The plenary session of the General Council of the Judiciary (CGPJ) approved this Thursday by majority, 9 of the 16 members, the report by which the Amnesty law is considered unconstitutional. The position had been requested by the Senate, which began its processing once the law was approved last week in the Congress of Deputies.
The plenary session had two conflicting reports on the table. One from the conservative vocal Wenceslao Olea and another from the progressive Mar Cabrejas. The first, the one that has come forward, defends that the rule is unconstitutional and of “deficient legal technique.” While the second 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.
The report that has come forward to be sent to the Upper House is that of Olea, which concludes that the motivation for the amnesty has, as a direct and immediate cause, the agreement of November 9, 2023 between the PSOE and Junts per Catalunya, " "so that the invocation of an alleged general interest is either assimilated with the interests of that agreement or left unexplained, without being able to be extracted from any other circumstance."
In his opinion, the Constitution, by consciously excluding the amnesty, requires the legislator to justify each of the reasons why the amnesty is introduced into a law. It also shows 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 chosen parliamentary procedure, Olea's text explains that it is "arbitrary" and that its urgency is not motivated, "and 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."
The member's argument is that the legislative branch does not have the power to nullify judicial decisions, except through individual pardons, a mechanism contemplated in the Constitution.
The report states that the amnesty law, in the parliamentary process, is not "reasonable, proportionate and appropriate to the purposes it is intended to achieve."
Going into the details of the law, the report, now approved by the plenary session, considers that terrorism crimes should be, without exception, outside the amnesty, with the ultimate goal of "preventing" the amnesty from covering any type of terrorist act. committed in the context of the independence process.
In relation to the effects of the amnesty on criminal responsibility, the report points out that the automatic and immediate judicial application of certain effects "is very difficult to agree with the haste that is intended", since in any case it will require a motivation that will provide and, where appropriate, the elements to directly dictate the final resolution.
He also criticizes that the law orders that a European arrest warrant be immediately rescinded and understands that it may be contrary to European Union law.
Voting in favor of the text, in addition to the speaker, were members José Antonio Ballestero, Nuria Díaz Abad, Gerardo Martínez Tristán, Juan Martínez Moya, Juan Manuel Fernández, Carmen Llombart, José María Macías and Ángeles Carmona. The member Mar Cabrejas, speaker of the other proposal submitted for debate today, will present this as a dissenting vote, to which the members Roser Bach, Álvaro Cuesta, Clara Martínez de Careaga and Pilar Sepúlveda adhere. The member Enrique Lucas and the president of the CGPJ, Vicente Guilarte, have voted blank.
