The legal arguments used by the Xunta before the Constitutional Court in its appeal against the amnesty law approved by the Congress of Deputies to erase the convictions and investigations of those involved in the Catalan trial are already known. Throughout its 81 pages, the Legal Department of the Autonomous Administration details the reasons for its rejection of the norm, which focus on the lack of powers of the Cortes Generales to approve an amnesty, the express refusal of the constituents to collect it in the Magna Carta, and the violation of the principles of equality, justice, separation of powers and legal certainty. Amnesty is not reasonable, proportionate or adequatemanages the resource that ABC has accessed.
“The law in question is unique, as is its meaning, as well as its potential impact on the fundamental principles of the rule of law,” argues an appeal that considers that the Autonomous Community is entitled to appear before the TC. The Xunta’s lawyers understand that “if it doesn’t go well [en la Constitución] a general pardon, a fortiori an amnesty lawwhereas the latter is more extreme and has more intense effects than the general pardon”, because it implies “not only the exemption from punishment, but also the erasure of the very existence of the offence since it applies to persons not yet convicted.”
Among the main objections, it is noted that “an amnesty implies a collective exemption that conflicts with the normal respect for the rule of law” and that “the exercise of forgiveness and pardon would take us back to an institution typical of past states and of an absolutist dimension.”; and not of a democratic and legal state “as recognized by the Constitution. Regarding the parallels that are made with the amnesty of 1977 to justify the one approved in 2024, the jurists emphasize that it “has its own and differentiated constitutional and historical configuration”, protected “in the event of a change of regime”, a situation “that is not “comparable” to what exists today. “To ignore it is to try to assimilate the unequal.” In fact, “this amnesty can have the most parallel with what is treated in the Constitution, it is what it does not expressly authorize: general pardons”.
Another argument put forward is the lack of competence of the General Courts to approve the pardon measures. “They do not have the absolute power to legislate,” the appeal stresses, “but are subject in all cases to the necessary respect for the constitutional text.”
Given that “the amnesty will mean the annulment of firm decisions adopted by other powers, mainly the judiciary”, the Xunta considers that the separation of powers is attacked and the exclusive jurisdiction enjoyed by the judiciary, in which “the legislator cannot intervene”The main criticism is that the amnesty acts “as a brake” on judicial activity, preventing not only the execution of “firm judicial decisions”, but also “preventing the judgment of acts that, for other citizens, would be criminally punishable”. “The separation between the legislature and the judiciary is distorted by the granting of an amnesty by the legislator”, concludes the appeal, which, with this law, creates “a space of jurisdictional immunity”.
He also underlines the “absolutely broad and indeterminate scope” of the amnesty, “going beyond the precise configuration that an exceptional institution like this must have.” “The principle of legal certainty is clearly outdated with an indeterminacy such as that provided for the scope of this law.
The Xunta appeals to the TC’s own doctrine, contrary to the approval of singular organic penitentiary laws such as the amnesty rule. “The negative delimitation of the fundamental right to personal freedom provided for by the Penal Code cannot admit singular exceptions” such as the one made in favor of the actors of the Trial. Thus, it considers it “inconsistent” that the preamble of the amnesty law indicates that “there is no democracy outside the rule of law” and immediately afterwards decrees the measure of pardon in favor of “those who, benefiting from this very broad framework”, have decided to cross it.”
“And all this based on a legislative procedure not subject to treatment that grants more participation and reflection, using the emergency route, based on a vote of only 5 votes difference, and derived from an agreement for the investiture precisely with whom “He has in his class those who benefited from the amnesty. “It is not reasonable, proportionate and adequate,” he says. The appeal also reproduces the argument of the opinion of the Consultative Council of Galicia to contest that the amnesty is approved for the general interest and not for political necessities of the Executive Power. “It is legitimate to ask whether this law responds to a principle of justice whereas, repeating the words of the Venice Commission report, “this is part of the coalition agreements signed by the President of the Government with two Catalan independence parties.”
