Since people started talking about the ‘trial’ amnesty Until now, the position of specialists in the matter has changed, as has that of the Government of Pedro Sanchez. If before the summer the experts consulted saw it as very difficult for the constitutional fit of a norm that would wipe the slate clean of the events that happened in Catalonia in the fall 2017now, after studying the fine print of the bill presented in Congress, they agree on the conclusion that the text is sufficiently prepared to overcome the filter of the constitutional Court. As a check on the law that will be debated next week, El Periódico de Catalunya, from the Prensa Ibérica group, has posed four questions to four law professors.
1. Is it well argued?
The professor of Constitutional Law at the University of Barcelona Xavier Arbós considers her “quite well argued in the explanatory memorandum.” “It addresses the fundamental problem, which is that of equality before the law, although it does not convince me. There may be unequal treatments for unequal situations, but, in my view, It is the law itself that creates inequality: in the face of equal crimes, the law distinguishes between those who have committed them with a specific ideological motivation, who will benefit, and those who have done so for another reason.
Miguel Presnoprofessor of Constitutional Law at the University of Oviedo, appreciates in the explanatory statement “a general defensive tone, a kind of anticipation of the objections that will come in both the political and constitutional debate: previous amnesties are mentioned in Spain, in neighboring countries and international resolutions”, arguments that, in his opinion, deserve a little more development. “He insists, and he does well, that an amnesty is not necessarily unconstitutional but, as the Constitutional, “exceptional,” he adds.
The professor of Criminal Law at the University of Castilla-La Mancha Nicolás García Rivas agrees that the explanatory memorandum “It’s very well looked after. It refers to various points of legal-constitutional support for the amnesty, both from the Constitution itself, which in no article prohibits it, and from European Union regulations that recognize it as a legitimate means of extinguishing criminal responsibility.” weak point, he argues, is his explanation of the “political conflict from which the serious criminal responsibilities of the independence leaders were derived and, as a consequence of these convictions, the public order altercations”, because “it is dispatched alluding only to an ‘institutional tension that gave rise to the intervention of Justice’, when in reality a political conflict occurred” derived from the Statute ruling.
Vicente Guzmán Flujaprofessor of Procedural Law at the Pablo de Olavide University of Seville, disagrees with his colleagues and maintains that “the development of this law has many basic problems. The main one is that Its legal argument, which could be improved, is mediated by political argument”, because it responds “to the confessed need to obtain enough votes to achieve a parliamentary majority that allows the inauguration of the President of the Government.” “Such a delicate law cannot be based on this premise, and the arguments it uses serve to try to cover up this reality,” he assures.
2. Will it pass the TC filter?
Arbós explains that “he can overcome it, because The TC has no precedents that condition it, given that there has never been an amnesty since the entry into force of the Constitution. It has a lot of room to justify its decision, because it must take into consideration somewhat imprecise criteria, such as reasonableness and proportionality, to justify the differential treatment it entails. The fact that the Constitution neither contemplates nor explicitly prohibits it leaves even more room for the TC.” Presno believes that He will do so because “the laws are presumed constitutional” and it does not “seem that there is clear evidence of unconstitutionality.”
García Rivas highlights that “the Until now, the Constitutional Court has preferred not to interfere too much in the criminal policy adopted by the legislative branch.. The references to equality as a right violated by an amnesty completely ignore that The unequal (criminal) treatment for those prosecuted for crimes derived from the Catalan political conflict is justified by the inequality itself that accredits the institutional tension experienced in Catalonia. during the last 10 years, which has not occurred in any other territory of the Spanish State, not even in the Basque Country”.
Guzmán also believes that it will be “the most likely,” but he focuses on “the current makeup of the TC with a large ‘progressive’ majority. The TC has been devalued by the spurious use of the appointments of magistrates that the parties have been making, which leads to it being resolved in certain cases in accordance with the partyocratic interests of the government in power, which seems to happen with the law of amnesty,” he predicts.
3. Can there be disparate resolutions?
“It may be the case that a judge understands that the law is perfectly constitutional and applies it without any problem. Y another, on the contrary, considers it unconstitutional and presents a question of unconstitutionality to the TC, which will mean suspending the procedure,” explains Arbós. Presno focuses in the TC and remember that all appeals or questions of unconstitutionality will be resolved by the plenary session.
García Rivas points out that there may be disparate resolutions “as in any other matter. The difference is the “previous belligerence of some members of the judicial establishment, who have even demonstrated, robe in hand, against a future law, something unheard of.”. “It stands to reason that many of the protesters will exercise their jurisdiction by raising unconstitutionality issues against the future law,” he says.
For Guzmán, “the controversy surrounding this law suggests that, more than disparate sentences, “its application is subject to the examination of judicial bodies that may leave it without effective content.”. “Once approved, it must be applied by all national judicial bodies, but, apart from possible appeals before the TC, any judge can invoke the Community preliminary ruling that would allow the CJEU assess its adjustment to the principles and rights included in the EU treaties”.
4. What are your weak points?
Arbós sees two, in addition to the one related to principle of equality: deprives jurisdictional monopoly to the judges, because it prevents them from judging and enforcing what has been judged, by imposing on them the shelving of the cases and the annulment of the sentences imposed, and denies the right to effective judicial protection (to obtain a sentence) to the accusations of these cases, including people who reported to the police.
Presno considers that “the explanatory statement has debatable paragraphs, some of which are wrong – such as describing an act of the legislator as sovereign – and could be more specific in some points and briefer in others.” He also “is struck by the fact that it covers such a long period of time (January 1, 2012 to November 13, 2023), since something by definition exceptional requires its extension to be reduced to the minimum possible“.
Garcia Rivas believes it is “correct” to leave out terrorist crimes, while including those ‘related to terrorist activities’. He argues that “leaving out of the amnesty the crimes already firmly condemned but not those that must be tried makes no sense, because the behaviors are the same in both and the amnesty is justified by the legal assessment of those behaviors, not at the time of his prosecution.”
For Guzmán, “it does not seem to respect essential principles such as equality before the law,” because “it should cover the conduct carried out by people belonging to ‘both sides’ and a commitment not to repeat the same amnestied conduct.” , which does not seem to exist”.
2024-01-07 07:58:12
#Legal #examination #amnesty #law #protected #disparate #sentences #weak #points
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