In case there was any doubt, the Venice Commission made it clear yesterday in its final report on the Amnesty law for the process being processed in Spain that once the law has been approved by the legislative branch it cannot be repealed citing the principles of “legal certainty.” ” and “irretroactivity of criminal law.”
The advisory body dependent on the Council of Europe published yesterday the definitive and non-binding text of its report, which does not offer much more news about what was already known on Friday when the plenary session of the commission approved it and gave a summary of it.
At the beginning of 2024, the PP spokesperson, Borja Sémper, assured that his party would repeal the law if at some point it obtained the necessary majority to do so and its president, Alberto Núñez Feijóo, insisted on this last week in an interview, although He acknowledged that he does not believe that the amnesty “can be invalidated once it has been granted.”
Well, the Venice Commission clarifies these doubts and, citing the European Court of Human Rights, recalls that “in relation to amnesties, their retroactive revocation is generally not permitted, since they are adopted by the legislator and their revocation would be contrary to the principle of legal certainty and the principle of non-retroactivity of criminal law.”
However, the organization makes a distinction between revocation and “a possible declaration of non-conformity of an amnesty law” by a higher legal body such as the Constitutional Court, a court of the European Union or international law.
Regarding the suspensive effects of an appeal before the Constitutional Court, the Commission observes that by virtue of the law that regulates it, this court cannot suspend a law that has been deferred to it unless requested by the Government in relation to matters autonomous.
Regarding the suspensive effects of unconstitutionality issues brought by judges before the Constitutional Court, the report indicates that Spanish legislation establishes that “they will give rise to the provisional suspension of proceedings in the judicial process until the Constitutional Court decides on their admission. Once this decision has been made, the judicial process will be suspended until the Constitutional Court has ruled definitively on the issue.”
Article 10 of the amnesty bill establishes that “decisions will be adopted within a maximum period of two months, without prejudice to subsequent appeals, which will not have suspensive effects.” The Commission indicates here that the Spanish authorities have informed it that “the rules that apply to appeals are, in principle, the ordinary ones and that the exclusion of the suspensive effect does not apply to the procedure before the Constitutional Court.” “The Commission emphasizes that, in any case, this clause cannot be interpreted in such a way as to deprive the judicial review of the amnesty bill of any practical effect, including possibly with regard to the application of criminal law principles.” .
On the other hand, as was already reflected in the summary that the Commission offered last Friday, the final report raises doubts about the achievement of the objective of the law, the institutional, political and social normalization of Catalonia, which it describes as “legitimate.” “despite criticism for being a political agreement to achieve a majority that would support the government. In this sense, the commission points out that Parliament “will have to address the question of whether the normalization of Catalonia can be achieved despite the fact that the amnesty project has deepened the deep and virulent division in the political class, in the institutions, in the judiciary, in the academic world and, above all, in Spanish society”.
