prospects for the Spanish amnesty on the Catalan independence battle – Official Weblog of UNIO – Fin Serve

Miryam Rodríguez-Izquierdo Serrano  (Professor of Constitutional Legislation on the College of Seville) 
           

On 11 June 2024[1], the Spanish Official State Journal revealed Natural Legislation 1/2024, of 10 June, on amnesty for institutional, political and social normalisation in Catalonia (Ley Orgánica 1/2024, de 10 de junio, de amnistía para la normalización institucional, política y social en Cataluña).[2] The legislation entered into pressure on the identical time of its publication. As of this date, it’s obligatory for the judicial, administrative and accounting our bodies that could be dealing with instances linked to the sovereignty course of in Catalonia (2014-2017) to use the legislation. The legislation orders these our bodies to exempt from legal, administrative or accounting legal responsibility those that have been concerned in these occasions, particularly these linked to the preparation or penalties of the consultations on independence that occurred in 2014 and 2017.

The approval of this Spanish amnesty legislation has been preceded by some hypothesis concerning the place that the EU will undertake in relation to it, in addition to others associated to doable preliminary rulings: whether or not the Spanish courts may ask the CJEU for preliminary rulings earlier than adopting their choice on the applying of the amnesty legislation to every particular case. Because of this, it’s related to recall what the EU’s place has been, thus far, relating to amnesties permitted in its Member States. However above all, you will need to discover out whether or not the CJEU has beforehand dominated on the effectiveness of amnesty legal guidelines. This may present fundamental steerage on whether or not the CJEU has jurisdiction over an amnesty legislation handed in a Member State and on the bounds inside which a Member State could resolve to amnesty legal, administrative and accounting liabilities.

1. The EU’s common place on amnesties within the Member States

Firstly, it may be mentioned that, till now, the EU has remained aloof from the amnesties permitted in several Member States. In actual fact, in lots of them, the Constitutions recognise the potential for approving amnesties, and this has been completed on a number of events in international locations similar to France, Germany, Italy and Portugal. This assertion could be supported by a number of normative parts: Article 4 of the TEU, which reserves to the Member States competences not attributed to the Union and incorporates the so-called “nationwide id clause”; the silence on the difficulty within the TFEU’s regulation of the world of freedom, safety and justice; and, most particularly, the truth that Article 1(1) of the Framework Choice on the European arrest warrant [Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)] establishes {that a} European arrest warrant shall lapse instantly when the offence which gave rise to it has been the topic of an amnesty within the executing Member State.

Nonetheless, it ought to be famous that, in 2019, the European Fee publicly expressed its disagreement and rejection of an amnesty in Romania, provided that it was deliberate to pardon corruption crimes perpetrated by political leaders. Because the Fee itself stories, that amnesty try was neutralised by the Romanian residents themselves, by their majority rejection of it in a referendum [COM(2019) 499 final]. Equally, and extra just lately, the European Parliament adopted an modification to the proposal for a Directive on combating corruption [COM(2023) 234 final], calling for a ban on amnesties on this space, particularly those who may have an effect on the Union’s monetary pursuits.

In any case, provided that the legislative process has lapsed for the aforementioned proposal for a Directive, and provided that the European Fee has chosen to remain out of the Spanish amnesty legislation of 2024, in the intervening time it may be maintained that, on the whole and in precept, amnesties determined by the Member States are inner issues for them.

2. The place of the CJEU vis-à-vis particular amnesties and in relation to the targets of the world of freedom, safety and justice

The case legislation of the CJEU regarding amnesties adopted in Member States or third international locations is scarce. There are solely two judgments regarding preliminary rulings on questions regarding amnesties: one in Slovakia and one in Iran. Each relate to preliminary rulings on the interpretation of the Framework Choice on the European arrest warrant (EAW), in each instances there’s doubt as as to whether Article 50 of the Constitution of Basic Rights of the European Union (CFREU), the ne bis in idem precept, is revered, and in each instances the CJEU avoids announcing on the legitimacy or legality of the respective amnesties.

The primary judgment is that handed down in Case X, C-665/20 PPU, on 29 April 2021.[3] A Dutch decide had doubts as as to whether executing an arrest warrant requested by Germany could be appropriate with the EAW, insofar because the particular person involved, Mr X, had already been tried, after which amnestied, for a number of the details in his nation of origin: Iran. As defined above, the CJEU didn’t assess the legitimacy or in any other case of that amnesty, which pardoned severe crimes of damage. However the CJEU did emphasise two facets that may be related for reconciling an amnesty with the targets of the world of freedom, safety and justice: an amnesty ought to ideally reply to legal coverage targets; an amnesty ought to be interpreted in accordance with the targets of stopping impunity within the European space and combating crime; and the decide’s margin of appreciation, in an amnesty case similar to this one, ought to weigh these supranational pursuits in opposition to the authorized safety owed to the particular person topic to the arrest warrant.    

The second judgment is the one handed down in case AB, C-203/20, on 16 December 2021.[4] In that case, a Slovak decide requested the CJEU whether or not it may concern an arrest warrant for nationals of his state. Particularly, they had been former safety brokers whose crimes, associated to kidnappings and unlawful detentions, had been amnestied in 1997, however who since 2017 had been once more being prosecuted due to the revocation of that previous amnesty. On this event too, though it was a query regarding a Member State of the EU, the CJEU didn’t want to assess the legality or illegality of the amnesty or its revocation. Nonetheless, it did make clear sure factors which are related to figuring out the angle from which the CJEU understands its jurisdiction in such a case: the approval or revocation of an amnesty, in precept, are understood as inner issues of the Member States; neither within the legislative process by which an amnesty is permitted in a Member State nor within the process for reviewing the constitutionality of that legislation do the completely different Directives regarding the harmonisation of procedural safeguards in legal proceedings apply; however to the extent {that a} court docket with jurisdiction to concern an arrest warrant asks the CJEU concerning the compatibility of such an amnesty with the Framework Choice, the CJEU has jurisdiction within the matter and can reply such preliminary questions as are related and relevant to the choice to be taken by the decide or court docket.

3. The affect of EU legislation and CJEU jurisprudence on the Spanish amnesty legislation

The 2 instances which were analysed come up in relation to amnesties which are very completely different from the one permitted in Spain. The primary is as a result of it includes crimes in opposition to bodily and ethical integrity, affecting the nucleus of human rights safety protected by Articles 2 and three of the ECHR, and since it includes a 3rd State with respect to which the precept of mutual belief doesn’t apply. The second is as a result of, though it’s linked to a specific amount of political corruption, it’s a matter of crimes in opposition to liberty and, though the preliminary ruling comes from a Member State of the Union, it’s a revoked amnesty, not an permitted one. 

Even so, that is clear: the CJEU asserts its competence to look at preliminary rulings that, in amnesty conditions, ask concerning the interpretation of EU legislation provisions. This consists of doubts {that a} court docket could have concerning the compatibility between the legislation of the state and the provisions of the EU legislation. And this, in flip, in case of incompatibility, could imply that the amnesty legislation should be moved in accordance with the precept of the primacy of the EU legislation, if that is implied by the CJEU in a preliminary ruling on a query of interpretation.

It’s due to this fact additionally clear that this case legislation will have an effect on the Spanish amnesty legislation of 2024. Certainly, it’s the legislation itself which acknowledges that it touches on areas of competence of the European Union legislation and that it’s affected by it. See, for instance, Article 2 of the legislation, which expressly excludes from amnesty areas coated by the Terrorism Directive, crimes affecting the monetary pursuits of the EU and a few areas coated by the Framework Choice on combating sure kinds and expressions of racism and xenophobia via legal legislation. See, moreover, Article 1 of the legislation, which gives amnesty for the offences of misappropriation of public cash within the absence of enrichment, forcing the legislation enforcer to cease and discover out whether or not, with or with out enrichment, the monetary pursuits of the Union are affected. Or lastly, think about how Article 4 expressly refers to European arrest warrants and to Article 267 TFEU, the idea for the preliminary ruling process. 

In conclusion, it’s not solely probably, however doable, that Spanish courts will refer questions of interpretation of the EU legislation to the CJEU for a preliminary ruling after they apply the Spanish amnesty legislation of 2024. It’s also probably, and doable, that the CJEU will handle them, insofar as in earlier case legislation on amnesties it has not declined jurisdiction when the questions referred for a preliminary ruling involved the interpretation of provisions of the EU legislation.

Lastly, it’s not recognized whether or not it’s probably, though it actually appears doable, that along with the varied Spanish judicial our bodies which, having doubts of interpretation, may ask questions for preliminary rulings, the Courtroom of Auditors may additionally accomplish that. Though the Courtroom of Auditors doesn’t belong to the judiciary, however is an impartial physique linked to the Spanish Cortes Generales, it has all of the traits that the case legislation of the CJEU requires with the intention to ask questions for preliminary rulings: it’s a physique created by legislation; it has a everlasting nature; its jurisdiction is obligatory; it guidelines in accordance with an adversarial process; it applies authorized guidelines; and it’s impartial in nature. And, most significantly, because the court docket earlier than which accounting legal responsibility is introduced, it’s maybe the one to which most questions could come up in relation to the affect on the EU’s monetary pursuits.


[1] This commentary is a part of the analysis mission “La configuración europea del estado de derecho: Implicaciones en el ámbito nacional” (PID2022-137789NB-I00), funded by the Spanish Ministry of Science and Innovation.

[2] Out there at: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2024-11776.

[3] ECLI:EU:C:2021:339.

[4] ECLI:EU:C:2021:1016.

Image credit: by Mikhail Nilov on Pexels.com.

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