With the swearing in of Pedro Sánchez as President of the Government, one of the first obligations that the new Council of Ministers will have to fulfill will be the drafting of the future amnesty law, a key element in the negotiations with the Catalan independence forces. The parliamentary initiative now faces a path that could take months and includes both its processing in the Cortes and its subsequent application in the courts that have heard cases related to the trial, marked by the predictable appeals to the Constitutional Court trials You, to delay the passage of the law or to stop its effect after passage. Although the bill gives courts two months to apply it, parliamentary processing and possible appeals to the Constitutional Court will make it difficult for the regulation to become fully effective before a year.
The PSOE took the first step of the clemency measure last Monday when its group registered the bill alone and as an emergency matter in Congress. A qualification that shortens parliamentary deadlines by half. The second will take place next week, when the House of Commons table receives the text for adoption after it has been examined by the lawyers of the Cortes. At this point, the PP can file an appeal with the Constitutional Court to try to prevent the board from adopting the bill and stop it. However, it can only put the processing process on hold if the People’s Party applies for security measures and the Guarantee Court grants them, an unlikely option.
The Constitutional Court set a precedent last year when it stopped parliamentary processing of the law reform that cleared its own renewal. However, lawyers interviewed recall that in this case the processing of two amendments that the executive had taken over as an emergency procedure was paralyzed, to a bill on a different matter. The PP claimed that this procedure violated the right of citizens to participate in public affairs through their representatives – the deputies – a right protected by Article 23.2 of the Constitution. “This precedent was already strange, although there was a basis. But in the case of amnesty, I don’t know on what legal basis the parliamentary processing of a bill submitted by one or more parliamentary groups can be stopped,” says a lawyer interviewed. The progressive justices vehemently opposed this stay, but were in the minority at the time. After the last renewal they are in the majority and it is assumed that a similar precautionary measure would not be successful.
But for the people’s representatives, the law is unconstitutional and they will try every means possible to ensure that it is not implemented. “We will analyze every way to stop the law. There will not be a single step that we can take that we will not take again,” warn sources in the PP leadership. The appeal to the Constitutional Court could be made both when the norm is on the table next week and at any other stage of the parliamentary process. But if the Guarantee Court initially ruled unfavorably for the PP, the people’s representatives admit that it would make little sense to seek a similar decision later, unless there is a change in the rule or in its processing that would force them to do so would cause me to give in I’ll challenge it again. The popular can also try to find a loophole to get access to the European justice system.
“We still don’t know the amnesty law in its entirety. We know the socialist part. We don’t know Junts’ amendments, we don’t know Esquerra’s amendments and we don’t know Bildu’s. “First we will look at the entire law and see what processing follows,” said Esteban González Pons, deputy general secretary of the party, this Thursday in the halls of Congress. In the event that such an appeal is not made or, as predictably, the Constitutional Court decides to continue the proceedings, the body’s progressive majority will push for the norm to be advanced further and a day will be set for full debate the consideration of the law, i.e. so that the processing continues. This procedure requires an absolute majority – since it is an organic law – and this vote is likely to take place with 178 supporters: those of PSOE, Sumar, ERC, Junts, PNV, Bildu and BNG.
After this step, the political groups can table amendments. Normally a deadline of 15 days is set, but for reasons of urgency this deadline may be reduced by half. This is followed by a presentation and commissioning in the Congeso. All of these steps normally take at least a month, but the time may be longer if it coincides with January, which is a non-working day, although the Board may make acceleration feasible. There will be a final filter, namely the debate on the entire norm in plenary, which in turn – as expected – would have the same absolute majority as when it was considered. And from there, probably around February, the law will be forwarded to the Senate, i.e. to the territory of the PP, which has an absolute majority in this chamber.
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The Popular Party changed Senate rules last Tuesday to delay processing, giving any proposed law a two-month deadline – instead of 20 days – for debate, even if it is classified as urgent. The Senate Executive Board cannot refuse to edit it despite the majority of the population and the request of Vox leader Santiago Abascal that the PP paralyze the text at this time. If so, the text would automatically be returned intact to Congress in 20 days. Popular sources in the upper house have already assured that the board will limit the standard and not paralyze the process.
The relevant commissions will also be convened in the Senate – into which the PP wants to bring experts and reports that support its rejection of the clemency measure – and there will be room for suggestions for changes. “We have set up a working group in the Senate to coordinate the monitoring of the amnesty law since the registration of the PSOE initiative in Congress. “We will collect documents and reports and coordinate messages,” reported the popular parliamentary group in the upper house this Friday. The PP will be able to make an amendment to the entire law, which would be approved by its absolute majority in the plenary session about two months after it was received in the Senate, so as early as April or May. The rule is then returned to Congress, which, with 178 votes in favor of the rule, can override this total veto and give it final approval. Once this happens, it will be with the approval of Felipe VI. published in the State Gazette (BOE) and comes into force.
At this moment it is the judges’ turn. To be effective, the amnesty must be applied by any court that has already passed a judgment or opened proceedings affected by the pardon measure. The draft law requires courts to apply the amnesty “preferentially and urgently” ex officio or at the request of the parties and within a maximum period of two months.
The court’s application of the law means that the judges issue decisions annulling the ongoing proceedings affected by the amnesty, regardless of what stage they are at. In principle, a period of two months is provided for the adoption of these resolutions, with immediate consequences associated with the entry into force of the law, such as: B. the lifting of security measures that were issued in one of the above-mentioned procedures, the amnesty. This also means that the arrest and prison orders against those who escaped Spanish justice, including Carles Puigdemont, will be lifted.
The remaining consequences of the regulation, such as the end of the execution of sentences, the final discontinuation of the proceedings or the deletion of criminal records, should be ordered within the two months specified by law. The same thing happens in administrative, civil or accounting processes. Once the rule is approved, the PP, Vox or the Autonomous Communities will be able to file constitutional complaints, but this will not suspend the application of the amnesty by the courts nor extend the two-month period established in the draft law.
However, judges have a tool in their hands to largely limit the effects of the clemency measure: when it is their turn to apply the rule, they can claim that they have doubts about its constitutionality or its compatibility with the law. European Union, for which they can raise a question of unconstitutionality before the Guarantee Court or a preliminary ruling before the Court of Justice of the EU. And these issues suspend the application of the amnesty to the specific case for which they are presented. According to legal sources, this means that the judges who take this route will not make a final decision to dismiss the case until the Constitutional Court or the ECJ rules. The Constitutional Court is expected to receive a flood of appeals and questions about unconstitutionality, but inside the court it appears that these cases will be given priority, even if they are not expected to be resolved for six months.
While the verdicts on these issues arrive, the amnesty will only be half effective, which will mean, for example, that if the Supreme Court goes to the Constitutional Court, as is foreseeable, those convicted under the verdict of the October 2019 trial will do they will still serve a disqualification penalty, as will the president of the ERC, Oriol Junqueras, and will continue to be disqualified, which would prevent them from participating in elections or holding public office. In other cases, such as that of Carles Puigdemont or those cases that have not yet been heard in court or in which a verdict has not yet been issued, the damage caused by the suspension is small, but the prosecution continues.
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