Amnesty within the framework of the European Union

One might think that the European Union has nothing to say about the potential Pedro Sanchez investiture deal in exchange for an amnesty to obtain the necessary votes of Junts, Puigdemont’s party, whose personal situation can be complicated (even more) when he finishes his term as a European parliamentarian. However, I am not so sure that this will be the case. Is the situation of the rule of law in each Member State a strictly national problem? If the rule of law is at risk in one or more countries, what is at risk is the European Union itself.

In this regard, there are some considerations that are relevant. This was assumed, namely that the Member States would respect the fundamental values of freedom, democracy, equality, the rule of law and human rights set out in art. 2 of the Treaty on European Union is no longer guaranteed. If we think that these values constitute their DNA, there must be mechanisms that allow the Union to react when they are breached. We count first with art. 7 of the Treaty (which probably no one thought would have to apply one day) which is a kind of “closing clause” of the system in cases of special gravity. That rule allows proceedings against a Member State to be initiated where there is a clear risk of serious infringement of one of the Union’s fundamental values and may end with a suspension of voting rights.

The European Commission has already activated the procedure of art. 7 In 2014 against Poland, on the grounds that its reforms in the field of the judiciary violated the rule of law, and also against Hungary, in addition to this reason for violation of other fundamental values set out in Article 2.  Because all the rights recognized by the European legal system can become a piece of paper if there are no independent, professional and unmovable courts that can apply it. They are enormously complex procedures that present many singularities, but we cannot take for granted that a “obedient student”, as Spain has been so far, cannot become one of the worst through a process of constant institutional deterioration, that can accelerate very quickly when political necessity becomes acute as we are seeing.

In addition, the Commission has other legal options: It may initiate infringement proceedings to force the State to change its rules for breach of the rule of law. This type of procedure can be initiated by the Commission ex officio or by virtue of a complaint, and the final decision will be legally binding on the State, provided that the High Court of Justice of the European Union confirms it (which it usually does). Finally, European funds are subject to conditionality in compliance with the values of the rule of law, and funds may be withdrawn whenever such violation is considered to exist. There are already precedents.

Despite this, there are European States that challenge these values in general and the rule of law in particular. It is true that until now these states, most notably Hungary and Poland, have been governed by right-wing parties with a clearly anti-European and non liberal discourse. But is it so unthinkable that a left-wing government could find itself in a similar situation? Is something like a “Left Orban” possible? The example of Slovak Prime Minister Robert Fico suggests what can happen.

Of course, it is not pleasant to recognize that Spain may be subject to a warning or even legal proceedings for infringement of the values of the rule of law, but we are not as far from that possibility as we would like to think. The situation of blockage and lack of renewal and reform of the governing body of judges in Spain, the General Council of the Judiciary (CGPJ) -situation denounced in the successive reports on the rule of law of the European Commission- and the attacks on the separation of powers that their politicization implies have already been highlighted by Polish politicians as a sign of a supposed “double standard” since according to them the Commission would be more tolerant of left-wing and European governments. According to these criticisms, the situation regarding the attempts of control of the judiciary by politicians through the appointments of the highest magistrates is not so different in Spain and Poland.

In any case, and without the intention of entering into that debate now, let us remember that the attempt to reform the law so that the members of the CGPJ were elected by an absolute majority and not by three quarters of the Congress and the Senate (precisely to avoid the current blockade) He was advised against the European Union because he rightly considered that, far from making progress in the depoliticization of the organ, he was deepening his politicization. Recently, the European Union’s Justice commissioner reiterated his warning about the possibility of initiating infringement proceedings for this reason. In short, the European Commission closely monitors the reforms that states carry out at national level whenever they can put European values at risk. Any systemic breach of these principles and in particular if affecting the separation of powers can be deemed to put the rule of law at risk within the European Union.

Can we stand before one of these cases in this case? An amnesty that is being negotiated in exchange for the government an the presidency? At the very least, there is reason to think that the European Union should pay attention to such deals, as it has already done in the past with problematic amnesties, Like the one that was tried to approve in Romania to avoid the criminal responsibilities of the main leader of the ruling party for cases of corruption.

The official argument tries to convince us that a measure such as an amnesty, which lacks any justification other than the pure electoral arithmetic (and that was not submitted to any public debate in the electoral campaign), will suppose a “erase and new account”, A new stage to facilitate coexistence between Catalonia and Spain – it is never recognized that the fracture is within Catalonia – and a measure to facilitate peace, pluralism, diversity and tolerance for many years. But to dynamite it there are the independentists, not to mention common sense and logic itself. So many benefits were not clearly perceived until election night: It is logical that many socialist voters feel deceived for the simple reason that they were. Just four months ago they were told exactly the opposite, that amnesty would never be given under these conditions.

But most relevant to the effects of the values of the European Union, we are facing an amnesty that the independentists do not see as an end point, but as a starting point for their secessionist movement, which demands, inevitably, to violate the democratic rule of law, for the simple reason that they cannot access their objectives respecting the constitutional rules of the game because they lack sufficient majorities. That is why it is essential that these rules be dismantled from within, or at least cease to apply in the cases that interest them, guaranteeing them impunity. Therefore, if the PSOE for short-term reasons offers to do the dirty work by turning the Constitution into a formal shell -and by the way, laminating the electoral possibilities of the PSC, today the leading party of constitutionalism in Catalonia-, I do not think they reject it. It should also be done by a party whose sense of state since the transition has largely depended on the stability of Spanish democracy itself (remember the abstention to facilitate an investiture of the PP to avoid third elections or support for the application of art. 155 Governing Mariano Rajoy) should give them special satisfaction.

In short, an amnesty under these conditions is a triumph for the separatists and a disaster for the democratic rule of law, whichever way you look at it. It delegitimizes the institutional and legal response that the Spanish State gave at the time, the international strategy to highlight the true anti-democratic and illiberal character of the ‘procés’ (perfectly reflected in the laws of the Parliament of Catalonia of Disconnection and the Referendum, On September 6 and 7, 2017), it compromises the separation of powers, the principle of equality before the law and calls into question until the speech of the King in defense of the Spanish Constitution on October 3, 2017. There is no one to give more in exchange for nothing.

The European Union should certainly take note.