Although the Spanish justice and presidency minister has tried to add water to the wine of the decree law that has been published in the middle of the Christmas holidays, and which may seriously affect the amnesty for the Catalan pro-independence leaders, he, Félix Bolaños, knows by now that Together for Catalonia (Junts) will not vote for it and, as for the Republican Left (ERC) and the Basque Nationalists (PNV), it remains to be seen. He will have to turn to the People's Party (PP) or Vox if he wants to push it forward through the approval process and accept the consequences that may arise; or if not, change it to a full legislative bill and allow amendments to be submitted.
It is an authentic ticking time bomb that has been planted by the presidency department in its decree law, taking advantage of an alteration to the law on civil prosecutions and which, in practice, will turn the amnesty law, currently being debated by the Congress of Deputies, into waste paper. The decree law is booby-trapped by its provision for sending a preliminary question to European justice on each beneficiary of the amnesty for whom the Spanish courts consider it appropriate.
The Spanish government will say what it wants over this, but experts in the field, both in criminal law and European legislation, predict that the Catalan independentists whom the amnesty is intended to serve will be affected as follows: a judge will begin asking to resolve preliminary questions, a response will be received from Europe within the usual period, which could be 18 months, and then, it's possible in the way these things go that another judge will take over - which will mean, yes, issuing another new request to Europe or asking for clarification. All this, in a carefully-judged relay race that the courts will appropriately sequence together.
The pro-independence parties, while this happens, will be hostages, not of an amnesty law, which will have been duly passed in accordance with the political pacts signed, but of a collateral decree law that today is presented as something required by Europe in order for Spain to receive financial aid, without further explanation. It may be the case that for the independence process leaders, or any of those prosecuted for whom the judges demand it, no amnesty will be obtained until most or even all of the four-year legislature has elapsed.
The Spanish government is thus opening a way for the non-application of the amnesty
Thus, voluntarily or involuntarily, the Spanish government is opening a way for what some have already spoken of, which is nothing other than the non-application of the amnesty. There will be abuse by the judges, as some have already announced, or by the judicial associations themselves. In addition, it raises a substantive issue in criminal law which is scarcely minor: could it be that doubts held by a judge, as well as the obligation to raise them, cause an affected person to remain in prison or subjected to restrictions of fundamental rights? Is this what is being sought? Another question altogether is in other areas of the law, but regarding criminal justice, there is more than enough reason to send the decree law through the amendment process and reject the validation that the Pedro Sánchez government intends.
The fact that the reform of the Spanish justice system is an imperative and urgent need and that there are positive aspects in the royal decree law is no reason to sign a blank cheque, given the arbitrariness and abuse that is observed. It lays the foundations for the total control of the administration of justice, but especially of those who are being judged, it generates undue access to a great deal of citizen information and the intention of many of its provisions is, to say the least, confusing. In short, reform yes, but also debate. Drink it down? Under no circumstances. It must face an ordinary legislative procedure in Congress with all the necessary amendments.