Eduardo González
The delegation of the Venice Commission of the Council of Europe that traveled to Spain a little over a month ago to learn about the proposed Amnesty Law has warned that, given that amnesties “have the effect of nullifying or preventing judicial decisions and procedures”, it should be up to the judiciary, in the name of the separation of powers, to decide whether certain people meet the criteria to receive that measure.
The European Commission for Democracy through Law of the Council of Europe, better known as the Venice Commission, adopted yesterday, during its 138th plenary session, an opinion on the requirements of amnesties in matters of rule of law, with special reference to “Draft Organic Amnesty Law for the institutional, political and social normalization of Catalonia.”
The opinion was prepared after the president of the Parliamentary Assembly of the Council of Europe requested a study on the rule of law requirements that an amnesty must meet and the president of the Senate of Spain requested an opinion in response to six questions related to the parliamentary amnesty bill presented to the Congress of Deputies of Spain.
The Venice Commission analyzed the relevant provisions of the amnesty bill in its version of November 13, 2023 and took into account, to a certain extent, the amendments approved by the Congress of Deputies on March 14, 2024, as reported the Council of Europe in a press release.
In preparing its opinion, the Commission carried out its legal analysis in the light of European and international standards and comparative material. It has not commented on the convenience of the amnesty bill, nor on its suitability to achieve the declared objective, since he considers that “these are political decisions that must be made by the Spanish Government and Parliament.”
Nor has it ruled on the constitutionality of the amnesty bill, “which ultimately falls to the Spanish Constitutional Court to decide,” nor on its compatibility with EU Law, which “could be the subject of a ruling by the Court of Justice.” of the European Union”.
In the opinion of the Venice Commission, amnesties must meet several requirements within the rule of law: legality and the supremacy of the law, which preferably means approval by Parliament with a sufficiently large majority and, in all cases, cases, compliance with the Constitution; respect for International Law, in particular human rights standards; legal certainty, that is, the clarity, determination, accessibility and predictability of the provisions; equality before the law, the independence of the judiciary and the separation of powers.
“Generally, amnesties are motivated by reasons of social and political reconciliation. However, these legitimate objectives must be achieved through consistent methods and procedures so as not to defeat their purpose” and, therefore, “they must be inspired by inclusion, participation, an appropriate calendar and public debates,” it continues. “Consequently, expedited legislative procedures are not appropriate for passing amnesty laws, given their far-reaching consequences and often controversial nature,” he adds.
The Commission emphasizes that amnesties must pursue a legitimate objective in the interest of the community and specifies that national unity and social and political reconciliation can be considered among those legitimate objectives. Likewise, proportionality requires that, in each case, the proposed amnesty is an appropriate means of achieving unity and reconciliation. Furthermore, the opinion emphasizes that, although elected bodies have a margin of appreciation when judging whether an amnesty is an effective instrument, “amnesties must be adopted with a sufficiently large qualified majority, to the extent that they can have very divisive effects on society.”
Concerning the independence of the judiciary and the separation of powers, the opinion notes that “amnesties have the effect of nullifying or preventing judicial decisions and procedures”. In the Commission’s view, “to be consistent with the principle of separation of powers, the judiciary should be entrusted to decide whether specific individuals fulfil the general criteria determined by Parliament for applying the amnesty.”
“It should not be designed for specific people”
Regarding the material and temporal scope of application of the amnesty law in Spain, the Venice Commission reiterates that “an amnesty should not be designed to cover specific people.”
Based on these considerations, the Venice Commission observes that the amnesty bill has been presented “as a legislative proposal, is a procedure with limited consultation to the public, interested parties and other State institutions and has followed a procedure of urgency”, and points out that the amnesty bill has caused “a deep and virulent division in the political class, institutions, the judiciary, academia and Spanish society.” Consequently, the Commission encourages all Spanish authorities and political forces “to take the time necessary to engage in meaningful dialogue in a spirit of loyal cooperation between the institutions of the State, as well as between the majority and the opposition, with the in order to achieve social and political reconciliation, and to consider the possibility of exploring restorative justice procedures.”
Likewise, the Commission recommends that the authorities “seek to achieve a qualified majority greater than the absolute majority of the members of the Congress of Deputies, as required by the Constitution for the approval of an organic law.”
