The court of the Third Section of the Criminal Chamber of the National Court, which was going to judge a dozen members of the Committees for the Defense of the Republic (CDR) for terrorism crimes, stopped the machines and asked a question to the Court of Justice of the European Union in order to clarify whether or not they can benefit from the amnesty law, as their defenses claimed during a procedure prior to the hearing held before the summer. This is the second instance to refer the matter to the CJEU for the applicability of the oblivion, after the Court of Auditors,
In a 72-page resolution, the magistrates raise the preliminary issue of nine specific questions based on the consideration that leaving the accused unpunished, in addition to constituting a violation of the European directive against terrorism, “means sending a message to the future (general prevention principle of criminal law) that terrorist crimes can be forgiven when their intention is consistent with the political interests of the person who dictates the amnesty law“.
For the magistrates, the facts described in the indictment documents presented by both the prosecution and the charges are subsumable under the concept of participation in a terrorist group included in Directive 2017/541 and of membership or participation in a terrorist organisation in accordance with the Spanish Penal Code, so they wonder whether they would be excluded from the application of the amnesty in its current formulation.
They are specifically accused of belonging to a terrorist group; the manufacture, possession, acquisition, transportation, supply or use of explosives and attempted destruction, which are criminalised throughout Europe. The amnesty law includes them because it introduces the caveat that these crimes achieved their objective of deliberately causing serious human rights violations and in this case they were arrested before committing the acts which, according to the evidence in the summary, were intended.
“This is why doubt arises in this House of if the Spanish legislator can add additional requirements (in this case, that serious human rights violations were intentionally caused) to require criminal liability for participation in a terrorist organisation when the European directive expressly provides that for the said offence to be punishable, it will not be necessary for it to be an offence of terrorism,” the magistrates say.
They add that this cause of exclusion implies that there are two types of terrorism, one that seriously violates human rights (not amnestiable) and others in which such a violation of human rights does not occur (yes, amnestiable). “It is therefore not a question of accepting that there are aggravated and attenuated forms of terrorist crimes, but of considering that, within the framework of Directive 2017/541, there are punishable acts that do not violate human rights,” they say.
In this sense, they understand that limiting the exclusion of amnesty to the most serious violations of human rights in matters of terrorism, as configuring a distinction between terrorist crimes not provided for in the directive, as a kind of “low-level” crime of terrorism, intensity”, could be contrary to European Union law, which does not provide for these distinctions.
Furthermore, they add that “it is not clearly indicated and without doubt what is the limit from which the seriousness of the violation of the right to life or physical integrity must be established so that it can be considered susceptible to amnesty or not susceptible to it, an absence of definition that could directly affect the principle of legal certainty.
Collision with ideological freedom and non-discrimination
But there are other elements that raise doubts and that is the possibility that the amnesty of this terrorism only because its objectives were in the name of the independence of Catalonia could collide with ideological freedom, since those who have had the same behaviors for the good of other ideas such as the implementation of a radical Islam do not receive the same treatment.
“There are doubts as to whether this ideological motive (achieving Catalan independence) as a justification for the amnesty could imply discriminatory treatment, contrary to EU law, against those who, in the same period of time, have committed similar acts for other ideological reasons, thus affecting not only the principle of equality, but also the right of European citizens to ideological freedom; without – due to the very political nature of the motive underlying the amnesty – any discriminatory treatment being justified for reasons of general interest.
All this goes against, in the opinion of the magistrates, the will of the European legislator when it promoted this directive against terrorism that binds Spain and against all the principles of Union law, while what the amnesty seeks is to “guarantee impunity” when the legal system has the mission of guaranteeing effective, proportionate and dissuasive criminal sanctions against those who adopt these behaviors. In addition, “this renders ineffective for the Court the sanctioning provision” of this directive “and therefore that of the Spanish Penal Code, depriving it of any dissuasive effect”. All for an “ideological foundation”.
