The alarming circular argument of one of the EU's advocates general on amnesty

Today, the rule of law has been slightly weakened in Spain due to two reports from the Advocate General of the European Union.

Amnesty, the greatest act of corruption in the entire history of democracy in Spain
Statement of the General Council of the Judiciary of Spain against the amnesty: it is “a serious violation of fundamental rights”

A advocate whose actions led to the release of 60 ETA terrorists in 2013

These reports are the work of one of the EU's eight advocates general, Dean Spielmann of Luxembourg. His appointment to issue reports on the amnesty law that granted criminal privileges to the separatist partners in Pedro Sánchez's government should have raised concerns. As Pablo Planas recalls, Spielmann presided over the Court of Justice of the EU (CJEU) that overturned the "Parot doctrine", releasing 60 ETA terrorists in 2013. Specifically, Spielmann presided over the chamber that reviewed the appeal filed by Spain against a CJEU ruling that required the release of an ETA terrorist and compensation for "moral damages".

The disservice Spielmann is now doing to the rule of law

That ruling caused great pain to the victims of terrorism. Today, Spielmann does a disservice to the rule of law itself with two lax reports that endorse almost all the positions of the Sánchez government, except for the one concerning the deadlines imposed by the amnesty law on judges to review the application of that law to each case. The most worrying thing is that, although they are not binding, the CJEU usually takes the opinions of the Advocates General very seriously in complex cases, so it is very likely that the court will end up endorsing their conclusions, which would imply blessing the biggest act of corruption in the history of democracy in Spain: the granting of criminal privileges in exchange for support for Sánchez's re-election in 2023 after having lost the general elections that year.

The Spanish judiciary strongly criticized that amnesty.

Let us recall that the General Council of the Judiciary (CGPJ) gravely condemned this amnesty, stating that it is "a serious violation of fundamental rights and of the very system of separation of powers that inspires our Constitution and on which the rule of law is based." This condemnation contrasts sharply with the lax stance of the Luxembourgish lawyer regarding the granting of penal privileges in exchange for political favors.

Spielmann's mild objections to the amnesty in his reports

The reports presented today by Dean Spielmann are two: the first responds to the allegations of ACVOT, the Catalan Association of Victims of Terrorist Organizations (here is the press release and here is the report), and the second in response to SCC, the Catalan Civil Society (here the press release and here the report).

It should be noted that the only report by the Advocate General that raises objections to the amnesty law is the second one, which considers that "certain provisions of the Spanish amnesty law on exemption from liability in respect of public funds may be incompatible with the right to effective judicial protection." Regarding the time limits imposed on judges by the LOA, the press release for the second report states: "The Advocate General states that a time limit that is excessively short and restrictive may infringe the requirement for judicial independence." But it immediately adds: "the Spanish
Government stated that the time limit in question is purely indicative, which was not refuted by any of the interested parties."

A circular argument that blesses what a parliament votes for simply because a parliament votes for it.

After reviewing both reports, something particularly struck me in Spielmann's first brief. The Luxembourg advocate raises the possibility that the LOA constitutes a self-amnesty, which would conflict with European law. In point 92, Spielmann states: "there is no basis for describing the LOA as self-amnesty in the present case, for a number of convergent reasons. In the first place, the law at issue is the result of due parliamentary process, conducted within a pluralist democratic system. It is not the result of a unilateral act imposed by an authoritarian power, but of a democratic debate and vote within the Cortes Generales (Spanish Parliament)."

This argument is astonishing. It considers the LOA not to be a self-amnesty law because it was not issued by an "authoritarian power", but rather the product of a "democratic debate," as if that automatically validated a law's compliance with European law. There is an obvious objection: no EU member state is an authoritarian regime, so any amnesty passed in an EU country would benefit from that argument, even if it seriously violated European law. It would suffice for a parliamentary majority to have approved it. This is an alarming circular argument that blesses any amnesty passed by a parliament, simply because it was passed by a parliament. It is regrettable to read something like this in an official report by an EU Advocate General.

Spielmann denies the evidence by rejecting that this is a self-amnesty

Furthermore, in point 95 of his brief, Spielmann adds: "the case file does not show that the persons benefiting from the amnesty are themselves members or representatives of the government or legislative authority behind the adoption of the LOA, and therefore there is no direct link between the exercise of political power and the benefit of the measure. Accordingly, it cannot be argued, in my view, that the LOA is a self-amnesty."

This paragraph is comical considering that the amnesty was demanded by Sánchez's separatist partners in exchange for their support of his reelection, a reelection that would not have been possible without the granting of this penal privilege. Obviously, Sánchez has benefited from this amnesty because it has allowed his reelection as Prime Minister after losing a general election. This is a clear case of exchanging penal privileges for government support, something the European Union should condemn harshly because it is a clear example of political corruption.

Instead, what the aforementioned lawyer of the CJEU does is deny the evidence, that is, the benefit that granting that amnesty to his parliamentary partners meant for Sánchez.

If the CJEU endorses that document, it will be the end of the rule of law in the EU.

That document should make us fear the worst possible outcome in this matter. If the CJEU endorses that argument, then the rule of law in the EU will be finished. Any government will be able to trade criminal privileges in exchange for support for the re-election of its members without deserving any reproach from the CJEU. It is the death of equality before the law for all citizens, which is one of the pillars of democracy. In this respect, Spielmann's report is outrageous and highlights the degradation of European institutions. How can we trust the EU if those who are supposed to uphold the rule of law do these things? Then they will complain about "Euroscepticism," when they themselves are the ones fueling it.

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Photo: Claude Truong-Ngoc.