“In addition to potentially involving a violation of the directive [europea de lucha contra el terrorismo]The amnesty law also sends a message to the future in the sense that Terrorist crimes can be pardoned when their intention is consistent with the political interests of the person dictating the amnesty law.“.
The above is one of the paragraphs of the long resolution in which the judges of the National Court responsible for judging the 12 radical independence fighters detained in the Operation Judas have raised their doubts about the legality of the amnesty law with the Court of Justice of the European Union (CJEU).
As reported exclusively by EL ESPAÑOL, the Third Section of the Criminal Chamber of the National Court has finalized this document, entitled preliminary questionThis is the tool with which national courts can consult the CJEU to find out whether a rule or part of it contravenes or infringes European law.
And judges Alfonso Guevara, Carlos Fraile and Eduardo Gutiérrez have serious doubts about the legality of this controversial norm, promoted by the government of Pedro Sánchez and approved by the Congress of Deputies.
The law itself, intended to benefit Catalan independence activists who are under investigation or prosecuted in certain legal cases, specifies that it will not apply to cases of terrorism that have intentionally caused “serious violations of human rights.”
A violent demonstration on the AP-7 during the Catalan process.
However, the preliminary question signed by the Third Section criticises that this possibility is contrary to the European Union’s “unitary policy” against terrorism, by making distinctions between one type of crime and another.
The EU’s position, however, makes no distinction. Thus, in the eyes of the three above-mentioned magistrates, the amnesty law represents “a tacit repeal of an essential part of the Community directive” on the matter and, “in short, it goes against the will of the Community legislator expressed in its articulate speech”.
“The amnesty law grants amnesty to possible crimes of terrorism, provided that they have not intentionally caused serious violations of human rights, or that they have caused them, but unintentionally, for example with possible fraud,” the resolution deplores.
“Those terrorist crimes that do not involve intentionally provoking
Human rights violations must also be punished by the state [miembro]”, the judges emphasize in their 72-page resolution.
“In the opinion of this court, amnesty for crimes of terrorism for which the State is responsible
the obligation to classify an offence may be incompatible with European Directive 2017/541″, specifies the third section.
“Guarantees impunity”
According to the Court, EU Member States must ensure that “there are effective, proportionate and dissuasive criminal sanctions” against those who commit terrorist crimes. Especially for the most serious behaviours; such as those prosecuted in this case (manufacturing of explosives, participation in a terrorist group, etc.).
However, according to the vision of Guevara, Gutiérrez and Fraile, the amnesty law “Its objective is precisely the opposite: to guarantee impunity”.
That is to say, the facts investigated in this case “are not subject to prosecution, so that no criminal sanction is imposed for behavior (…) such as participation in a terrorist group, the manufacture, possession, acquisition, transport, supply or use” of explosives or attempts at mass destruction or devastation.
“We therefore believe that by guaranteeing impunity through the amnesty law, the national legislator is legislating against Directive 2017/541. [de la Unión Europea destinada a la lucha contra el terrorismo]which affects fundamental principles of European Union law, such as the principle of primacy and legal cooperation.”
The procedure, suspended
For all these reasons, the legal proceedings affecting the 12 radical independentists detained in the Operation Judas It is now suspended until the CJEU rules.
The prosecution had already categorically requested the court that the amnesty be applied to the benefit of these twelve members of the Committees for the Defense of the Republic (CDR), one of whose plans was to attack the Catalan Parliament to demand the independence of Catalonia.
However, they were arrested by the Civil Guard, who discovered that they had organized an explosives laboratory-kitchen.
At a hearing held last June, the lieutenant prosecutor at the National Court, Marta Durantezrequested the application of amnesty in favor of these defendants. The accusations were contested, as was the prosecutor who had been handling the case until then and whom Durántez had to replace during this event.
The approval of the amnesty law, promoted by the Sánchez government, was controversial because, during its parliamentary processing, it was adapted to the former president of Catalonia. Carles Puigdemontwho was also being investigated for the crime of terrorism in what is known as Tsunami caseAmnesty was one of the demands of Junts, the party of former president who had seven votes in Congress, to support the investiture of Pedro Sánchez.
