Statement of the General Council of the Judiciary of Spain against the amnesty: it is “a serious violation of fundamental rights”

@ElentirENG ES 11·06·2023 · 22:34 0

The General Council of the Judiciary (CGPJ), the highest body of the judiciary in Spain, today approved an unprecedented statement.

More than 1,300 judges in Spain denounce that Sánchez's amnesty means “blowing up the rule of law”
November 6: images of the protests against the amnesty in several cities in Spain

The document harshly rejects the amnesty announced by Pedro Sánchez, denouncing that it is "a serious violation of fundamental rights and of the very system of division of powers on which our Constitution is inspired and on which the rule of law is based". The text has been approved with 9 votes in favor, 5 against and one blank. You can read the full text of the declaration here, translated into English:

Institutional statement of the Plenary Session of the CGPJ (November 6, 2023)

I

The General Council of the Judiciary has been observing with growing concern the statements of members of some minority political parties, some of them with government responsibilities, regarding the possible amnesty for crimes committed during the episodes. that occurred on October 1, 2017, as well as those also committed previously for its preparation, including corruption crimes, and those that were also committed subsequently to oppose the legitimate action of the State to bring its perpetrators to justice. justiceand restore the disturbed public and constitutional order.

To the extent that these statements were not supported by a statement from the acting President of the Government, this Council has preferred to maintain an attitude of cautious expectation. The silence of the acting President of the Government, however, was broken last Saturday, October 28 and in a widely publicized personal statement he stated two things: the first, that he has effectively agreed upon an amnesty law with political parties that includes, among others, the one led by a fugitive from justicewho will personally benefit from the measure; the second, that the measure will be adopted in the “interest of Spain” to prevent a possible government of right-wing parties in the event of a repeat election.

II

Given the comments made in recent hours about the untimeliness of this declaration under the argument that this Council should have waited to know the text of the bill to issue its opinion, we affirm both our legitimacy and the opportunity to do so now.

The legitimacy to speak out in relation to legislative initiatives such as those relating to an amnesty law not only results from art. 561.1.8ª LOPJ, but is also part of the European standards on judicial independence. As pointed out by the Consultative Committee of European Judges, an advisory body to the Council of Europe, an international organization of which Spain is a part, “40. Parliamentarians and members of the executive branch must, of course, respect the law in their relations with the Council of Justice and not infringe its role and its functioning by violating or circumventing legal rules. Furthermore, relations with the Council must be based on a culture of respect for the rule of law and the role of the Council of Justice in their respective member state. - 41. The Councils of Justice must actively participate in dialogue with the other powers of the State. , especially when they make contributions to legislative projects. This dialogue must take place in an atmosphere of mutual respect” (Opinion of the Consultative Committee of European Judges of the Council of Europe no. 24-2021). It cannot be considered in any case unrelated to the functions of the Councils of Justice, nor of course this General Council of the Judiciary, raising its voice when democracy, fundamental freedoms and the rule of law may be in danger.

Faced with such a transcendental initiative, reasons of prudence and institutional loyalty justified its processing as a bill and not as a proposal to give the State's advisory bodies the opportunity to issue their technical opinion. It's not going to be like that. The parties that promote the legislative initiative, the same ones that support the action of the acting Government, announce that they have opted for the parliamentary procedure that allows such reports to be dispensed with. It is therefore absurd that we are asked to wait to do something that could not be done because the path that prevents it has been deliberately chosen.

This declaration is not intended to replace the report that is avoided by the processing route chosen for the legislative initiative, but is issued due to the impossibility of formulating it. And to do so it is not necessary to know the objective and subjective aspects that will delimit the contours of the law that is announced. It is not necessary because the substance has already been announced by the different political leaders who are negotiating the future law, among them some with responsibilities pending to be elucidated before the courts and who are negotiating and determining their own exemption from liability. >. And to this we must add that, in any case, the approval of an amnesty law, whatever its foundation, and whatever its objective and subjective aspects, comes into conflict with various constitutional principles , as will be shown below, among them the exclusivity of jurisdiction, which justify this Council, as a constitutional body whose essential mission is to ensure judicial independence, to express its concern regarding the imminent processing of that matter.

III

This institutional declaration is based on a series of considerations that constitute its foundation: on the one hand, that fundamental rights bind all powers (article 53 of the Constitution); on the other hand, that the granting of an amnesty in our current constitutional system constitutes a serious violation of fundamental rights and of the very system of division of powers on which our Constitution is inspired and on which the Rule of law. This constitutional body cannot remain silent in the face of an initiative such as the one referred to, due to the serious consequences it has on the very configuration of the Judicial Power that is made in the Constitution, source of legitimacy of all the powers of the State that conditions the exercise of its powers.

This Council does not discuss the powers of the parliamentary groups with representation in the Cortes to make any law proposals they consider pertinent; But neither can it accept that an initiative is undertaken that so ostentatiously curtails the fundamental rights of citizens and the powers that the Constitution reserves to the Judiciary. And this is affirmed without prejudice to the specific content of the aforementioned proposition, because such clear constitutional breaches are produced by the mere fact of enacting a law - which must be organic in nature - that grants an amnesty.

Without prejudice to the debate on whether the institution of amnesty can be constitutionally admissible – in the more than forty years of the Constitution's validity, the most established parties have been maintaining that it is not admissible, as is the most authorized constitutionalist doctrine – it is true that there is no Amnesty Law in our system, which will force the projected amnesty that is intended to be submitted to the Cortes to be a singular law that, always according to the words of the acting President of the Government, would aim to solve the Catalonia's conflict with Spainand de-judicialize the aforementioned "political conflict in Catalonia."

The link to the aforementioned conflict with the projected amnesty places, if not the genesis of that conflict, at least the maintenance of it, within the scope of the Courts. With this idea, which inspires the promise of initiative, it is forgotten that the intervention of the Courts in the events that occurred in Catalonia since 2013, or even since 2006, has been, so refers to the Constitutional Court, to the defense of the Constitution that is entrusted to it by constitutional mandate. With regard to the Courts of Justice (Supreme Court, National Court, Superior Court of Justice of Catalonia, Provincial Courts and Courts of said Community), especially, but not only, those of the criminal order, they have been limited to the prosecution and punishment of the crimes that were committed in relation to the aforementioned events, as, on the other hand, was its constitutionally imposed task. These actions have been carried out with a procedural neatness that has involved the confirmation of all its decisions in the appropriate procedural channels.

An amnesty law such as the one announced by the acting President of the Government can only have the objective of nullifying the decisions - generally in sentences - adopted by the Courts in relation to the aforementioned facts of the alleged conflict. Catalan. That is to say, purely and simply, a law of these characteristics can only mean declaring the nullity of those decisions. In other words, that the Cortes would come to influence the Judiciary by declaring the nullity of the sentences handed down by the courts that are part of it.

The fact that in our Law there is no Amnesty Law, as already stated, means that an amnesty such as the one announced can only be granted through the promulgation of a singular law in which such declaration is made. In other words, through this (singular) law the sentences handed down by the different Courts would be declared null and this (singular) law would invade the powers that, exclusively (article 117-3 of the Constitution), the Courts are entrusted with.

It is true that the amnesty, by its very nature, involves nullifying jurisdictional decisions, but in the case of the projected bill it is not a law of that nature, but, for not exist prior recognition of the institution, agrees to directly grant the amnesty to specific and determined people (all those who intervened in the "conflict") for specific and determined acts (all those executed in that "conflict" that constituted a crime according to the ordering) and for a specific time (the period in which the conflict was generated and developed), so it is a decision of the Courts that invades very specific powers of the Courts, the annulment of sentences, through an ad hoc law.

The singular laws, although the jurisprudence of the Constitutional Court does not declare them contrary to the Constitution, does consider them to be an institution of very restrictive and exceptional use, because it denaturalizes the characteristics of the law, which is governed , among other characteristics, due to the generality of its effects and, in addition, it limits the fundamental rights of judicial protection and the various fundamental rights affected by said laws; hence the need for this exceptionality to require a special and specific motivation that justifies its necessity and reasonableness. It is one of the cases in which the legislative power requires a specific motivation, which is not required, in general, for the laws approved by the Cortes, which have as limits the requirements imposed by the Constitution, the only norm that binds the Legislative Power. .

In the case of the announced bill, to the extent that it affects – declaring its radical or full nullity – on final sentences handed down by the Courts, it entails an inadmissible invasion of our Constitution, specifically, of the powers that, in an exclusive regime, the Supreme Rule entrusts to the Courts. And this invasion by a law of these characteristics cannot be legitimized, even by a motivation that could be considered reasonable, because there is no admissible reason why, through this type of law, Parliament can arrogate to itself powers that the Constitution entrusts to the Courts. Parliament could, if our Constitution really legitimized it to do so, approve an amnesty law with the characteristics of every law, which is its imperativeness, generality and abstraction; and, in application of this specific regulation, adopt the decision to apply the amnesty to specific and determined cases and with the effects already contemplated in the general law that, on the other hand, the same Courts must apply. What is not admissible is that an ad hoc law recognizes the institution for its application to a specific and determined case.

A law of these characteristics cannot have any foundation or reason and the arguments for its motivation will be vain. The Constitution not only configures the rule of law that inspires it under the principle of separation of powers, but, specifically, it tries to preserve that none of the powers invade the powers constitutionally assigned to another . In a particular way – as happens with the same name as Power exclusively to the Judiciary – the constituent had special efforts to guarantee, in favor of the citizens, the powers of the Courts and Tribunals and brought to article 117-3º the axiom [«il n 'and a point encore de liberté si la puissance de play n'est pas separeé de la puissance lesgialtive et de l'execurice' ('there is no freedom if the power to judge is not separated from the legislative and executive power')] that "the exercise of jurisdictional power" corresponds "exclusively" to the Courts; that is, judge and execute what is judged. If it is authorized that by means of singular laws a no minor facet of that power can be altered such as that of executing what is judged, through the particular declaration what was declared in a final sentence will be left without effect, such as an amnesty ad hoc, there would be a very dangerous interference of the Legislative Branch in the Judicial Branch, altering the requirement of the separation of powers and, with it, the essential principle of the Rule of Law that our Constitution guarantees. Parliament cannot, by a minimum of constitutional logic, assume, under the protection of temporary majorities - which are depositaries, but not holders of national sovereignty -, to influence specific sentences of the Courts declaring its nullity, whatever the motivation behind that declaration.

IV

Having stated the above considerations, the General Council of the Judiciary expresses with this declaration its intense concern and desolation for what the projected amnesty law represents the degradation, if not the abolition, of the rule of law in Spain , which from the moment it is adopted will become a mere formal proclamation that will inevitably have to produce consequences to the detriment of the real interest of Spain.

Having stated the above considerations, the General Council of the Judiciary expresses with this declaration its intense concern and desolation for what the projected amnesty law represents the degradation, if not the abolition, of the rule of law in Spain , which from the moment it is adopted will become a mere formal proclamation that will inevitably have to produce consequences to the detriment of the real interest of Spain.

Confusing the “interest of Spain” with the interest of the acting President of the Government to avoid the hypothetical formation of governments of parties with an ideology different from their own is something manifestly incompatible with political alternation , based on the basic principle of political pluralism which, according to article 1 of our Constitution, is a superior value of our legal system. But doing so excepting the application of the law to prevent the ongoing action of the courts or annulling the action that has already taken place through final rulings, turning these rulings into empty paper, is something flatly incompatible with the principle of the State. of lawin which, again according to article 1 of our Constitution, Spain was intended to be established and in fact it was established... at least until now. Using the promulgation of a singular law to invade the powers of the Judiciary as a means of political negotiation, constitutes a perversion of the constitutional regime, because nothing would prevent temporary majorities in the composition of the Cortes from imposing their criteria by above the constitutional requirements, under the protection that a norm with that rank cannot be questioned by citizens.

This is so, first, because it is not compatible with the principle of the rule of law proclaimed by article 1 of our Constitution, and not even with the principle of responsibility of public powers to which it refers. its article 9.3, that political leaders are exempt from answering for their crimes before the courts, whatever the nature of their crimes, so that an aspiring President of the Government can obtain the personal and political benefit of preventing the government of other forces. policies or, expressed by its reverse, to be able to remain in government. This means degrading and turning our rule of law into a marketing object at the service of personal interest that seeks to present itself, from the rejection of political pluralism, as the “interest of Spain.”

Second, because it means generating a political class that is legally irresponsible and unpunished for its crimes which, while not being justified by any constitutionally legitimate purpose, means not only contravening the principle of responsibility of public powers, but even the most basic principle of equality of citizens before the lawproclaimed by article 14 of the Constitution.

Third, because the independence of the courts is violated in its most basic aspect: if independence is the necessary instrument so that the courts can act with neutrality and guarantee, through the effectiveness of their decisions, the principle of legal security, it is difficult to speak of independence or legal security when political forces use the laws for their benefit to prevent the action of the courts. The enormity of the consequences of what has been announced by the acting President of the Government is that it turns the independence of the courts and legal certainty, justice in short, into a chimera.

And, finally, this General Council of the Judiciary cannot fail to point out that what is violated by the measure announced by the President of the Government is not only the Constitution with which we Spaniards as a framework of coexistence, but also the commitments assumed by Spain in articles 2 and 19 of the Treaty of the European Union so that the principles of the rule of law and judicial independence prevail at all times. The risk that the moment will come in which the European Union decides not to be the alibi of a State that does not comply with its principles should be very present, at this critical moment, in the forecast of those who intend to really act in the “interest of Spain”.

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Photo: @PoderJudicialEs.