A preliminary report endorses the constitutionality of the rule, but recommends more dialogue and participation
The Venice Commission, the Council of Europe’s consultative body on constitutional matters, has issued a preliminary report on the amnesty law being processed in the Parliament of Catalonia. In the document, the Commission considers that the rule is viable and does not violate the separation of powers. However, it also makes a number of observations and recommendations about the procedure, criteria and scope of the law, which it considers can improve its legitimacy and proportionality.
The preliminary report will be discussed on March 15 and 16 at a meeting of the Venice Commission, where amendments and changes may be introduced. Afterwards, the final text will have to be voted on in the plenary session of the European body.
The Venice Commission defends the constitutionality of the amnesties, but leaves the decision to the Constitutional Court
The Venice Commission recalls that amnesties are measures that must conform to the Constitution and that the control of their constitutionality corresponds to the bodies and procedures established by domestic and international law, especially human rights law. In this sense, the Commission does not assess the compatibility of the amnesty law with European Union law, nor its conformity with the Spanish Constitution, since this is a competence of the Constitutional Court.
The Venice Commission recognizes that amnesties are often motivated by social and political reconciliation, which are legitimate goals, but which require a process based on inclusion, participation, an appropriate timetable and public debates. For this reason, the Commission questions the advisability of processing the amnesty law through the emergency route, since this may affect its transparency and social acceptance, taking into account the long-term consequences and the often controversial nature of these laws
The Venice Commission asks that the criteria of the amnesty law be neither personalized nor arbitrary
The Venice Commission points out that amnesties are impersonal measures that apply to all people or to certain categories of people, and that therefore the criteria that define them must not be personalized or arbitrary. The Commission insists that amnesties must have a legitimate aim in the interest of the community, and that in this case, national unity and social and political reconciliation can be legitimate aims. However, the Commission also requires that proportionality implies that, in each specific case, the proposed amnesty is an appropriate means of ultimately achieving unity and reconciliation.
The Venice Commission notes that the amnesty bill has been presented with limited consultation of the public, interested parties and other State institutions, causing a deep and virulent division in the political class, in institutions, in the Spanish authorities and in society. For this reason, the Commission encourages taking the necessary time to establish a meaningful dialogue in a spirit of loyal cooperation between the institutions of the State and the opposition, with the aim of achieving social and political reconciliation.
The Venice Commission makes three recommendations on the material and temporal scope of the amnesty law
The Venice Commission makes three specific recommendations on the material and temporal scope of the amnesty law. First of all, it recommends defining more precisely the material and temporal scope of application of the rule, to make the effects of the law more predictable. Second, it calls for a closer casual nexus to be established between the November 9 and October 1, 2017 sovereign consultations, their preparation or their aftermath, and acts of embezzlement and corruption. In a third place, the body recommends eliminating the criteria of the final sentence for the exclusion of terrorism crimes.