Thus bluntly the ruling issued by the European Commission (EC) on the application of an amnesty law in Spain is: “From the outset, the Organic Law of Amnesty (LOA) seems to constitute a self-amnesty, for two reasons. First, because the votes of its beneficiaries were fundamental for its approval in the Spanish parliament. Second, because the bill is part of a political agreement to secure the investiture of the Government of Spain. (…), if there is support to consider that the self-amnesties in which those in political power aim to shield themselves by guaranteeing their legal immunity are contrary to the principle of the Rule of Law, it seems that the same criterion would have to be applied when those in government guarantee the impunity of their partners in exchange for parliamentary support”.
Thus, the socialist government of Pedro Sánchez does not have the EU’s blessing on applying the Amnesty Law to those convicted for the Catalonia independence referendum. The conclusions are clear.
The Commission thus responds to a request addressed to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union, by the Spanish Court of Auditors, aimed at obtaining, in the dispute pending before that jurisdictional body between Catalan Civil Society and the Public Prosecutor’s Office.
The 38-page document presents the European Commission’s written observations in relation to a request for a preliminary ruling, concerning the interpretation of regulations related to the protection of the EU’s financial interests in the context of a dispute in Spain between the Court of Auditors and the Government’s interest in putting into effect the amnesty law approved a year ago.
CONTRARY TO UNION LAW
The conclusions of the document once the Organic Amnesty Law (LOA) has been studied establish that “it is contrary to Union Law to impose a fixed deadline to decide on the application of amnesty if this prevents the judicial bodies from carrying out the necessary diligences to assess the case.” Likewise, it is incompatible with European law “a regulation that prevents a party to the proceedings from debating the decisive elements for the resolution of the case in a contradictory manner.”
The EU also believes that the principles of legal certainty and equality before the law oppose an amnesty law that lacks clarity in its scope of application, which could generate unjustified exemptions from liability and it is contrary to Union Law to compel the lifting of precautionary measures and to issue final rulings within deadlines that prevent referring prejudicial questions to the Court of Justice of the European Union.
In summary, the LOA provisions violate fundamental principles of European Union law, such as primacy, effective judicial protection, and the separation of powers.
The ruling notes that “as the Venice Commission has stated, the LOA has deepened a profound and virulent division in the political class, in the institutions, in the judicial world, in the academic world, and in Spanish society. Nevertheless, the Spanish authorities did not heed the Venice Commission’s recommendations to take the necessary time to conduct meaningful dialogue with a spirit of loyal cooperation among the state institutions.”
DIFFERENTIAL TREATMENT
The European Commission observes that “amnesty laws are exceptional measures that decriminalize acts that are normally pursued. By definition, they establish specific benefits for a group of people defined in the amnesty law itself. Consequently, they introduce differential treatment with respect to people who, having committed the same acts, but in different contexts, for different reasons or at different times, do not benefit from amnesty and remain subject to proceedings and criminal penalties.”
And they add that “the principle of proportionality requires that, in each concrete case, the proposed amnesty be a means appropriate to achieving in the end a legitimate objective.66 91. In this regard, it should be recalled that the rights enshrined in the Charter do not constitute absolute prerogatives, but must be considered according to their function in society.”
