The legal teams of the parties that have negotiated the amnesty law, which this Tuesday will be registered in the Congress of Deputies, have made an effort to ensure that the text reflects the foundations with which they have built the legal shell of the measure of amnesty. grace that, predictably, will be one of the most used rules in recent history. The Spanish Constitution, framework decisions of the European Union, articles of the law of criminal procedure, international agreements signed by Spain or even the law of democratic memory have served to support that a norm such as the one they intend to approve “is applicable in the State constitutional in circumstances of special political crisis.”
“Amnesty has been used on numerous occasions in our legal tradition,” is stated in the explanatory memorandum of the bill in which it is stated in black and white that “it is not a new path,” since it has “numerous precedents.” " in Spain. The most important, the amnesty law of 1977, but not the only one. The law compiles some references to constitutional texts in neighboring countries such as Italy, France or Portugal, where this measure has been applied. The most recent, on August 2 in the Portuguese country, where all young people between sixteen and thirty years old were granted amnesty for the commission of certain crimes, on the occasion of Pope Francis' visit to Portugal.
From the perspective of European Union law, the text states, “the institution of amnesty is perfectly approved.” Thus, the law highlights in this sense the Council Framework Decision of June 13, 2002, relating to the European arrest warrant and surrender procedures between Member States, whose article three provides that “when the crime is covered by the amnesty in the executing Member State, the European arrest warrant will be refused.”
In this sense, the Court of Justice of the European Union recognized the possibility of the existence of amnesties, in addition to establishing that the same "aims to strip the acts to which it is applied of their criminal character, in such a way that the crime can no longer give rise to the exercise of criminal actions and, in the event that a sentence has already been imposed, ending its execution, therefore, in principle, implies that the sanction imposed can no longer be carried out. The European Court of Human Rights has also recognized, as stated in the norm, “the validity and political opportunity of the amnesty, setting as a limit the serious violations of human rights, as these are facts that cannot be left aside.” of the obligation of States to prosecute and punish them.”
The 23-page text states that “the constitutionality of the amnesty” was declared by the Constitutional Court in its ruling 147/1986 of November 25, regarding the application of the amnesty law of 1977. In that ruling, It was stated that “there is no direct constitutional restriction on this matter.” The norm, in its chapter IV, states that what the Constitution prohibits are general pardons, which have a “very different” legal nature from the amnesty law, a prerogative of the Executive Branch.
“It seems reasonable to understand that the 1978 constituent did not prohibit the institution of the amnesty because, among other reasons, this would have implied the repeal of the 1977 law,” the bill continues, “which constituted the starting point of the constitutional pact.” and without which the Democratic Transition nor the broad parliamentary and social consensus that endorsed and made it possible for the Spanish Constitution of 1978 to see the light would not have been possible.” “The amnesty, far from being an unconstitutional figure, is part of the founding pact of Spanish democracy and is presented as a power of the Cortes Generales, in which the entire Spanish people, holder of national sovereignty, are represented,” they add.
The bill for institutional, political and social normalization in Catalonia highlights that in state legislation, article 666 of the Criminal Procedure Law provides for amnesty “as one of the causes that requires dismissal.” As well as a whole series of approved regulations such as the General Regulation of the disciplinary regime of the personnel in the service of the Administration of Justice, the Organic Regulation of the Corps of Judicial Secretaries or the Regulation of the Disciplinary Regime of the Officials of the State Administration, in the that it is anticipated that the disciplinary responsibility of the members of these bodies may be extinguished, among other causes, by the amnesty.
It also refers to other more recent texts such as the Democratic Memory law, approved in 2022, where it is recognized that the 1977 law “is part of the fully valid laws of the Spanish State.” And references in regional regulations “to amnesty as a cause for extinction of disciplinary responsibility.” Finally, they highlight that the amnesty is contemplated in more than thirty international agreements signed by Spain regarding the transfer of convicted persons or extraditions, more than twenty of them having the status of treaty or international agreement, which implies a prior review of their full status. constitutionality.
