With Pedro Sánchez sworn in as President of the Government, one of the first commitments to be fulfilled by the new Council of Ministers will be to process the future amnesty law, a key piece in the negotiation with the Catalan independence forces. The parliamentary initiative now has a path ahead of it that could last months, and includes both its processing in the Cortes and its subsequent application in the courts that have heard cases related to the process, marked by the foreseeable appeals filed before the Constitutional Court to try to delay the approval of the law or stop its effect once approved. Although the bill gives the courts two months to apply it, parliamentary processing and possible appeals before the Constitutional Court will make it difficult for the rule to be fully effective before a year.
The PSOE took the first step of the grace measure last Monday, when its group registered the bill in Congress, alone and as a matter of urgency. A qualification that shortens parliamentary deadlines by half. The second will occur next week, when the Lower House Table receives the text for acceptance after examination by the lawyers of the Cortes. At that time, the PP may file an appeal for protection to the Constitutional Court to try to stop the Board from accepting the bill and stopping it. But it will only be able to put the processing process on hold if the Popular Party requests precautionary measures and the guarantee court grants them, an unlikely option.
The Constitutional Court set a precedent last year when it stopped the parliamentary processing of the legal reform that unblocked its own renewal, but consulted jurists remember that, in that case, what was paralyzed was the processing of two amendments that the Executive had incorporated, for urgent procedure, to a bill on another matter. What the PP alleged is that this procedure violated the right of citizens to participate in public affairs through their representatives—the deputies—a right protected by article 23.2 of the Constitution. “That precedent was already strange, although there was a basis. But, in the case of the amnesty, I don’t know what legal basis will be found to stop the parliamentary processing of a bill presented by one or several groups,” says a jurist consulted. The progressive magistrates strongly opposed this suspension, but at the time they were in the minority. After the last renewal, they are the majority and it is assumed that a similar precautionary measure would not succeed.
But for the popular ones, the law is unconstitutional and they are going to try by all means to ensure that it is not processed. “We will analyze any avenue that stops the law. There will not be a single step that we can take that we will stop doing,” warn sources from the PP leadership. The appeal before the Constitutional Court could be filed both when the norm reaches the Table, next week, and at any other phase of the parliamentary process. But, if the court of guarantees ruled unfavorably for the PP at first, the popular ones admit that it would not make much sense to request a similar ruling later, unless there is some change in the rule or in its processing that would cause them give rise to challenging it again. The popular ones can also try to find a loophole to go to European justice.
“We still do not know the amnesty law in its entirety. We know the socialist bit. We do not know the Junts amendments, we do not know the Esquerra amendments and we do not know those of Bildu. “First we are going to look at the entire law and we are going to see what processing follows,” Esteban González Pons, deputy secretary general of the party, indicated this Thursday in the halls of Congress. In the event that such an appeal is not presented or that, as is foreseeable, the Constitutional Court decides to continue with the process, the progressive majority of the Board will push for the norm to continue advancing and a day will be set to fully debate the taking into consideration. of the law, that is, so that the processing continues its course. This procedure requires an absolute majority—as it is an organic law—and this vote will likely go ahead with 178 supports: those of PSOE, Sumar, ERC, Junts, PNV, Bildu and BNG.
After this step, the parliamentary groups will be able to present amendments. Normally a period of 15 days is established, but due to urgency, this margin can be reduced by half. Afterwards, it will go through a presentation and commission at the Congeso. All of these steps usually last at least a month, but the time can be longer if it coincides with January, which is a non-working day, although the Board could make it workable to accelerate. There will be a last filter, that of the debate of the entire norm in plenary session, which would again have – as expected – the same absolute majority as when it was taken into consideration. And from there, probably around February, the law will go to the Senate, territory of the PP, which has an absolute majority in this chamber.
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The Popular Party modified the Senate regulations last Tuesday to delay its processing, so that any proposed law has a period of two months—instead of 20 days—to be debated, even if it is classified as urgent. The Senate Board, despite having a popular majority and the request of the leader of Vox, Santiago Abascal, that the PP paralyze the text at that point, cannot refuse to process it. If it did, the text would automatically return intact to Congress in 20 days. Popular sources in the Upper House have already assured that the Board will qualify the norm and will not paralyze the process.
Also in the Senate, the respective commissions will be convened—to which the PP intends to bring experts and reports that support its rejection of the grace measure—and there will be room to propose amendments. “We have established a working group in the Senate to coordinate the monitoring of the amnesty law since the registration of the PSOE initiative in Congress. We will collect documents and reports and coordinate messages,” the popular parliamentary group in the Upper House reported this Friday. The PP will be able to carry out an amendment to the entire law, which would be approved with its absolute majority in plenary session about two months after receiving it in the Senate, already in April or May. Then the rule will return to Congress, which will be able to lift that total veto with the 178 votes in favor of the rule and give it final approval. When this occurs, it will be published in the Official State Gazette (BOE), sanctioned by Felipe VI, and will come into force.
At that moment it will be the judges’ turn. To be effective, the amnesty must be applied by each court that has already issued a sentence or that has opened a procedure affected by the pardon measure. The bill establishes that the courts will apply the amnesty “on a preferential and urgent basis”, ex officio or at the request of the parties and within a maximum period of two months.
That the court applies the law means that the judges issue resolutions that annul the open procedures affected by the amnesty, regardless of the phase in which they are found. To issue these resolutions, in principle, a period of two months is established, although as soon as the law comes into force there will be immediate consequences, such as the lifting of precautionary measures that may have been issued in any of the procedures included. in the amnesty. This will also imply that the arrest and prison orders against those who have escaped from Spanish justice, including Carles Puigdemont, will be lifted.
The rest of the consequences of the rule, such as the end of the execution of sentences, the definitive dismissal of the procedures or the elimination of criminal records, should be dictated within the two months established by law. The same will occur in administrative, civil or accounting processes. Once the rule is approved, the PP, Vox or the autonomous communities may present unconstitutionality appeals, but this does not suspend the application of the amnesty by the courts or extend the two-month period established by the bill.
However, judges do have an instrument in their hands to largely curb the effects of the grace measure: when it is their turn to apply the rule, they can claim that they have doubts about its constitutionality or about whether the law is compatible with the law. European Union, for which they can raise a question of unconstitutionality before the court of guarantees or a preliminary ruling before the Court of Justice of the EU. And these issues do suspend the application of the amnesty to the specific procedure for which they are presented. This implies, according to legal sources, that the judges who open this route will not issue the final resolution of dismissal of that case while the Constitutional Court or the CJEU do not rule. The Constitutional Court is expected to receive a flood of appeals and questions of unconstitutionality, but the message has been sent from within the court that priority will be given to these cases, although it is not expected to be resolved before six months.
While the sentences on these issues arrive, the amnesty will only be half effective, which will imply, for example, that if the Supreme Court, as is foreseeable, goes to the Constitutional Court, those convicted by the sentence of the processes October 2019 who are still serving a disqualification sentence, like the president of ERC, Oriol Junqueras, will remain disqualified, which would prevent them from running for elections or accessing public office. For other cases, such as that of Carles Puigdemont or those proceedings that have not yet gone to trial or a conviction has been handed down, the damages of the suspension will be minor, but they will continue to be prosecuted.
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