The General Council of the Judiciary (CGPJ) took a position again yesterday against the Amnesty law. This time he had to deliver a report at the request of the Senate on the suitability and legality of the text, which was declared “unconstitutional” by nine votes in favor, five against and two blanks.
The plenary had to discuss two conflicting reports on the text. One of the conservative vocal Wenceslao Olea and another of the progressive Mar Cabrejas. The first, the one that has gone ahead, defends that the rule is unconstitutional and of a “deficient legal technique”. While the second warned, on the contrary, that “the constitutional silence regarding the amnesty does not mean that there is a legal vacuum”.
The report that he took forward to send 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 Together. Therefore, he criticizes that “the invocation of an alleged general interest” is not the reason for the law. In the voting, there were two blank votes, one of which by the acting president of the body, Vicente Guilarte, who justified it by explaining that he shares many of the reflections of the two reports, but that he understands that there has not been recorded in the statement of reasons for the law that the reason for this is the investiture of Pedro Sánchez as president of the central government.
According to Guilarte, this is the “real and onerous cause” of the proposed law, replaced in the statement of reasons by the pacifying claim of Catalan society, and with this perspective the legality of the proposal must be analyzed” . In his opinion, the CGPJ report should have reflected this.
Another of the points that according to him the report should have reflected is that in this pact between the PSOE and Junts it is also planned to create parliamentary commissions of investigation that could eventually hold the judges accountable, “which is undoubtedly contrary to the judicial independence and the division of powers”.
The report approved by the majority maintains that the Constitution, insofar as it consciously excludes amnesty, requires the legislator to justify each of the reasons why amnesty is introduced in a law. It also highlights that none of the legal precepts in force, neither the doctrine of the Constitutional Court nor the jurisprudence of the Supreme Court, allow us to conclude that amnesty “is recognized in our law”.
With regard to the chosen parliamentary process, Olea’s text explains that it is “arbitrary” and that it is not motivated by urgency, “the path of the bill should have been chosen, given the legal exceptionality the social significance of the matter”.
On the other hand, he considers that the proposed organic law “undermines” the right to equality, since “the most beneficial differential treatment of the subjects included in the amnesty is not justified in the appropriate terms of suitability and proportionality with the rest of the citizens”.
The argument of the CGPJ is that the legislative power does not have the power to nullify judicial decisions, except through individual pardons, a mechanism provided for in the Constitution. The report notes that the Amnesty law, in the parliamentary processing phase, is not “reasonable, proportionate and adequate to the aims that are intended to be achieved”.
Going into the details of the law, the report, now approved by the plenary, considers that the crimes of terrorism must remain, without exception, outside the amnesty, with the ultimate aim of “preventing” criminal oblivion from including any type of terrorist act committed in the context of the independence process.
He also criticizes that the law orders the immediate cancellation of a European arrest warrant and understands that it may be contrary to the law of the European Union. Finally, the report emphasizes that the wording of the proposed law is confusing in the most relevant precepts, which makes its interpretation by the courts very difficult.
