The Spanish Amnesty, the Conflict with Catalonia, and the Rule of Law

The Spanish amnesty for the Catalan independence movement is a victory for the rule of law, rather than a defeat, as many critics want us to believe. It is not an exemption from punishment otherwise due, but instead a reflection of the fact that the acts now amnestied should never have been subject to criminal prosecution in the first place. It is thus also a way for Spain to return to compliance with its obligations under European and international human rights law.

The amnesty bill – the “Amnesty Law for the Institutional, Political and Social Normalization in Catalonia” – was approved last week by the lower house of the Spanish Parliament, the Congreso de los Diputados. It currently awaits deliberation in the Senate; if, as is expected, the Senate rejects the bill, it will require another vote in the Congress to be adopted. Given the political dynamics in the two chambers, most observers expect the bill to pass and the law to enter into force by the end of May.

A Political Agreement

Amnesties are political and legal instruments for exceptional circumstances, and they are typically used for purposes of reconciliation in ongoing political and social conflicts. Many countries have provisions on amnesties in their constitutions; others have used amnesties as a legislative tool to ease political transitions and overcome deep divides in society. In Spain, too, the amnesty law is embedded in an attempt at overcoming the constitutional conflict over Catalan self-determination claims and Spanish attempts to repress them. It is part of a political agreement, negotiated with the party of the former president of the Catalan Generalitat, Carles Puigdemont, and concluded in November 2023 as the basis for the re-election of Pedro Sanchez as president of the Spanish government. This agreement represents a broader, more ambitious political accord to tackle the historical conflict between Catalonia and Spain – a conflict of more than three centuries which led to the 2017 independence referendum and the heavy-handed response of the Spanish government. As a result of this response, Mr Puigdemont and several members of his government are still in exile. Other members – jointly with civil society leaders – served years in prison before a partial pardon converted their long sentences; some are still disqualified from public office until 2031. Many other officials and activists have been punished or are still subject to criminal prosecution.

The agreement seeks to pave the way for a political resolution of this conflict. It recognizes that the conflict has not been resolved and highlights key discrepancies in political narratives – discrepancies in part about the persistent attempts, since the end of the war of the Spanish Succession in 1714, to suppress Catalonia’s existence as a nation, with a distinctive civil, political culture. Discrepancies also about the current Spanish constitution, adopted in 1978, which fostered a transition from Franco’s dictatorship to democracy but, in the eyes of many Catalans, relegated key questions of cultural and linguistic diversity as well as political sovereignty and legitimacy to the background.

The agreement sets up a mechanism to address those discrepancies and negotiate potential solutions for the future. While it has foreseeably provoked significant criticism, the most intense attacks – also on this blog – have targeted the part of the agreement that provides for an amnesty. The law now adopted by the Congress covers acts linked to the Catalan independence movement between 2011 and 2023, with a particular focus on the 2014 public consultation and the 2017 referendum on independence. It soon provoked furious reactions from right-wing parties in Spain, a request for clarification from the European Commission and – in an unprecedented move – a protest by the highest body of judicial self-government. This body – the Consejo General del Poder Judicial – expressed (even before the agreement was concluded or its precise content known) its “intense concern and desolation” about the fact that the envisaged amnesty represents “a degradation, if not the abolition, of the rule of law in Spain”. In its view, with the amnesty the parliament would “invade the competences of the judiciary” and “violate judicial independence”, thus threatening the separation of powers and the fundamental rights of citizens. Whatever one thinks about the appropriateness of judges intervening in legislative processes publicly and on their own initiative, this statement reflects broader questions about the compatibility of the amnesty with the rule of law, given that it – like any amnesty – exempts certain acts from criminal punishment. Can such an amnesty go together with the rule of law in a democracy?

The Amnesty, the Rule of Law and Judicial Overreach

Amnesties can indeed raise doubts about the equality of citizens before the law and their compatibility with human rights. Over the past decades, international human rights bodies have increasingly found that amnesty laws violated human rights standards because they prevented the punishment of heinous crimes which states have an obligation to prosecute and punish. This applies especially to amnesties for crimes committed by dictatorships, often accepted by other political actors to smoothe a transition to democracy. Most famously, the Inter-American Court of Human Rights has struck down amnesties in several cases, beginning with the Barrios Altos case concerning a self-amnesty declared by the government of Alberto Fujimori in Peru, which had sought to avoid the punishment of officials involved in torture and extrajudicial killings during his reign.

The new Spanish amnesty law is of a different character. Rather than undermining international human rights, it seeks to bring Spain into compliance with international standards. It responds to the fact that over the past decade, faced with an increasingly powerful independence movement in Catalonia, the Spanish government and judiciary have had ample recourse to the criminal law to deal with an essentially political challenge. They have done so regardless of the fact that, in 2005, the Spanish parliament had abolished the crime of organizing a referendum in the criminal code, with the clear understanding that unauthorized referenda should be dealt with “in ways other than the criminal law”. Despite this legislative choice, prosecutors and judges have used a host of other provisions – especially rebellion, sedition and the misappropriation of funds – to recriminalize the independence referendum through the back door.

Spanish courts have thus punished – often severely – the organizers of a public consultation on independence in 2014, the actors behind the 2017 independence referendum, organizers of and participants in public protests, and a whole host of other actors connected to the independence cause. This includes well-known cases – such as those of Carles Puigdemont and other members of his government who went into exile and continue to be threatened by arrest warrants, and of the members of his government as well as leading civil society actors who were tried in the Spanish Supreme Court with harsh prison sentences of up to thirteen years for “sedition” (the latter were partially pardoned after they had served more than three years in prison). But it goes much further: prosecutors have gone after many mid-level officials in the Catalan government at the time of the referendum, and they have targeted civil society activists and individual demonstrators not only for their role in events in 2017 but also later, for example in the protests against the sentences in the Supreme Court in 2019. In November 2023 – in a surprising coincidence with the negotiations over the amnesty law – the Spanish Audiencia Nacional (later also the Supreme Court) has opened formal investigations for supposed terrorism crimes against actors involved in the “Democratic Tsunami”, the backbone of the 2019 protests and behind non-violent actions such as the blockade of the road leading to the airport of Barcelona. All in all, according to Catalan civil society organization Omnium Cultural, almost 1500 people have been subject to criminal procedures, 1200 to administrative and accounting procedures with often heavy sanctions. More than 100 have been spied upon by police and intelligence services, often through the use of the Pegasus software on victims’ mobile phones in what became known as the Catalangate scandal.

Lawfare and International Condemnation

This kind of lawfare – the use of the law to damage or delegitimize an opponent – has been widely decried by human rights organizations, such as Amnesty International and the International Commission of Jurists, as well as UN experts, for example the UN Special Rapporteur on freedom of expression and opinion. Important quasi-judicial bodies of the United Nations have followed suit. In 2019, the UN Working Group on Arbitrary Detentions found the imprisonment of politicians and civil society activists to violate the international bill of rights. In 2022 and 2023, the UN Human Rights Committee – the most prominent quasi-judicial body supervising the implementation of the International Covenant on Civil and Political Rights – found that the suspension from their parliamentary seats of members of the independence movement violated their political rights. Likewise, in 2021, the Parliamentary Assembly of the Council of Europe criticised the criminalization of non-violent pro-independence activism and called on Spain to find political ways of dealing with the conflict.

The amnesty law now agreed upon is one way for Spain to comply with the demands of international human rights law. It is not an exemption from punishment otherwise due, but instead a reflection of the fact that the acts now amnestied should never have been subject to criminal prosecution in the first place. This amnesty is necessary only because Spanish judges and prosecutors have interpreted criminal provisions, such as those on rebellion, sedition or terorrism, so excessively wide that, in order to protect the state, they have disregarded international guarantees. They have ignored provisional measures indicated by the Human Rights Committee to protect the political rights of candidates for the presidency of the Catalan government, and they have disregarded the immunities of members of the European Parliament, as the European Court of Justice has clarified. This anti-liberal stance is in line with the fact, noted by many observers, that the Spanish judiciary is very conservative, due in part to the lack of an institutional rupture with the judiciary under the dictatorship. It is significant that courts in other European countries – Germany, Belgium, the United Kingdom and Italy – have consistently rejected Spanish judges’ requests for surrender of Catalan independence leaders on the basis of European Arrest Warrants. Remarkably, the German court that refused Mr. Puigdemont’s surrender in 2018 – the Oberlandesgericht Schleswig – noted that the political mobilization Spanish courts saw as “rebellion” were, for reasons of constitutional rights and democratic freedoms, not punishable in a similar way under German law. In 2020 and 2021, Belgian courts refused to execute a European Arrest Warrant against a former minister in the Catalan government in part because they saw significant risks for the right to a fair trial, also taking into account the earlier findings of the UN Working Group on Arbitrary Detention.

Amnesty, or Rather: Rectification

In this light, “amnesty” might be a misnomer for something that really is a rectification. Rather than challenging the rule of law, the amnesty reinstates it – it secures compliance not only with the decision of the Spanish legislature to decriminalize the holding of referenda, but also with (international and national) human rights standards by decriminalizing peaceful acts of political activism and protest. The amnesty explicitly excludes violent acts, especially terrorist crimes – but it defines terrorism in line with the relevant EU Directive, not with the loose interpretation given to it in Spanish practice. This seeks to avoid a scenario in which judges use terrorism accusations to sideline the amnesty – as the recent charges around the 2019 Democratic Tsunami appear to intend. And it can help to bring Spanish interpretations into conformity with the freedom of expression and protest, which international human rights groups have long demanded.

Last week, the Venice Commission of the Council of Europe in its opinion on the proposed law has then also found it to be largely compatible with rule-of-law principles and only recommended adjustments to the scope of covered acts to generate greater legal certainty. The Commission has also clarified that the concerns about judicial independence and the separation of powers – so central to the criticism from the Spanish judiciary – are misplaced as the effects on judicial proceedings are merely “logical consequences of the retrospective erasure of criminal liability” characteristic of any amnesty.

The Spanish amnesty thus rectifies past wrongs and thereby provides a starting point for a process of negotiations, under international supervision, that takes seriously the discrepancies in views about history and politics that have shaped the relations between Spain and Catalonia for long. This process can help to generate a “politics of recognition”, to use the words of Canadian philosopher, Charles Taylor – a recognition that seeks to acknowledge, rather than deny, key differences in identity, culture and visions of sovereignty and self-determination. It will only be through such recognition – not repression, as through the criminal law – that it might become possible to find a political solution to what has always been a primarily political problem.

Both authors advised members of the Catalan independence movement on questions of international human rights law.