The European Commission for Democracy Through Law of the Council of Europe, better known as the Venice Commission, adopted today, during its 138th plenary meeting, an opinion on the rule of law requirements of amnesties, with particular reference to the parliamentary bill "on the organic law on amnesty for the institutional, political and social normalisation of Catalonia".
The opinion was prepared in reply to the requests by the President of the Parliamentary Assembly of the Council of Europe for a study on the rule of law requirements that an amnesty should fulfil and by the President of the Senate of Spain for an opinion in reply to six questions concerning the parliamentary amnesty bill submitted to the Congress of the Deputies of Spain. The Venice Commission analysed the relevant provisions of the amnesty bill in its version of 13 November 2023. It took into account to a certain extent also the amendments adopted by the Congress of Deputies on 14 March 2024.
When preparing its opinion, the Commission carried out its legal analysis in light of European and international standards and comparative material. It has not commented on the amnesty bill´s desirability, nor on its suitability to achieve its stated aim, as it considers these are political decisions for the Spanish Government and Parliament to take. As per its usual practice, the Venice Commission has not commented on the constitutionality of the amnesty bill, which is ultimately for the Spanish Constitutional Court to decide, nor on its compatibility with EU law, which could be subject to a judgment of the European Court of Justice.
In the Venice Commission's view, amnesties should meet several rule of law requirements, including: legality and supremacy of the law, entailing, preferably, approval by parliament with appropriately large majority and in all cases compliance with the Constitution; respect for international law - in particular human rights law -; legal certainty, hence clarity, determinacy, accessibility and foreseeability of the provisions; equality in law; independence of the judiciary and separation of powers.
Amnesties are generally motivated for reasons of social and political reconciliation. However, these legitimate goals require to be attained through coherent methods and procedures not to frustrate their purpose: They should be inspired by inclusiveness, participation, an appropriate timeframe and public discussions. Consequently, fast-tracked legislative procedures are not appropriate for adopting amnesty laws, given their far-reaching consequences and often controversial nature.
As, by definition, amnesties accord special benefits to a specific group of individuals who qualify under the law, the Commission stresses that to avoid arbitrariness there should be consistency in determining which acts are covered by amnesty, and there should be an intrinsic causal link between them. In addition, amnesties are impersonal measures applying to persons or certain classes of persons: therefore, the criteria they are based on should not be designed to cover specific individuals.
The Commission underscores that amnesties should pursue a legitimate aim in the community's interest and specifies that national unity and social and political reconciliation can be considered among those legitimate aims. Proportionality requires that, in each given case, the proposed amnesty should be a suitable means to achieve unity and reconciliation. Furthermore, the opinion underlines that while elected bodies dispose of a margin of appreciation in judging whether an amnesty is an efficient tool, or whether other options such as pardons and/or amendments to criminal legislation could be better pursued, amnesties should be adopted with an appropriately large qualified majority, insofar they may have very divisive effects in the society.
Concerning the independence of the judiciary and the separation of powers, the opinion notes that amnesties have the effect of nullifying or preventing judicial decisions and procedures. In the Commission's view, to be consistent with the principle of separation of powers, the judiciary should be entrusted to decide whether specific individuals fulfil the general criteria determined by Parliament for applying the amnesty.
As concerns the material and temporal scope of application of the amnesty bill in Spain, the Venice Commission reiterates that an amnesty should not be designed to cover specific individuals and makes several recommendations:
- To narrow down and define in a more precise manner the material and temporal scope of the application of the amnesty to make its effects more foreseeable.
- To ensure that a closer causal link is established between "the consultations held in Catalonia on 9 November 2014 and on 1 October 2017, their preparation or their consequences" and the acts of embezzlement and corruption.
- As regards terrorism, to make sure that in the interpretation of the exclusions, the guiding principle will be that amnesties are only compatible with international standards if serious human rights violations are excluded from their scope of application.
Regarding the derogations to the ordinary procedural powers of the courts resulting from the amnesty bill, the Venice Commission finds that these are the logical consequences of the retrospective erasure of criminal liability. It considers that, as long as the decision as to the individual benefits of the amnesty is taken by a judge based on the criteria contained in the amnesty bill, and the lifting of the arrest, detention and precautionary measures is a consequence of such judicial decision, there is no issue of separation of powers. The amnesty bill should not be interpreted in a way that it deprives the judicial review of the amnesty bill of any practical effect.
As concerns the committees of inquiry set up by the Congress of the Deputies of Spain, the Venice Commission recalls that the main purpose of parliamentary investigative committees is to oversee and scrutinise the work of the executive power. It, therefore, recommends that these inquiry committees should not be given the mandate to summon, nor even to invite judges to report, in particular on the merits of their cases, to anyone outside of the judiciary.
Finally, the Venice Commission observes that the amnesty bill has been presented as a legislative proposal, which is a procedure with limited consultation of the public, stakeholders and other state institutions, and has followed an urgent procedure. It also notes that the amnesty bill has deepened a profound and virulent division in the political class, the institutions, the judiciary, academia, and Spanish society. Consequently, the Commission encourages all the Spanish authorities and political forces "to take the necessary time for meaningful dialogue in the spirit of loyal cooperation among state institutions as well as the majority and the opposition, in order to achieve social and political reconciliation, and to consider exploring restorative justice procedures".
The Commission further recommends to the authorities to attempt to reach a higher qualified majority than the absolute majority of the members of the Congress of Deputies, which is required in the Constitution for the adoption of an organic law.
The as-adopted opinion will be made available electronically on the Venice Commission website by Monday 18 March.
