The legal report prepared by the lawyer of the Senate joint commission on the amnesty warns that this law will cause the “disempowerment” of judges to judge and enforce what is judged.
This report will be studied in the presentation to study the vetoes presented by the PP for a full vote before sending it back to the Congress of Deputies. With the stoppage announced by the President of the Government, Pedro Sánchez, doubts were raised about the calling of new elections, which could have left the final approval of the law at an impasse.
This report, dated today, and to which La Vanguardia has had access, considers that the bill “represents a bankruptcy of the division of powers embodied in the Constitution, specifically of the absolute reservation of jurisdiction and the unconditional obligation to comply the final sentences and resolutions of the judges and courts (article 118 of the Constitution).”
According to the lawyer, the erasure of the judicial cases of all those people linked to the process represents a “disempowerment of the ordinary exercise of the jurisdictional function in the field of the criminal acts on which it is projected, especially serious when it annuls res judicata. , which would require an express provision by the Constitution.”
The member of the technical body of the upper house explains that the defense made by the law in its statement of reasons cannot be accepted, alleging that in Spain there was already an amnesty because it was to close a dictatorship.
“It is, finally, striking that the explanatory statement omits the fact that the current Spanish Penal Code (1995), called the Penal Code of Democracy, eliminated the amnesty from the list of causes for extinction of criminal responsibility included in its article 130, an elimination that appeared since the original drafting of the Bill and that did not raise any debate during its processing,” he warns.
For this reason, in his opinion, the amnesty as stated in the text that is in parliamentary debate “turns out to be a kind of general amnesty.” He argues that all the constitutions prior to that of 1978 were a kind of “plaster on granite”, because they were a text that included the expression of the political program of a faction, “and, above all, a diminished conception.” of the Constitution, not considered as an authentic legal norm and precisely the superior norm.”
It was not until the 1978 Constitution that a work that was “genuinely collective and not party-based, and whose normative supremacy was imposed from the beginning in an incontrovertible manner” was developed. Therefore, when it was decided not to include the amnesty in this Magna Carta, it was, in his opinion, conscious in order to defend the division of powers, leaving only private pardons as an exception.
“For all these reasons, we must be warned of the risk that the approval of this Organic Law Proposal entails for the Cortes Generales, since it could determine, by the jurisdictional bodies that have to apply the amnesty, the raising of a prejudicial question, before the Court of Justice of the European Union, or a question of unconstitutionality, before the Constitutional Court,” he concludes.
