There is division in the opposition expressed to the amnesty law by Spain's judicial governance organ. The General Council of the Judiciary (CGPJ) officially considers that the legislation intended to wipe out independence process prosecutions is unconstitutional, and that it "undermines" the right to equality, and "breaches" the separation of powers. It criticizes the exclusion of the Spanish Penal Code in relation to the text's definition of terrorism, denounces that the bill's passage through Congress was "arbitrary" and warns that leaving a European Arrest Warrant without effect "may be contrary to the law of the European Union". This is the definitive position of the governing body of the judges which, through its conservative majority, responds to the request made to it by the Senate four months ago, which had to be delayed until the bill was passed by Congress.
In fact, the plenary session of the CGPJ debated two opposing reports: one in favour of its constitutionality, written by Mar Cabrejas (of the progressive sector), and one against, prepared by the conservative Wenceslao Olea. The organ, whose member's mandates expired over five years ago, unable to be renewed in the political deadlock engulfing both the judges themselves and the parties tasked with renewing the body, has a conservative majority and opted for a harshly critical report on the amnesty. Nine votes in favour and five against. The president, Vicente Guilarte, cast a null vote arguing that the report should have examined in "greater depth" the agreement between the Socialists (PSOE) and Together for Catalonia (Junts) on the investiture as prime minister of Pedro Sánchez: Guilarte justifies that this is the real significant element of the amnesty and not the "claim to pacify Catalan society" mentioned in the exposition of the bill's motivations.
At the outset, the report makes a "critical assessment" of the law for its "unconstitutionality" and its "deficient legal technique" and maintains that the Constitution "excludes it in a conscious way". It asserts that the proposed law does not justify its adaptation to "each and every one of the values, principles and conditions" of the Spanish law of laws and considers that "none of the legal precepts in force, nor the doctrine of the Constitutional Court, nor the jurisprudence of the Supreme Court” allow one to conclude that the amnesty should be recognized in Spanish law.
Going into detail, the report argues that the amnesty "undermines the right to equality", since it "does not justify in the appropriate terms of suitability and proportionality its more beneficial differential treatment of those who are covered by the amnesty" and asserts that "it will harm” the separation of powers because “it is not admissible for legislative power to nullify decisions adopted by the courts”. Similarly, it demands that "all terrorism crimes in accordance with national regulations" be excluded from the amnesty and criticizes that it omits the Spanish Penal Code in relation to this crime "with the intention that the definition contained in the [Spanish] law is not the one used by the Spanish judicial bodies".
European Arrest Warrants measure may be illegal in the EU
The report also makes other considerations. In relation to the return of Carles Puigdemont, it warns that the fact of "leaving without effect a European arrest warrant" in the manner provided for in the law (in Article 4) "may be contrary to the law of the European Union". And on the amnesty's handling by the judges, it warns that the "automatic and immediate application of certain effects is very difficult to agree with the intended haste". In addition, it maintains that the "preferential and urgent" judicial processing of the amnesty and with "difficult maximum deadlines" is "to the detriment of the delays already accumulated in many jurisdictional bodies" and "would unjustifiably harm" citizens who have other procedures awaiting resolution.
Finally, it considers that the law's scope is not delimited "with sufficient and required clarity, nor with adequate respect for the principle of legal certainty", which could "lead to a range of juridical interpretations". Regarding the parliamentary process in Congress, he considers that it was "arbitrary" and the urgency taken "was not warranted".
Progressive report, rejected
The governing body of Spanish judges, with its conservative majority, opted to approve the report drawn up by Wenceslao Olea. On the table, it also had a document signed by Mar Cabrejas, who will present her opinion as a minority report. She affirmed that, since "there is no express prohibition in the Constitution to approve an amnesty, the legislator can adopt this type of measure", which must be subject to the limits derived from the Constitution. "An amnesty law is exceptional, retroactive and temporary, but that does not deprive it of the quality of law," he argued. Cabrejas asserted that from the fact that Spaniards are equal before the law "it is not necessary to derive" that the amnesty is prohibited, since the judgment of equality "is always a relative and specific judgment, which requires the comparison of specific legal situations". In relation to the separation of powers, it proclaimed that, like every law, "necessarily presupposes its application by judges and courts in the exercise of the jurisdictional function".
Regarding the wording of the law, Cabrejas maintained that the wording describing the actions included in the amnesty is "detailed and thorough", but criticized that it "contains some overly open and undetermined formulas" and that the initial date "does not correspond to a precise reason expressed in the statement of reasons, nor is its justification apparent from the proposition as a whole”. Finally, on the exclusion of terrorism, it stated that the interpretation of the concept of "serious violations of human rights" could "generate doubts on application, especially if it is not understood to be linked to the notion used by the European Court of Human Rights".