Amnesty in Europe: recovering politics before the judges
The Court of Justice of the European Union has just ruled that the amnesty law is not contrary to European law. It is an extremely significant decision. It dismantles the arguments of those who presented it as an attack on the rule of law and, above all, it highlights the sectarianism of right-wing judges and politicians who, not satisfied with opposing the amnesty, presented it as a legal absurdity unworthy of a democratic country. Ultimately, the Luxembourg court returns the discussion to its rightful terms: like many other political measures, one can agree or disagree with not ceasing to judicially prosecute the Procés.
Few things have done as much harm to the territorial debate, and to our democracy, as the idea that anything that one side dislikes is illegal and prohibited. This obsession with judicializing political discussions to silence the opposition denies the very essence of democracy. Democracy must be a framework whose development can be carried out through very different ideological approaches. Pluralism implies that it is the citizenry – and not the judges – who, after the relevant debates, guide political decisions.
The ruling originates from two preliminary questions raised by the Court of Auditors and the National High Court before the Court of Justice of the European Union. The arguments invoked were of a simplicity unworthy even of a law student. One stated that the European Union obliges to always and at all times prosecute serious crimes without them being able to be pardoned. The other even went so far as to say that if Catalonia were independent, this would reduce the European Union's revenue because it would decrease collection. The judges in Luxembourg, indifferent to the political polarization of the Spanish, have hardly needed to argue to refute all this.
Indeed, reading the ruling it is easy to feel that the Spanish judiciary has undertaken a crusade for the unity of Spain in which its members assume the role of warriors of Christendom. They took to the streets in their robes, flaunting their status as a branch of the State, to defend their unitary and inflexible model of country. Behind this judicial rage against the amnesty lies a fierce resistance to losing control of the state's reaction to independence. They want to be the ones to decide what to do with Catalan leaders and activists (basically, imprison them for more or less invented crimes) and cannot bear the idea of a political or negotiated solution.
They see it as a betrayal because it returns to politics something that was in their hands. When they try to legally articulate this visceral rejection, they reveal themselves. The legal arguments against the amnesty are an attempt to dress up their political stance in law. That is why we see how successive higher instances, essentially international ones, dismantle them effortlessly.
Immediately, some Spanish judicial associations have come out to criticize the European decision and to claim the power to interpret the amnesty law as they please. It is clear that they have made no intention of amendment.
Beyond this, the ruling sends a powerful message: when faced with a social conflict related to the territorial integrity of a state, opting for a judicial reaction is as legitimate as opting for a political solution. Amnesty is a suitable instrument for appeasing a larger political or social conflict. It serves to reduce institutional and political tensions and to facilitate a scenario of reconciliation. Deciding whether it is appropriate or not is an exclusively political matter that depends on social and institutional majorities. It is not in the hands of judges.