The General Council of the Judiciary (CGPJ) will debate two contradictory reports on the legality of the Amnesty law. The members designated for analysis have each issued a report after failing to reach a consensus text. The reports have been prepared at the request of the Senate.
The vocal speakers, the conservative Wenceslao Olea and the progressive Mar Cabrejas, have today informed the rest of the members of the governing body of the judges of their respective report proposals.
The first, and the one that seems to have the votes of the conservative majority, considers that the norm is unconstitutional and of “deficient legal technique.”
For his part, Cabrejas warns, on the contrary, that “the constitutional silence regarding the amnesty does not mean that there is a legal vacuum.” In his opinion it does have constitutional anchoring, as the Magna Carta is the one that attributes legislative power to the Cortes Generales. Thus, he says that "there being 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 Constitution.
Olea maintains the opposite. In his proposed report he affirms that the Constitution, by consciously excluding the amnesty, requires the legislator to justify the adaptation of the proposed organic law to each and every one of the values, principles and conditions that the fundamental norm imposes on the legislative power, “which is not seen in the text of the projected norm.”
In this sense, it is also evident 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."
With regard to the parliamentary procedure chosen, the report proposal considers that it is arbitrary and that its urgency is not motivated, and the route of the bill should have been chosen, "taking into account the legal exceptionality and social significance of the matter."
On the other hand, it considers that the proposed organic law “undermines” the right to equality, since “the more beneficial differential treatment of the subjects covered by the amnesty in relation to the rest of the citizens.”
Furthermore, he understands that the text promoted by the PSOE together with the pro-independence parties “violates” the principle of separation of powers. In his opinion, it also does not meet the requirement that the causes that motivate it are not arbitrary, since "the text as a whole does not justify that we are faced with a reasonable, proportionate and adequate law for the purposes it is intended to achieve."
The member draws attention to the omission from the Penal Code in relation to this crime of terrorism, with the clear intention that the classification contained in national law is not used by the Spanish judicial bodies, but directly by the European Directive. , “which means not knowing the nature and form of application of this type of European regulation.”
Likewise, it warns that attempting to annul a European arrest warrant in the manner established by law “may be contrary to EU Law, as well as that not suspending the procedure, when a question of unconstitutionality or a question has been raised prejudicial, does not comply with the regulation of those procedural instruments of purification in constitutional and Union Law.”
For his part, Cabrejas explains that “an amnesty law is exceptional, retroactive and temporary, but this does not deprive it of the quality of law.” He also states that although the principle of equality constitutes a particularly rigorous limit for an amnesty law, it cannot be interpreted that there is an express prohibition. “The equality judgment is always a relative and concrete judgment, which requires the comparison of specific legal situations,” he adds.
Regarding the constitutionality of the law, the member considers that this analysis should be done by the Constitutional Court. “This constitutional body (CGPJ) does not have the power to apply a canon or test of constitutionality to a legislative initiative that has already begun its parliamentary processing,” since constitutionality control has as its object laws that are already perfect and published and is its exclusive jurisdiction. of the Constitutional Court.
Cabrejas defends that the bill describes “in detail and thoroughness” the acts to which its objective scope extends, although he warns that it also “contains some excessively open and indeterminate formulas.”
For the vowel, the temporal space included in the law is too extensive and “does not respond to a precise reason expressed in the explanatory statement, nor does its justification emerge from the entire proposition.”
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,” the rapporteur states that “its formulation necessarily requires a interpretation of the concept 'serious violations of human rights' that may raise doubts in its application, especially if it is not understood to be linked to the notion used by the ECHR."
Finally, Cabrejas believes that the law has gone too far by limiting the suspension of preliminary rulings. “Modulating or eliminating the suspensive effect of the preliminary question does not seem to be within the reach of the national legislator,” he concludes.
