Venice Commission sees search for political reconciliation in Catalonia as ‘legitimate aim’

The European Commission for Democracy through Law, also known as the Venice Commission, has declared that the “institutional, political and social normalization in Catalonia” is a “legitimate aim”, and “encourages all the Spanish authorities to take the necessary time for a meaningful dialogue in a spirit of loyal cooperation” regarding the amnesty debate.  

In a draft opinion published on Friday, the Commission calls on the Spanish authorities to define the “material and temporal scope” of the amnesty law “in a more precise way” in order to “make the effects of the law more foreseeable” and to avoid the emergence of “controversies.” 

The Commission also states that "it is in line with the principle of separation of powers” that a judge alone decides who would benefit from the amnesty based on “general criteria determined” by the amnesty law proposed by the parliament.  

Other European amnesty laws 

According to the 26-page document, the Commission has analyzed information on “constitutional and legislative provisions” on amnesty in 54 of its member states. 

Specifically, other European amnesties have typically required “some form of (strong) involvement of parliament” and also generally have a “limited scope and are often related to political events.”   

The document also adds that several constitutions establish that amnesties cannot be granted for certain crimes, such as homicide. 

Constitutionality and recommendations 

Although the Venice Commission ruled out reviewing the constitutionality of the Spanish amnesty law, it acknowledged that the issue has sparked “vivid controversy”.  

Therefore, the Commission considers it “preferable, when the time is ripe, to regulate this matter explicitly by way of a constitutional amendment.” 

According to the Commission, the scope of the current amnesty bill is “very broad and undetermined”, and points out that open clauses, expressions, or wordings such as defining acts by their intentions only “add to the vagueness.” 

The Commission therefore recommends that the material and the temporal scope of the bill be defined “in a more precise way,” adding that “the lack of clarity and determinacy carries the risk that a very large number of cases and controversies will arise about the correct application of the law,” which would “not be coherent with the purpose of the amnesty.” 

Similarly, the document also recommends establishing a clearer link between the independence “consultations held in Catalonia on 9 November 2014 and 1 October 2017, their preparation or their consequences and the acts covered by the amnesty.”

The problem, according to the Commission, is that the bill could have the undesirable effect of covering “many citizens who have committed ordinary crimes that have little or nothing to do with the social tensions that led to the amnesty law.” 

“The Commission recalls that an amnesty is an impersonal measure applying to all persons or a class of persons, and the criteria for its application should not be designed to cover specific individuals,” the document states. 

A “legitimate” aim 

While the Commission acknowledges that the amnesty bill has “provoked fierce criticism in Spain” and is aware of the criticism that the bill “was part of a political deal for achieving the majority to support the government,” it stresses that the “institutional, political and social normalization of Catalonia” is “a legitimate aim.” 

At the same time, the Commission will not “assess the proportionality of the amnesty bill about the proclaimed goals” of a political normalization of Catalonia.  

“The Spanish parliament, in deciding whether and with what content to adopt the amnesty bill, will have to address the question of whether the normalization of Catalonia may be achieved despite the fact that the amnesty bill has created a deep and virulent division in the political class, in the institutions, in the judiciary, in the academia and, above all, in the society of Spain,” the opinion states. 

The draft opinion will be voted on on March 15 and 16, after which the adopted opinion will be made public.