Miryam Rodríguez-Izquierdo Serrano (Professor of Constitutional Law at the University of Seville)
On 11 June 2024[1], the Spanish Official State Journal published Organic Law 1/2024, of 10 June, on amnesty for institutional, political and social normalisation in Catalonia (Ley Orgánica 1/2024, de 10 de junio, de amnistía para la normalización institucional, política y social en Cataluña).[2] The law entered into force at the same time of its publication. As of this date, it is mandatory for the judicial, administrative and accounting bodies that may be handling cases linked to the sovereignty process in Catalonia (2014-2017) to apply the law. The law orders these bodies to exempt from criminal, administrative or accounting liability those who have been involved in those events, especially those linked to the preparation or consequences of the consultations on independence that took place in 2014 and 2017.
The approval of this Spanish amnesty law has been preceded by some speculation about the position that the EU will adopt in relation to it, as well as others related to possible preliminary rulings: whether the Spanish courts could ask the CJEU for preliminary rulings before adopting their decision on the application of the amnesty law to each specific case. For this reason, it is relevant to recall what the EU’s position has been, to date, regarding amnesties approved in its Member States. But above all, it is important to find out whether the CJEU has previously ruled on the effectiveness of amnesty laws. This will provide basic guidance on whether the CJEU has jurisdiction over an amnesty law passed in a Member State and on the limits within which a Member State may decide to amnesty criminal, administrative and accounting liabilities.
1. The EU’s general position on amnesties in the Member States
Firstly, it can be said that, until now, the EU has remained aloof from the amnesties approved in different Member States. In fact, in many of them, the Constitutions recognise the possibility of approving amnesties, and this has been done on several occasions in countries such as France, Germany, Italy and Portugal. This assertion would be supported by several normative elements: Article 4 of the TEU, which reserves to the Member States competences not attributed to the Union and contains the so-called “national identity clause”; the silence on the issue in the TFEU’s regulation of the area of freedom, security and justice; and, most especially, the fact that Article 1(1) of the Framework Decision on the European arrest warrant [Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)] establishes that a European arrest warrant shall lapse immediately when the offence which gave rise to it has been the subject of an amnesty in the executing Member State.
Nonetheless, it should be noted that, in 2019, the European Commission publicly expressed its disagreement and rejection of an amnesty in Romania, given that it was planned to pardon corruption crimes perpetrated by political leaders. As the Commission itself reports, that amnesty attempt was neutralised by the Romanian citizens themselves, through their majority rejection of it in a referendum [COM(2019) 499 final]. Similarly, and more recently, the European Parliament adopted an amendment to the proposal for a Directive on combating corruption [COM(2023) 234 final], calling for a ban on amnesties in this area, especially those that could affect the Union’s financial interests.
In any case, given that the legislative procedure has lapsed for the aforementioned proposal for a Directive, and given that the European Commission has chosen to stay out of the Spanish amnesty law of 2024, for the time being it can be maintained that, in general and in principle, amnesties decided by the Member States are internal matters for them.
2. The position of the CJEU vis-à-vis specific amnesties and in relation to the objectives of the area of freedom, security and justice
The case law of the CJEU concerning amnesties adopted in Member States or third countries is scarce. There are only two judgments concerning preliminary rulings on questions relating to amnesties: one in Slovakia and one in Iran. Both relate to preliminary rulings on the interpretation of the Framework Decision on the European arrest warrant (EAW), in both cases there is doubt as to whether Article 50 of the Charter of Fundamental Rights of the European Union (CFREU), the ne bis in idem principle, is respected, and in both cases the CJEU avoids pronouncing on the legitimacy or legality of the respective amnesties.
The first judgment is that handed down in Case X, C-665/20 PPU, on 29 April 2021.[3] A Dutch judge had doubts as to whether executing an arrest warrant requested by Germany would be compatible with the EAW, insofar as the person concerned, Mr X, had already been tried, and then amnestied, for some of the facts in his country of origin: Iran. As explained above, the CJEU did not assess the legitimacy or otherwise of that amnesty, which pardoned serious crimes of injury. But the CJEU did emphasise two aspects that would be relevant for reconciling an amnesty with the objectives of the area of freedom, security and justice: an amnesty should preferably respond to criminal policy objectives; an amnesty should be interpreted in accordance with the objectives of preventing impunity in the European area and combating crime; and the judge’s margin of appreciation, in an amnesty case such as this one, should weigh these supranational interests against the legal security owed to the person subject to the arrest warrant.
The second judgment is the one handed down in case AB, C-203/20, on 16 December 2021.[4] In that case, a Slovak judge asked the CJEU whether it could issue an arrest warrant for nationals of his state. Specifically, they were former security agents whose crimes, related to kidnappings and illegal detentions, had been amnestied in 1997, but who since 2017 were again being prosecuted because of the revocation of that past amnesty. On this occasion too, although it was a question concerning a Member State of the EU, the CJEU did not wish to assess the legality or illegality of the amnesty or its revocation. However, it did clarify certain points that are relevant to determining the perspective from which the CJEU understands its jurisdiction in such a case: the approval or revocation of an amnesty, in principle, are understood as internal matters of the Member States; neither in the legislative procedure by which an amnesty is approved in a Member State nor in the procedure for reviewing the constitutionality of that law do the different Directives relating to the harmonisation of procedural safeguards in criminal proceedings apply; but to the extent that a court with jurisdiction to issue an arrest warrant asks the CJEU about the compatibility of such an amnesty with the Framework Decision, the CJEU has jurisdiction in the matter and will answer such preliminary questions as are relevant and applicable to the decision to be taken by the judge or court.
3. The impact of EU law and CJEU jurisprudence on the Spanish amnesty law
The two cases that have been analysed arise in relation to amnesties that are very different from the one approved in Spain. The first is because it involves crimes against physical and moral integrity, affecting the nucleus of human rights protection protected by Articles 2 and 3 of the ECHR, and because it involves a third State with respect to which the principle of mutual trust does not apply. The second is because, although it is linked to a certain amount of political corruption, it is a matter of crimes against liberty and, although the preliminary ruling comes from a Member State of the Union, it is a revoked amnesty, not an approved one.
Even so, this is clear: the CJEU asserts its competence to examine preliminary rulings that, in amnesty situations, ask about the interpretation of EU law provisions. This includes doubts that a court may have about the compatibility between the law of the state and the provisions of the EU law. And this, in turn, in case of incompatibility, may mean that the amnesty law must be moved in accordance with the principle of the primacy of the EU law, if this is implied by the CJEU in a preliminary ruling on a question of interpretation.
It is therefore also clear that this case law will have an impact on the Spanish amnesty law of 2024. Indeed, it is the law itself which acknowledges that it touches on areas of competence of the European Union law and that it is affected by it. See, for example, Article 2 of the law, which expressly excludes from amnesty areas covered by the Terrorism Directive, crimes affecting the financial interests of the EU and some areas covered by the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. See, furthermore, Article 1 of the law, which provides amnesty for the offences of misappropriation of public money in the absence of enrichment, forcing the law enforcer to stop and find out whether, with or without enrichment, the financial interests of the Union are affected. Or finally, consider how Article 4 expressly refers to European arrest warrants and to Article 267 TFEU, the basis for the preliminary ruling procedure.
In conclusion, it is not only likely, but possible, that Spanish courts will refer questions of interpretation of the EU law to the CJEU for a preliminary ruling when they apply the Spanish amnesty law of 2024. It is also likely, and possible, that the CJEU will address them, insofar as in previous case law on amnesties it has not declined jurisdiction when the questions referred for a preliminary ruling concerned the interpretation of provisions of the EU law.
Finally, it is not known whether it is likely, although it certainly seems possible, that in addition to the various Spanish judicial bodies which, having doubts of interpretation, could ask questions for preliminary rulings, the Court of Auditors could also do so. Although the Court of Auditors does not belong to the judiciary, but is an independent body linked to the Spanish Cortes Generales, it has all the characteristics that the case law of the CJEU requires in order to ask questions for preliminary rulings: it is a body created by law; it has a permanent nature; its jurisdiction is mandatory; it rules in accordance with an adversarial procedure; it applies legal rules; and it is independent in nature. And, most importantly, as the court before which accounting liability is brought, it is perhaps the one to which most questions may arise in relation to the impact on the EU’s financial interests.
[1] This commentary is part of the research project “La configuración europea del estado de derecho: Implicaciones en el ámbito nacional” (PID2022-137789NB-I00), funded by the Spanish Ministry of Science and Innovation.
[2] Available at: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2024-11776.
[3] ECLI:EU:C:2021:339.
[4] ECLI:EU:C:2021:1016.
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