Amnesty, Constitution and Rule of Law: outline of a theory on their compatibility

Abstract

The Organic Law of Amnesty for Institutional, Political and Social Normalization in Catalonia has generated great controversy. However, both in academia and in public debate, only two positions are defended: those who consider that the institution of the amnesty itself lacks constitutional fit — and therefore this amnesty —, and those who consider that amnesties are perfectly constitutional. —and therefore this amnesty. The objective of this text is to defend an intermediate position: that amnesties considered in general can be constitutional but that this amnesty law, given its characteristics, origin and purpose, is unconstitutional. To do this we will proceed as follows: in the first section, we will analyze and refute the arguments that have been put forward in favor of the general constitutionality of amnesties in the Spanish legal system. In the second section, we will analyze and refute the arguments offered against the general constitutionality of amnesties. And in the third section, after reviewing the doctrine on this matter of the European Court of Human Rights, the Venice Commission and, most especially, the Spanish Constitutional Court, we will conclude that amnesties are not per se contrary to the values and principles basics of the democratic rule of law, but that only some amnesties respect them. Going deeper into this line, we will outline a theory of the constitutionality of amnesties in the Spanish system — that is, what requirements an amnesty law must meet to be constitutionally legal — based on the ideas put forward by the Constitutional Court when it has addressed this matter. in various statements on the amnesties carried out during the Transition to democracy.

Summary 1. Arguments against the constitutionality of the amnesty. 1.1- Argument of the separation of powers. 1.2- Argument from the principle of equality. 1.3 - Argument for the absence of special authorization. 1.4 - Gradualist argument. 1.5 - Originalist argument. 1.6 - Outlaw self-forgiveness argument. 1.7- Argument of the singular law. 2 - Arguments in favor of the constitutionality of the amnesty. 2.1- Democratic argument. 2.2 - Argument of favorable retroactivity. 2.3- Argument from silence. 2.4 - Systematic argument. 2.5 - Historical and comparative argument. 2.6 - Jurisprudential argument. 3- Outline of a theory on the compatibility of amnesties under the rule of law. 3.1 - Doctrine of the Council of Europe and the ECHR. 3.2 - Doctrine of the Venice Commission. 3.3- Doctrine of the Constitutional Court. 4. Conclusion