A new report from Congressional lawyers, this time from the Justice Commission, warns that the proposed amnesty law raises doubts about its constitutionality and may contravene European law. This report will be analyzed in the Commission within the same period as the partial amendments before reaching the plenary session again for final approval before sending the final text to the Senate.
A first report from the lawyers allowed the admission for processing of the bill presented by the PSOE, understanding that it was not unconstitutional. This new document, to which La Vanguardia has had access, argues that this unconstitutionality is not obvious but still raises doubts that it could contravene the Constitution.
Furthermore, he explains that it cannot be considered a singular law but that an amnesty of this caliber should be proposed as a constitutional reform. The report analyzes all parts of the proposal. To begin with, regarding the explanatory memorandum, he warns that it is longer than the articles themselves, only to justify its constitutionality.
The text criticizes that the law that is intended to be approved is based on the 1977 amnesty law prior to the Constitution to end Franco's dictatorship. “The assertion that the amnesty prior to the Constitution was part of the original constitutional pact raises doubts that it could constitute the premise from which it can be deduced that the amnesty as a legal figure is permitted by the Constitution, open to the scope of decision.” of the legislator,” the lawyers explain.
For the technicians, the amnesty is not contemplated within the powers of the Cortes Generales, nor attributed to them by any other article of the Constitution, "which however expressly disallows general pardons."
Regarding the articles that make up the law, it warns that the crimes that would be amnestied have remained “undetermined.” An example is when the norm includes in one of the sections that will be amnestied "the acts committed with the purpose of favoring, procuring or facilitating any of the actions determining responsibility, any others that were materially related to the actions determining responsibility."
The lawyers conclude: “This indeterminacy could harm the principle of legal certainty enshrined in the Constitution, which, the Constitutional Court has declared, is clearly affected by an institution such as the amnesty.”
There is also, according to the lawyers, a lack of determination regarding the period in which the crimes that would be amnestied were committed and would run from 2012 – five years before the 1-O referendum – until November 13, 2023, the date of presentation of the Bill. “Both the amnestied crimes and the period in which they were committed do not correspond to the exceptional nature of an extinction of responsibility nor to the requirements of a singular law, which may affect the constitutional principle of legal certainty and make difficult the univocal application of the Law”, they add.
The lawyers argue that a singular law is determined by the specification of the factual assumptions that give rise to the legal consequences in that law. "So if this essential specification is not met, this bill could not be protected by constitutional jurisprudence relating to individual laws and, consequently, violate the principle of equality," they point out.
The lawyers also defend that the amnesty, as proposed, contravenes the law of the European Union, with regard to amnesty crimes of embezzlement, terrorism or the withdrawal of European arrest warrants.
Regarding financial crimes, for lawyers the law could “compromise the harmonization and effectiveness of the rules regulating crimes of this nature, pursued by European Union Law,” to avoid areas of “impunity.”
The rule provides that terrorism crimes linked to the process are amnestied, as long as there is no final sentence. For lawyers, this article may be contrary to European law.
And regarding the approach of the law to annul the OEDs, the lawyers argue that it is an “instrument regulated” by the Law of the European Union, described by the European Council as a “cornerstone” of judicial cooperation and whose The issuing authority is the national judge, who when applying such European Law mechanism acts as a European judge, and must observe the guarantees of such Law.
Therefore, annulling the arrest warrants with the approval of the law "could affect the scope of European Union Law, especially when the deprivation of effects of the European arrest warrant affects the crimes of terrorism and embezzlement, regulation harmonized by European Union Law.”
It also considers the provision of non-restitution of amounts paid as fines in matters now amnestied due to doubts about equal treatment with respect to other cases in which repayment is established, such as the lifting of precautionary measures, to be outside constitutionality. .
