Jurists agree that there are "doubts" and "controversy" about the possible legal fit of an amnesty with the 'process'

They point out that it could violate the powers of the Judiciary, introduce inequality and generate legal uncertainty

MADRID, 19 Ago. (EUROPA PRESS) -

Constitutionalist experts agree that there are "doubts" and "controversy" about the possible legal framework of an eventual amnesty law for the independence leaders investigated by the 'procés' and the unilateral declaration of independence. They assure that there are those who see this measure contrary to the Constitution and those who consider that the Magna Carta does not expressly prohibit it; They specify, however, that everything will depend on how it is drafted and processed.

In statements to Europa Press, Xavier Arbós, professor of Constitutional Law at the University of Barcelona, ​​recalls that there are those who maintain that the amnesty fits in the Constitution because, although it prohibits general pardons, "an amnesty is different from a pardon". On the contrary, he points out that there are those who consider that it is unconstitutional because the Magna Carta attributes to the Judiciary the competence to judge and believes that the amnesty, in practice, erases this action from the courts.

Miguel Presno Linera, an expert in Constitutional Law and professor at the University of Oviedo, acknowledges that there is controversy about the fact that the term "amnesty" is not mentioned in the Constitution, because there is a debate about whether this should be understood "as a prohibition or like permission."

For his part, Carlos Vidal, professor of Constitutional Law at the National Distance Education University (UNED), has fewer doubts and considers that an eventual amnesty for those investigated and convicted of the 'procés' would introduce "inequality" because it would allow the application of the law for some and not for others for the same acts that are punishable in the Penal Code.

"The law continues to exist, but you make a law (of amnesty) to say that such articles do not apply to certain people," says Vidal while stressing that this would imply a violation of a fundamental right of all other people. "It is not a matter of repealing a criminal law, but of ceasing to apply it in certain cases. Justifying this is complicated. The proportionality trial is very complicated," he adds.

Arbós, who stresses that he does not enter into assessing whether or not it would be opportune to draft said law, considers that it could be understood "contrary to the Constitution because it affects the Judiciary".

"Those who maintain that it would be constitutional have the argument that the Constitution does not prohibit it. This argument does not finish convincing me," says the jurist and explains that he has doubts about the legal reserve because the Magna Carta contemplates the power to judge judges and courts and the amnesty, in a certain way, affects said power.

In this sense, it points out that, unlike a pardon -with which a court can see that the fulfillment of the sentence is eliminated, but the sentence or the legal truth is not eliminated--, the amnesty "erases entirely" judged it. Presno Linera agrees and considers that the amnesty "could go against the principle that it is the exclusive responsibility of the courts to judge and enforce what has been judged."

In line, Arbós mentions another aspect that, in his opinion, could pose a "problem". He points out that a possible amnesty law for those prosecuted and convicted of the 'procés' could be applied, "with many quotes", to the "other side", in reference to the police officers and civil guards who have proceedings initiated for their behavior on 1-O.

On this point, it ensures that the right to effective judicial protection of those people who took legal action in court against law enforcement officers for alleged crimes of injury could be affected.

Even so, Arbós reiterates that a possible amnesty law is a "technical question" that for him "is not clear." But he insists that although it is a matter that is now filling the political debate "in the strictly academic level it is quite old."

On the sidelines, the professor stresses that "any law is constitutional as long as the Constitutional Court (TC) has not ruled declaring it unconstitutional." In this sense, it recalls that in the event that said norm is signed, it is possible that the Ombudsman, an autonomous community or a group of more than 50 deputies may present an appeal of unconstitutionality before the court of guarantees, which would rule to resolve this "controversial" issue.

In line, Presno Linera recalls that the Constitutional Court ruled in 1986 and admitted that there could be an amnesty, something that --in his opinion-- would lead one to think that it would not be prohibited in any case. "What happens is that the Constitutional Court itself, in that sentence, attributes a totally exceptional character to it and in reality what it does is link it to the amnesty of 1977 itself," he points out.

Thus, he considers that "in the best of cases the legislator would have an exceptional power and, therefore, would have to justify said amnesty law." In addition, he emphasizes that "this law would be constitutional if it does not violate any other type of right or constitutionally protected good."

In this sense, Presno Linera finds it "very difficult to justify an amnesty that consists of excluding the prosecution of certain criminal behaviors" because "it could affect the right to effective judicial protection of the people harmed by the facts."

For his part, Vidal assures that said law would also introduce "legal uncertainty" because "essential assets such as the constitutional order are left unprotected." And he also stresses that "it must be taken into account" that up to now the amnesty "has only been applied in a situation of transition from dictatorship to democracy." "If we are now in a democracy, are we saying that the application of the Penal Code is improper? It is a contradiction," he says.

It should be remembered that the Table of Congress rejected in March 2021 to process an amnesty law proposed by the Catalan pro-independence parties with which it intended to grant amnesty to all those prosecuted and sentenced for the Catalan sovereignty referendum and the pro-independence process of the October 1 referendum of 2017.

The governing body of the Chamber then relied on the report of the lawyers of Congress and -with the votes of PSOE, PP and Vox- rejected the initiative, considering it unconstitutional. The formations promoting the law filed an appeal against that decision, but in May the Board confirmed its rejection.

Although the Catalan independence parties have included the debate on a possible amnesty law at the negotiating table to gather the necessary support for the investiture of Pedro Sánchez, the spokesman for the Socialist Group in Congress, Patxi López, has denied this Thursday that his formation has promised ERC and Junts amnesty for those involved in the 'procés'.