In agreement with the intention, but questioning the procedure. The Venice Commission, the consultative body of the Council of Europe, has given its opinion on Spain's amnesty bill and presents arguments that both the Spanish government and the pro-independence parties, as well as the strongly opposed People's Party, will be able to present. Regarding the goal that the PSOE sought to reach with the law putting an end to independence process court cases, the Commission endorses the amnesty proposal over its "social and political reconciliation" and "national unity", as it considers that they are "legitimate objectives in the interest of the community". However, the body disagrees on three questions related to the parliamentary procedure it will follow: it disapproves of the fact that it is being heard urgently in Parliament (which cuts in half the time devoted to each step), it criticizes that it is submitted as a parliamentary party's proposal (rather than planned government legislation) and it suggests that a supermajority, that is, support from more than 50% of MPs, should be attempted.
These are some of the conclusions of the final opinion, which is not binding, but was unanimously approved in the session held this Friday in Venice and was attended by the speaker of the Senate, Pedro Rollán, from the People's Party (PP), and the second secretary of the congressional Bureau, Isaura Leal of the governing Socialists (PSOE). This is stated in a press release distributed, ahead of the release of the full report on Monday. The body, which visited Spain on Thursday 8th and Friday 9th February, thus responds to the request made by the Spanish Senate in December and, at the same time, to the request of the president of the Parliamentary Assembly of the Council of Europe, Tiny Kox, to prepare a study on "the rule of law requirements that an amnesty must fulfill".
Regarding the parliamentary process followed by the amnesty bill, the Venice Commission considers, first of all, that "accelerated legislative procedures are not suitable for the adoption of amnesty laws, given their far-reaching consequences and their often-controversial nature”. Secondly, it criticizes the fact that the initiative was registered as a bill proposed by a parliamentary party and not as a legislative initiative of the Spanish government. This has meant that it involves "a consultation procedure limited to citizens, agents and other institutions of the state". Finally, it recommends that the authorities "try to achieve a majority higher than the absolute majority" - that is, more than the current majority required by the Constitution to approve an ordinary law, which means support from more than 50% of MPs. In the Congress of Deputies, supermajorities can be demanded in some circumstances - such as support from three-fifths of the house (210 deputies) or two-thirds (234 deputies).
The Commission also recommends "restricting and more precisely defining the material and time scope" of the amnesty to "make its effects more predictable" and establishing a "closer causal link" between the acts of misuse of funds and "corruption" and the preparation, celebration and aftermath of the public consultations of 2014 and 2017.
Agrees with exclusion of "serious violations of human rights"
In relation to terrorism, the Venice Commission asserts that amnesties "are only compatible with international standards" if they exclude from their scope of application "serious violations of human rights". And what does the Spanish amnesty text say in the end? The wording excludes the law's application to actions that "due to their purpose can be classified as terrorism" according to the European directive on the fight against terrorism, when they "have intentionally caused serious violations of human rights". In particular, it mentions those regulated in international humanitarian law and in Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, referring to the right to life and the prohibition of torture.
No problems related to the separation of powers
The Venice Commission also asserts that the lifting of the arrest warrants and precautionary measures does not affect the separation of powers as long as "it is the result of a judicial decision": it points out that, in order to be consistent with the principle of the separation of powers, "the decision on individual beneficiaries of the amnesty" must be taken "by a judge in accordance with the criteria contained in the amnesty law". It maintains that "an amnesty should not be designed to cover specific people" and argues that, in general terms, "amnesties have the effect of annulling or preventing judicial decisions and proceedings".
What did the Venice Commission study?
According to its statement, the Venice Commission analyzed "the relevant provisions" of the version of the bill of November 13th, 2023, the first text which the PSOE registered alone in Congress, and the body also comments that it "has taken into account to a certain extent" the amendments that were approved last week as a result of the agreement between the PSOE, Junts and ERC. The organization also makes it clear that it does not pronounce itself on "the desirability of the amnesty project or its suitability to achieve the declared objective", given that those are "political decisions", and neither on its constitutionality, which corresponds to the Constitutional Court, nor on its compatibility with European Union law, which could be the subject of a ruling by the European Court of Justice.
PP and PSOE, invited to "meaningful dialogue"
In its final opinion, the Venice Commission acknowledges that the amnesty "has deepened a deep and virulent division in the political class, the institutions, the judiciary, the academic world and Spanish society" and "encourages" all authorities and Spanish political forces to "dedicate the time necessary for a meaningful dialogue in a spirit of loyal cooperation between the institutions of the state", as well as between the Spanish government and the opposition, with the aim of achieving "social and political reconciliation". It also puts on the table the possibility of exploring "restorative justice procedures".
Judges "should not" appear before commissions of inquiry
Finally, the Venice Commission also pronounces on the commissions of inquiry of the Congress of Deputies on Operation Catalonia, the truth of the 2017 terror attacks in Barcelona and Cambrils and the Pegasus espionage against political leaders, activists, lawyers and journalists. It recalls that the main purpose of parliamentary commissions of inquiry is to "supervise and control the work of the executive power" and recommends that they "do not have the mandate to summon, or even to invite" judges to "report on the substance of their cases to anyone outside the Judiciary".