty. In this context, they emphasize that in Spain general pardons are expressly prohibited in the constitution.
In any case, amnesties must be “in accordance with the Constitution” and their constitutionality monitored through the organizations and procedures provided for in Magna Carta, they remind. However, those responsible for the analysis emphasize several times throughout the draft that the Venice Commission “does not have the authority to comment on the constitutionality” of the amnesty law negotiated in Spain because they consider that it is something unconstitutional that the court must ultimately decide on this and must in any case be discussed by Spanish constitutional experts.
Constitutional reform is “preferable”. The draft report alludes to the “lively controversy” that has sparked debate in Spain about whether the amnesty fits into the constitution or not. For this reason, according to experts, it would be “preferable” if this issue were “explicitly regulated by a constitutional amendment” “in due course.” Just as they insist that they will not address the constitutionality of the amnesty law, they add that they will not assess its “compatibility” with European law, something that they estimate could be “the subject of a…” decision by the Court of the European Union” (ECJ) as soon as the law is passed.
Adheres to the rule of law and the principles of equality before the law and separation of powers. The Commission openly expresses its “agreement” that the draft law does not cover acts that, according to international jurisprudence, should not be covered by an amnesty. He also considers that civil liability is “correctly” protected and points out that there is “no problem” with regard to the separation of powers, as long as the decision as to which specific persons benefit from the amnesty is in the hands of the competent person Richter's decision. This is already planned. The bill.
Criticisms of emergency processing. However legitimate the reasons for presenting such a law may be, what is not justified for the Venice Commission is that it was processed in an expedited manner: “A rapid processing procedure is not appropriate for the adoption of amnesty laws.” “The far-reaching Consequences of such laws and the fact that amnesty laws are often controversial,” he emphasizes.
He recalls that “a rush can affect the quality of the law.” But in the case of the Spanish bill, such haste is particularly dangerous given the “strong criticism in Spain and beyond” that the regulations have provoked, particularly in various judicial bodies and associations. “Amnesties are generally motivated by reasons of social and political reconciliation,” “legitimate goals,” which “require that they be achieved through methods and procedures consistent with the ultimate goal, “so as not to frustrate that goal.” warns the Commission. “The means and procedures for approving amnesty should be based on inclusion, participation, appropriate timing 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 adopted with an appropriate qualified majority” and not with an absolute majority, as expected in the Spanish case.
Warns of possible “arbitrariness”. One problem that experts warn about in the draft report is the risk that a law of this type could be arbitrary. In this context, the Commission emphasizes several times that the criterion governing the rules must be that “they do not apply to specific persons”, since amnesties are “impersonal measures that apply to all persons or to certain persons “. Types of people.” The draft law meets this requirement in principle, since it covers all the events related to the consultation in Catalonia of November 9, 2014 and the referendum of October 1, 2017, as well as related actions, that took place between January 2012 and November 13 committed in 2023 were amnestied.
The experts also emphasize the need for “consistency” in determining which acts are covered by the amnesty, particularly with regard to the crimes of embezzlement and corruption, and consider that these are “inextricably linked to the acts covered by the amnesty”. must be The standard. Socialist sources indicate that this recommendation has already been fulfilled, as the parliamentary process has “strengthened” the connection between the amnesty and the independence process. The law does not provide for amnesty for crimes, be they embezzlement or other types, unrelated to the proceedings. The embezzlements considered proven by the judges include, among other things, the costs of organizing and carrying out the illegal 1-O referendum or promoting independence efforts abroad.
It is important to clearly define the scope of the law. Experts warn that the temporal and material scope of the amnesty is “broad and quite indefinite,” which could affect the legal certainty of the norm. They question that the law defines acts “according to their intent” (e.g. any act classified as a criminal offense “intended to promote, support or facilitate the secession or independence of Catalonia”) and that it does not apply to “specific crimes relates to which were determined by…”. the criminal law.” In their opinion, there are “open clauses” that “increase ambiguity,” which is why they recommend a “more precise” definition so that “the effects of the law are more predictable” and do not undermine “public trust” in the norm becomes .”
Judges “may not” be appointed to commissions of inquiry. The Senate asked the commission to also decide on an issue that is not included in the law but has raised problems between the legislative and judicial branches: the possibility of subpoenaing judges to testify in congressional investigative commissions. The PSOE rejects this and assures that they will not be called, but the pro-independence parties intend to do so. “In order to comply with the principles of the separation of powers and the independence of the judiciary, the investigative commissions established by the House of Representatives should not be able to order judges to testify before them, in particular on the cases on which they have decided,” it says. the commission. Without explicitly mentioning it, they also point to the possibility of investigating lawfare cases (legal prosecution for political reasons) in Congress, which were included in the investiture agreement between the PSOE and the Junts. The report recalls that the body responsible for disciplining judges is the General Council of the Judiciary (CGPJ) and considers that requiring them to testify publicly about the way they handled a particular case is said to be a problem of “political interference in the administration of justice” which could have an “intimidating effect”.
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