The PSOE argues in its amnesty bill that amnesty has been applied on 50 occasions in Europe since World War II.
CARLOTA GUINDAL, MADRID
19 November 2023
Germany experienced a wave of protests following the assassination of student leader Rudi Dutschke in 1968 (picture alliance / ARCHIVO
Pedro Sánchez’s closest team got down to work in August to draw up a text defending the constitutionality of the amnesty, an essential condition for obtaining the support of ERC and Junts in the investiture of the Socialist leader. And one of the axes of the document that seeks to support the annulment of the criminal, accounting and administrative cases linked to the ‘procès’ has been the comparison with neighbouring countries. The collaborators behind the drafting of the law have compiled up to 54 amnesties that have been granted in Europe since the Second World War.
The explanatory memorandum of the proposed organic amnesty law “for institutional, political and social normalisation in Catalonia” stresses that the amnesty mechanism has been used on numerous occasions both in Spain and in the rest of Europe. The defence of the authors of the law lies in the fact that this measure of grace, which is not legally regulated in Spain, has already been applied, for example in 1977, after the end of Franco’s dictatorship. It has also been applied in other countries.
Portugal applied the measure of pardon after the Carnation Revolution, and in France after the Algerian war.
Since Sánchez announced his desire to reach an agreement with the pro-independence parties, there have been many voices that have questioned the constitutionality of amnesty, as it is not contemplated in the Constitution, unlike general pardons, which are expressly prohibited.
The text presented this week in the Congress of Deputies to process the amnesty law defends the fact that countries such as Portugal, France and Germany have applied this measure. Among the arguments put forward, it details that in some European countries amnesty is constitutional, and in others amnesties have been granted at different times in their recent history despite the fact that it does not expressly appear in their national charters.
The document that will serve as the basis for the future law in Congress gives as examples the constitutional texts of Italy, France and Portugal, which have applied amnesty on various occasions. The most recent is Portugal’s law of 2 August 2023, which amnesties all young people between the ages of 16 and 30 for committing certain crimes, on the occasion of Pope Francis’ visit to the country. It also details that Italy, for example, allows amnesty but requires a two-thirds parliamentary majority.
The explanatory memorandum states that there are other constitutional norms in European countries which, although they do not expressly mention amnesty, as is the case in Germany, Austria, Belgium, Ireland and Sweden, “this has not prevented their constitutionality from being affirmed”.
“Since the Second World War, more than fifty such laws have been enacted in the aforementioned countries, with the doctrine itself considering that an amnesty is applicable in the constitutional state in circumstances of special political crisis”, the bill states. Thus, the authors of the text argue that from the perspective of European Union law, the institution of amnesty is “perfectly standardised”.
The intention in the explanatory memorandum is to justify that amnesty is fully recognised and used in Europe. Another example from Portugal is the amnesty for crimes arising from the Carnation Revolution, which led to the democratisation of the country. In France, in 1951, amnesty was granted to collaborators with the Nazi regime under the age of 21 who were sentenced to less than 15 years. There have also been amnesty laws in France concerning the Algerian War, following the signing of the Évian Accords, which affected both independence fighters and military personnel who fought and even those who later rebelled against the French government (1962, 1966, 1968 and 1982).
Critics insist that the driving force behind this amnesty is not to resolve a conflict in Catalonia, but the investiture.
In Germany, amnesty laws have been passed to benefit participants in student protests (1968 and 1970), as well as the law granting immunity from prosecution in 1949, the law waiving penalties and fines and dismissing criminal proceedings and sanctioning procedures in 1954, and impunity laws in 1968 and 1970. Likewise, in Italy, it was also passed in the field of public disorder and resistance to authority (1966, 1986 and 1990).
Even in Switzerland two laws have been enacted, a federal decree in 1955 granting a partial amnesty for violations of the rules on maximum prices for slaughter pigs and another one in the same year, also a partial amnesty, for violations of the rules on maximum prices for hay.
These examples are not just amnesties due to a change of regime, as was the 1977 amnesty for the transition from dictatorship to democracy in Spain, but were used as mechanisms to solve political and social conflicts. However, and despite the justification given in the text, critics of the law, including historic socialists, warn that in this case the driving force behind the amnesty for the ‘procés’ is not to resolve a conflict in Catalonia or for the coexistence of Catalans, but so that Sánchez could be sworn in as prime minister with the support of the pro-independence parties, as he has been.