On November 13, the Amnesty Bill was registered in Congress, the content of which has been and will be much talked about, especially because up to now the discussion, or the row, to be more specific, has focused on its political admissibility combined with its usefulness for the interests of Pedro Sánchez, as well as on the tearing that its irruption has produced in the disrespected feelings of a majority of Spaniards, including, let’s not forget, the Catalans.
On the other hand, less has been said about its content and its concrete scope. It has been said, rightly, that it implies forgetting the very serious attempt to break the integrity of Spain, as if it were a fact that could be compromised even beyond the pardons that were granted in its day. But, in the technical criticism, other problems are pointed out, such as the excessive use of clauses of equivocal meaning, so that a good number of questions are left in the shadows, surely sought on purpose, lost in concepts such as the link with the independence movement, or personal involvement in the sovereignty cause, or disagreement with the content of a sentence, the latter idea, and this is just one example, that can be used for anything, from justifying the blocking of a highway or the burning of cars and containers to pouring insults on the network against judges or politicians or against the Head of State.
The Law, it should not be forgotten, is in fieri, since, although it has already been presented, it enters a process of formation or definitive concretion based on the amendments which, in theory, may be presented by the deputies. Those obscure or problematic issues that I have pointed out before, theoretically, should occupy the tasks of the Congressional Commission that studies the Law and the amendments presented against them, which there will be some, in spite of the fact that in the Socialist and allied parties’ benches it is maintained that it is a legally perfect text, and also, logically, because they will be presented by the opposition, which cannot limit itself to an amendment to the totality. For their part, the pro-independence supporters, for their own interest, will try to make the Law more specific in everything they want it to say clearly.
The Proposition of Law is going to be processed by the urgent procedure, provided for in Article 93 of the Rules of Procedure of the Congress of Deputies, which basically means that the time limits will be half of those established for ordinary purposes (Article 94). However, it would be excessively optimistic to suppose that, including the passage through the Senate, the Law will be approved before May, although this is not impossible.
When that happens, it is also foreseeable that there will be quite a few challenges before the Constitutional Court, and, let us not forget, it is also possible that a preliminary question will be raised before the Court of Justice of the EU (CJEU), which has nothing to do with the fact that the issue of the Spanish Amnesty Law has been the subject of debate in a plenary session of the European Parliament at the request of the Popular Party and others, which has happened without the Law having been approved, despite the fact that a wide range of social, professional and political groups have raised their voices against it.
The mere fact that a European parliamentary debate has taken place because of something that is not yet a Law, and that this can be interpreted as a “European” analysis of the quality of democracy in Spain, whatever the causes, is, by itself, very worrying. But that is another matter, apart from the fact that I do not think it is of particular concern to the PSOE. Another thing would be the European preliminary ruling, whose approach is authorized by art. 19 of the EU Treaty and art. 267 of the Treaty on the Functioning of the EU, a possibility that opens when a court, for example, the Supreme Court, raises a doubt about the consistency or harmony between a national rule and EU law. If that happens, and there is no case law to clarify the issue, the appropriate course of action is to raise the doubt before the CJEU so that, in the light of its ruling, it can issue a decision that is certainly in line with European law. And it is very important to bear in mind that the national procedure must be suspended until the CJEU has issued its judgment, and that body is not known for its speed.
The possibility that I have just mentioned cannot be disregarded, and would certainly lead to a delay in the time of entry into force of the Law, in the event that the CJEU does not see any obstacle, because if it did, the Law would have to be rewritten in everything that was affected by it. Therefore, from now until that unknown moment, a period of time is opened during which, first of all, the Congress of Deputies will have to decide on the objective scope of the Law (criminal acts included in the amnesty) and subjective scope (persons who can benefit from it). In this last order of questions will be included the not lesser problem of the pretension that it includes the cases that, according to those affected, are of alleged lawfare.
Equally or more important than that is the legal regime applicable to the criminal acts referred to in the Amnesty Bill, but committed after November 13. Logically, those cases will remain outside the grace, unless the Congress of Deputies, using its undisputed legislative power, modifies the text of the proposal by extending the temporal scope of application of the Law.
This “accordion” technique would be very difficult to justify in the case of events decided when the pro-independence parties had already achieved their objective of forcing the PSOE to present the Amnesty Law proposal. By this I mean that, regardless of the fact that for many the Amnesty Law is inadmissible, within the particular “logic” of the compromises between PSOE and Junts, it would not make sense or justify a lengthening of the scope of temporal effectiveness of the law. The problem is not merely theoretical, since it is enough to look at the declarations and announcements of the ANC and other groups that say they are not concerned by the pacts between PSOE, Junts and ERC, and do not renounce their protest actions.
That the Law is not yet in force is a fact that offers no doubt, but some sectors of the pro-independence movement do not seem to want to understand it, such as, for example, those who demand that the National Court, by the mere fact that the Law is being processed, suspend the proceedings in progress for crimes of terrorism committed by violent pro-independence groups, a request that no Court could accept without prevaricating. The protest of those affected is, on the other hand, understandable, since according to the Proposition of Law itself, crimes of terrorism can be amnestied unless a final sentence has already been passed, so it is urgent to prevent this from happening. It is true that in this regard, a “fix” could also be made in the text of the Law, correcting this limitation and opening the amnesty to terrorist acts already judged, but it would be another way of aggravating the scandal, which in itself is already a resounding scandal.
Another example of contempt for the lack of approval of the Law is offered by the (shameful) issue of the ‘international verifiers’ that the pro-independence supporters demand, to follow up the good fulfillment of the agreements between them and the PSOE, agreements that not only reach the amnesty, but the whole package, including the referendum of self-determination, since, as they have reminded from Junts, the objective of the Party is the independence of Catalonia. Of course, the delay in the entry into force of the Law would be branded as a breach of the pact, and the same would be said, if it were to be held, of a referendum in which the option for independence is not raised. The problem, of course, begins with the incomprehensible acceptance -if that is really true- of the presence of these ‘international verifiers’, which Spain as a State cannot accept.
In short: there is still quite some time before the Amnesty Law reaches the BOE, and, even after that, its effective application may be severely compromised. What may happen in that situation, during which the integrity of the criminal law will subsist, including the procedural situation of Puigdemont, whose return to Spain was taken for granted after the presentation of the Law and the investiture of Sánchez, as if it were an agreed step. The same happens with the disqualifications for those convicted who hope to benefit from the amnesty.