Both warn of the lack of temporal specification and highlight the latest modification regarding terrorism
The General Council of the Judiciary (CGPJ) will study in its plenary session next week two opposing reports on the amnesty law proposal: that of member Wenceslao Olea – from the conservative wing, the majority bloc of the body – defends that it is unconstitutional and violates the separation of powers and the principle of equality, while that of the member Mar Cabrejas – from the progressive sector – maintains that it complies with the Magna Carta but highlights the lack of temporal specification and, regarding terrorism, rejects There is a lack of a definition of what is considered a violation of human rights.
As reported by the governing body of the judges, both speakers have conveyed their respective report proposals to the rest of the members of the CGPJ this Tuesday. The two texts, although contrary, agree in warning of the temporal indeterminacy of the norm and in raising doubts about the section relating to the crime of terrorism.
The report defended by Olea emphasizes that the bill does not justify its adaptation to the values, principles and conditions of the Constitution. And he defends that none of the current legal precepts, nor the doctrine of the Constitutional Court, nor the jurisprudence of the Supreme Court allow us to conclude that the amnesty is recognized in our Law.
On the other hand, it insists that the proposition undermines the right to equality, since it considers that the basis of the law that could justify discriminatory treatment is insufficient and arbitrary.
Olea also does not see it admissible that the Legislative Branch can nullify the decisions adopted by the courts, except in cases expressly authorized by the Constitution, as is the case with particular pardons agreed by the Executive. For this reason he concludes that the law also violates the principle of separation of powers.
Regarding the chosen parliamentary procedure, this member considers that it is arbitrary and that its urgency is not motivated. In his opinion, the proposition does not pass the judgment of constitutionality given its nature as a singular law and does not meet the requirement that the causes that motivate it are not arbitrary.
In line, Olea considers that the bill does not delimit with sufficient and enforceable clarity the objective scope of the amnesty and warns that the wide indeterminacy of the precepts can lead to diverse legal interpretations, causing social criticism about the effectiveness of The law is concentrated in the judicial bodies.
This member sees it as imperative to exclude all terrorist crimes from the amnesty and draws attention to the fact that in the section relating to this crime the reference to the Penal Code was eliminated, while at the same time discrediting the intention that the classification contained in national law is not used by Spanish judicial bodies, but directly by the European directive, which – in his opinion – means ignoring the nature and form of application of this type of European regulation.
Likewise, he points out that the automatic and immediate judicial application of the law is very difficult to agree with the speed that is intended – in two months -. He also maintains that the attempt to annul a European arrest warrant when the law comes into force is contrary to EU law.
He also defends that the approach that consultations with the Constitutional Court or the CJEU do not suspend the procedure does not comply with current regulations. And, finally, it states that the attribution to the judicial body of the power to declare the amnesty ex officio that is established in the proposition contradicts essential principles of the criminal process.
CABREJAS SEES A LEGITIMATE PURPOSE IN THE AMNESTY
For its part, the proposed report by member Mar Cabrejas maintains that “the constitutional silence regarding the amnesty does not mean that there is a legal vacuum.” Thus, she says that “as there is no express prohibition in the Constitution to approve an amnesty, the legislator can adopt this type of measure,” although it must be subject to limits derived from the Magna Carta.
Cabrejas also explains that, although the principle of equality constitutes a particularly rigorous limit for an amnesty law, the equality judgment “is always a relative and concrete judgment, which requires the comparison of specific legal situations.” And he adds that it does not represent an interference in the actions of judges, since, like any law, it necessarily presupposes its application by the courts in the exercise of the jurisdictional function.
It also maintains that the constitutionality of an amnesty law requires proving that it pursues a legitimate purpose that objectively and reasonably justifies the difference in treatment accorded to amnesty criminal conduct with respect to other types of conduct that are not amnesty and that, when verified, the existence of this purpose, its specific regulation must overcome a judgment of proportionality.
The member considers, however, that the formulation of a judgment of this type exceeds the advisory function of the CGPJ, since it maintains that constitutionality control has as its object laws already published and is the exclusive jurisdiction of the Constitutional Court.
CABREJAS WARNS OF INCONCRETIONS
Cabrejas’ text points out that the bill describes “in detail and thoroughness” the acts to which its objective scope extends, but that it also “contains some excessively open and indeterminate formulas such as ‘any other act classified as a crime that has identical purpose’ or ‘any other acts classified as crimes carried out with identical intention'”.
In relation to the temporal space of the amnestied acts, the member says that the initial date finally established, November 1, 2011, “does not respond to a precise reason expressed in the statement of reasons, nor does its justification emerge from the set of the proposition.”
It also warns that by including in the scope of application of the law the acts whose execution had begun before November 13, 2023, “even if their execution ended after that date”, “a kind of space of non-responsibility that is not compatible with the exceptional law nature of the amnesty”.
Regarding the exclusion of acts that, due to their purpose, can be classified as terrorism according to the European directive “and, in turn, have intentionally caused serious violations of human rights,” Cabrejas affirms that “its formulation necessarily requires an interpretation of the concept ‘serious violations of human rights’ that can generate application doubts, especially if it is not understood to be linked to the notion used by the ECtHR”.
Finally, regarding the suspensive effect of raising the question of unconstitutionality, Cabrejas points out that “modulating or eliminating the suspensive effect of the preliminary question does not seem to be within the reach of the national legislator.”
The Plenary Session of the CGPJ will meet on March 21 to debate both reports since the Senate extended for the third time the deadline for the body to present its position on the amnesty law. The Upper House, where the PP has an absolute majority, asked the Council to speak out although in this case, as it was a bill, it was not mandatory to obtain its opinion. If it had been a bill, it would have been mandatory.
