The Amnesty law will reach the plenary session next week without any live amendments from the groups that support and promote the law, unlike what happened a few weeks ago. PSOE, Junts and Esquerra announced last night an agreement according to which today they would present a single transaction that has been carried out through several amendments, one that refers to the preamble of the law and others to the articles.
The changes that will be introduced in the opinion of the Justice commission that was approved today are based on the amendments that had been kept alive throughout this process by the JxCat group, which on January 30 overturned the law in the plenary session of the Congress of the Deputies considering that it did not offer sufficient guarantees for some defendants after the actions of some judges and magistrates, and that of ERC. In particular those related to the chapter of crimes excluded from forgiveness. Furthermore, the drafting of the law also now specifies that amnesty is not for crimes, but for “acts classified as crimes.” This section is fundamental for sovereignists, given the future interpretation of the judges.
In the chapter on exclusions, the most delicate and the one that has covered the most lines and discussions in recent weeks, it is made clear that the crime of terrorism is excluded from forgiveness if it complies with what is stipulated by European legislation, “the Directive ( EU) 2017/541 of the European Parliament and of the Council, of March 15, 2017, relating to the fight against terrorism and, in turn, have intentionally caused serious violations of human rights, in particular those regulated in articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in international humanitarian law.”
Previously, the exclusion of forgiveness referred to both the Penal Code and European law. Although there are those who see that it is not a substantial change, from JxCat they emphasize that “in matters of terrorism, especially, any reference to the Penal Code was a risk due to the interpretation that judges may make, as was already seen with the reform of the Code Criminal, of the crime of embezzlement, in the previous legislature”. In Carles Puigdemont’s party they believe that there were between 150 and 200 people who could be left out of the amnesty with the previous wording.
This point currently affects the 2019 Democratic Tsunami protests, which are now being investigated in the National Court by Judge Manuel García-Castellón and the Supreme Court, and the members of the Committees for the Defense of the Republic (CDR) of Operation Judas , which are already processed.
For the crime of high treason, which is relevant due to the alleged Russian plot of the process that is being investigated by Judge Joaquín Aguirre in court number 1 of Barcelona and which has also reached the National Court after the request of two police officers, a similar operation is done. What stipulates European law will also be taken into account. Thus, the point is worded as follows: “The acts classified as crimes of treason and against the peace or independence of the State and related to the National Defense of Title XXIII of Book II of the Penal Code, whenever they have occurred both an effective and real threat and an effective use of force against the territorial integrity or political independence of Spain in the terms established in the Charter of the United Nations or in Resolution 2625 (XXV) of the General Assembly of the Nations of 24 October 1970, containing the declaration concerning the principles of international law relating to friendly relations and cooperation among States in accordance with the Charter of the United Nations. The key is that it refers to the requirement that “both an effective and real threat and an effective use of force against the territorial integrity or political independence of Spain has occurred.”
This means that the exception of terrorism, torture and high treason is included, but a distinction is made between what the Penal Code stipulates and European and international legislation, a fact that on paper should offer more guarantees to the independence leaders. Taking into account European definitions, a priori, acts of protest, such as the case of Tsunami Democràtic, even if they are investigated for terrorism in the National Court and the Supreme Court, would be amnestiable. The same should happen with the crime of high treason since what appears in the Charter of the United Nations will be taken as a reference and that which “makes effective use of force against the territorial integrity or the political independence of Spain.”
Regarding the embezzlement of public funds, a point about which the Venice Commission warned, some clauses have been added to make it clear that the amnesty will cover the expenditure of public funds “as long as there has been no purpose of enrichment.” and “only when they are directed” to finance expenses related to the process and 1-O, so that corruption does not go unpunished. “The application of public funds to the purposes provided for in the sections will not be considered enrichment when, regardless of their adaptation to the legal system, it was not intended to obtain a personal benefit of a patrimonial nature,” it is added later to finish off. that aspect, contrary to the interpretation that the Supreme Court made of aggravated embezzlement at the time.
So that those prosecuted in the Court of Auditors for the external action of the Generalitat and the process are not left out of criminal oblivion, the deadline for application of the law is advanced until November 1, 2011. With the previous text, the amnesty affected to the events that were committed as of January 1, 2012. This modification appears both in the amendments to the articles and in the one that refers to the preamble of the law.
In relation to fines, the text specifies that “the amnesty will not give the right to receive any compensation, nor will it give rise to the restitution of the amounts paid as a fine”, as was foreseen in advance. However, it has been agreed to return the amount of the minor and serious sanctions imposed with the gag law “provided that proportionality criteria are met as deemed by the Administration that imposed the sanction.” What will not be exonerated is “civil liability towards individuals.” As with the period of application of the law, this point also appears in the amendments to the preamble.
On the other hand, the preamble adds and specifies that “achieving the objective of this norm involves completing the execution of the sentences and judicial processes that affect all the people, without exception, who participated in the independence process.” A reaffirmation that the will is for the amnesty to leave no one behind.
The draft report that the Venice Commission, a body linked to the Council of Europe, has to present in mid-March, provided a boost for the actors involved in the negotiation and helped unblock the agreement. So much so, that an allusion to the organization has been included in the preamble of the law: “In conclusion, this law seeks to provide legal certainty, respect for the principle of legality and a legal framework for the impartial protection of fundamental rights, taking into account the recommendations of the Venice Commission which, in its 2013 opinion, emphasized the importance of maintaining a clear distinction between the legislative and judicial powers in the implementation of the amnesty, ensuring respect for judicial autonomy and the principles democratic.”
In this sense, some paragraphs have been added that reinforce the link of the norm with European law and even make reference to some ruling from the European Court of Human Rights in Strasbourg (ECtHR). “This Amnesty Law has been designed, therefore, in coherence with European and international commitments on human rights, following the guidelines of international treaties and organizations such as the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights”, stands out in the new wording.
The discrepancies that were on the table were resolved after JxCat and ERC decided to agree first on their own, after several months of negotiating each on their own with the PSOE, and then sitting down with the socialists. The decision was made when seeing that everything was running aground. On Sunday there was a first contact and last Monday Jordi Turull, general secretary of JxCat, and Marta Rovira, general secretary of Esquerra, who have always maintained a good personal relationship despite the tensions between both forces, decided to delegate the responsibility to their legal teams. task of reaching a consensus on reforms without political interference. “We agreed on the objective, the discrepancy was legal,” Junts sources explain.
The conversations were led by the JxCat deputy of Congress Josep Pagès, university professor of Law, the criminal lawyer Gonzalo Boye, Carles Puigdemont’s lawyer, and the leader of Esquerra Marta Vilaret, who is in charge of the legal field in Oriol’s party. Junqueras.
