The first round of the battle for the amnesty law in international bodies comes to an end. The Venice Commission, an advisory body of the Council of Europe – which is not part of the EU institutions – made up of experts in constitutional law, approved this morning by general consensus its opinion on the norm. The conclusions reached do not differ too much from those already advanced in the draft known two weeks ago: it defends the general benefits of amnesties – the search for reconciliation – but there are several drawbacks to the Spanish law in particular: it asks narrowly limit its temporal and material scope of application, criticizes that it has been processed through an emergency procedure and invites it to be approved by “qualified majorities”, that is, with greater consensus.
The commission warns that the bill — which was approved on Thursday in Congress and has now passed to the Senate — “has deepened a deep and virulent division in the political class, institutions, the judiciary, the academic world and society Spanish”, according to sources familiar with the final document. It does not consider, however, that it implies a violation of the principle of separation of powers, as long as the application of “the general criteria of the law” to “specific cases” is left in the hands of the judges.
The advisory body, as it did in the previous draft, generically considers that amnesty laws, which have been adopted in different countries, are useful, because “national unity and social and political reconciliation are legitimate objectives.” He does not comment on the convenience of this type of grace measures nor does he endorse or censure their use, fundamentally because that, he says, is not his mission. However, it emphasizes that “urgent procedures are not (…) appropriate for the adoption of amnesty laws, given the far-reaching consequences and often compromising nature of those laws.”
One of the Commission’s speakers, the Dutchman Martin Kuijer, explained to journalists the spirit of some of the specific recommendations at the exit. Especially, the one that calls for increasing consensus to move forward with this law with a “more qualified majority.” “We are aware of the divisive nature of this issue in Spain. The division was already there before the amnesty, but the law and talk regarding it have increased that division in Spanish society. And that is why we ask all parties in this process for constructive dialogue and to seek an appropriate majority, although we know that the [modalidad de] organic law in Spain does not need it.” The vote on the amnesty bill last Thursday split Congress in two: 178 deputies voted in favor and 172 voted once morest.
The Venice Commission document is based on an analysis of the political process that led to this law. This knowledge led its speakers to establish in the draft that the times used to process the standard have not been adequate. In this sense, it requests that “the temporal and material objectives of the application of the law be narrowed and more precisely defined”, as well as “ensure that there is a closer causal link between the referendums of November 9, 2014 and October 1, 2017, its preparation or consequences and the crimes of embezzlement.” Regarding the first element, the temporal scope, the opinion states that the latest version of the law has extended the period in which the amnesty would be applied, establishing a “very broad” period that goes from November 1, 2012 to November 13. of 2023, and that the legislator has not explained that decision. “We recommend checking the times. We are not saying that they are not appropriate, but we see no justification for the dates chosen for the amnesty,” the speaker stated.
Regarding the crime of embezzlement, the Commission already included that reproach in the first draft of the opinion, which led the Government and its partners to tweak the scope of the amnesty for that crime in the latest version of the law. The final text establishes that only embezzlement aimed at financing acts linked to the process “when no personal benefit of a financial nature has occurred.” The Venice Commission, however, once once more calls for “a stronger link” of that crime with the events covered by the law; that is, a greater justification.
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The urgency has been counterproductive, the text points out, both for procedural reasons and for the “deep and virulent” division that the amnesty law has produced among the political class and, in general, in Spanish society; and that can, alert, jeopardize the very objective of social reconciliation sought by the law. Furthermore, the opinion notes that “the amnesty should not be designed to cover specific individuals.”
With regard to terrorist crimes, the text limits itself to claiming that “the principle that guides the amnesty [en estos casos]” is compatible with international standards and that terrorism crimes are only amnestiable “if they do not seriously violate human rights.”
The Commission’s opinion, as its Dutch representative also explained, does not consider that the amnesty law violates the principle of separation of powers of the State, one of the statements made by the PP. “The judge must be the one who applies the general criteria of the law in specific cases. And, if that happens, we see no problem in the separation of powers between the political and judicial domains,” he stated. The opinion also points out that it would be “preferable, when the time comes,” to regulate the issue of amnesty in the Constitution. Commission sources explained that this recommendation is for the future, not linked to this amnesty law.
Opposite interpretations
The president of the Senate, Pedro Rollán (PP), and the socialist Isaura Leal, second secretary of Congress, participated in this Friday’s meeting at the Venetian headquarters of this advisory body. At the exit, Rollán and Leal gave opposite interpretations of the ruling to journalists. Both were enthusiastic and considered that the Commission had agreed with them. While the Government and the PSOE believe that the text endorses an “impeccable and positive” norm and that “it complies with international standards”, the PP points out that the Commission questions numerous aspects of the law, such as urgent processing and without subjecting it to reports, and the absence of qualified majorities. The Minister of Justice, Félix Bolaños, has stated that the opinion “resoundingly” endorses the amnesty law and has urged the PP to join the “consensus” in order to solve one of the problems that the opinion contains: the lack of a greater consensus.
In mid-December, the plenary session of the Venice Commission accepted the request of the Spanish Senate to issue a report giving its opinion on the proposed amnesty law for all those accused of the process catalan independence. The five signatories of the report say they have analyzed the situation in the other member countries: in the majority of them, they point out, the amnesty is “explicitly” included in their Constitution and, of the cases in which it is not already provided for, more than one dozens of countries “consider it acceptable for specific occasions.”
An advisory body outside the EU institutions
MANUEL V. GÓMEZ
The Venice Commission was created in 1990 to “provide legal advice” to its Member States and, in particular, to help States that wish to bring their legal and institutional structures closer to European standards of democracy, rule of law and human rights. The communist regimes had just fallen from the Soviet orbit, and the number of liberal democracies, especially in Europe, was growing.
Although it is a mainly European body and is part of the framework of the Council of Europe (something totally unrelated to the European Union and its institutions), this commission also has members from other continents: to the 46 European States we must add another 15 (Algeria, Brazil, Canada, Chile, Costa Rica, Israel, Kazakhstan, South Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the United States) plus four observers (Argentina, Uruguay, Japan and the Holy See).
The members appoint the people who are part of the Venice Commission for four years, which usually seeks legal experts. Its work is carried out in three areas: democratic institutions and fundamental rights, constitutions and ordinary justice, and elections and political parties.
Although the official name is “European Commission for Democracy through Law”, even the Council of Europe itself calls it “Venice Commission” because it is in the Italian city where the plenary session meets, four times a year: March, June , October and December.
The amnesty law is not the first Spanish law or legal reform that the Commission’s experts analyze. They already did so in 2017, then at the request of the Basque and Catalan governments, following a reform of the Constitutional Court two years earlier that empowered the highest interpreter of the Fundamental Law to adopt executive measures to force compliance with its resolutions. The Commission’s resolution then was that the reform was adapted to European standards, although it requested some improvements.
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