Amnesty and the European Union

It is fascinating to note that when a certain legal issue has political relevance, the interpretations provided by the “Academy” are suspiciously coinciding with the political tendency of the corresponding academic. Except honorable exceptions. For example, on the occasion of the supposed amnesty of the politicians involved in the procés, some -like my beloved Manuel Aragon- point out that it opposes the constitutional principles, that it attacks the principle of equality and the division of powers, that the minor is prohibited (the general pardons). or that it only proceeds against unfair law, and that is not the case. Silva Sanchez, emphasizes that pardon and amnesty are different (one comes from the executive branch and the other from the legislative branch, and there have been some like the prosecutors) but they demand a budget of the past (that brings peace after a situation of unjust law) and another of the future (that, for example, will be the case of the government. promote catalan constitutional loyalty in the future), none of which is given. Others see it constitutional but politically wrong. And the usual suspects see no problem and highlight the ability of the courts to approve anything not expressly prohibited.

In my view, the key to all this is not a subtle discrepancy about the letter of the Constitution. Sometimes the law prevents justice. The essential thing is that amnesty is not intended for a reason of general interest of peace or justice, because everyone – the ordinary citizen – knows that the interest is as particular as obtaining seven seats to achieve the investiture. The conflict of interest is a classic of law: The proxy cannot buy what is in charge of selling, the notary authorizing the will cannot inherit the testator; It is contrary to the principle of equality a social agreement that favors some shareholders against others to remain in office … These actions are prohibited in private law and, of course, in public law: we all know that the councilor of urbanism who requalifies his own plot or who charges for requalification is doing something very ugly, because the general interest is the basis of action of all public authorities and no one can make a decision in an act that benefits it.

In any rule of law such an amnesty would have a bad legal path, in my opinion. The problem is that ours is in reserved forecast by the partisan invasion of all the counterweights to power and by the populist virus that makes the infected consider that what “the people” or even the parliament decide is above everything. It is not necessary to recall the painful colonization of the Constitutional Court. “We are all equal before the law, but not before those charged with enforcing it,” said Stanislav Jerzy Lec.

That is why I would like to highlight a hopeful aspect, which some experts suggest to me: The application of European law. As in the famous film, we will always have Paris (read Brussels). We are largely governed by the European Union (EU), whose institutions have something to say about it, especially the Commission, as guardian of the Treaties. Since the accession of the countries of Central and Eastern Europe, the EU has developed a policy to defend the rule of law, one of the essential elements that define the European project (Article 2 TEU). The cases of Hungary and Poland, where their governments have weakened the separation of powers and have attacked some fundamental rights (academic freedom, freedom of expression…) have been the most visible.

The Commission’s communication with respect to the 2020 Rule of Law Report stated as indispensable elements of this the principles of legality, which implies a transparent, democratic, pluralistic and accountable process of promulgation of laws; legal certainty, which prohibits the arbitrary exercise of the executive power; effective judicial protection by independent and impartial courts and effective judicial control, including the protection of fundamental rights; separation of powers; and equality before the law. You can assess whether the issue we are raising concerns these points.

In fact, in 2019 a case took place in Romania that illustrates very well how the amnesty projected in Spain can be evaluated by the EU. This eastern country was starting the rotating presidency of the Council of the EU. At the same time, the Social Democratic government was issuing an emergency decree to facilitate an amnesty that decriminalized some forms of corruption (for example, falsifying the result of an election) and benefited some politicians convicted of such crimes, including the promoter of the law, who was responsible for the crime. The social democratic leader Liviu Dragnea.

The then Commission President, Jean-Claude Juncker, had already expressed doubts in an interview with a German newspaper that the government of Bucharest was prepared for the European presidency and that it understood what this task means.

The Commission stated that the bill in Romania crossed a red line. In January 2019, Juncker visited Bucharest and called on the government to stop a measure contrary to essential elements of the EU, such as respect for the rule of law. Juncker stressed at a joint press conference with Romanian President Klaus Iohannis that “it would be a step into the past” (…) “Although the EU is built on pacts, there can be no negotiations on legal principles”. He ended his words by saying: “I don’t think the prime minister wants to overshadow the Romanian presidency of the EU Council by exporting internal difficulties to Europe.” The spokesman of the Commission, now a member of the College of Commissioners, Margaritis Schinas, declared from Brussels that “President Juncker had been totally clear on the issue of possible amnesty. Romania should once again concentrate on fighting corruption, ensure an independent judiciary and avoid any step backwards.”

It is sad that all this coincides with the Spanish Presidency. And while we should not rely on other instances to solve our problems, we must know that we are part of something bigger. “Justice lies in fairness and only strangers are impartial,” said Bernard Shaw. And, although it is not surprising, the European Union is impartial and has mechanisms in place to demand respect from its members for the rule of law: From the application of Article 7 to the conditionality of European funds.

Civilization is the victory of persistence over force, says Plato. Let us trust that we, with the necessary help, will know how to persist.

This article was published in VozPopuli on September 13, 2023.