European Commission warns amnesty law may breach EU anti-terrorism directive

The European Commission has warned that Spain's amnesty law – linked to the Catalan independence push – may violate the EU's anti-terrorism directive due to a lack of "certainty," "precision," and "predictability." 

A series of "defects" or "deficiencies" in the law passed by the Spanish Congress last year not only violate the principles of "legal certainty and equality" but also EU anti-terrorism legislation, Brussels says.

The amnesty law, part of a political agreement between Spain's ruling Socialist Party with Catalan pro-independence parties Esquerra (ERC) and Junts, aims to pardon individuals prosecuted for their roles in the independence push which came to a climax in 2017 with the referendum, deemed illegal by Spain, which saw numerous politicians jailed and exiled.

"The EC considers that the provisions of the amnesty law lack certainty, predictability, and precision and therefore (…) are not clear enough to determine which offenses listed in the directive fall within its scope," said Carlos Urraca, a lawyer for the EC.

Urraca was speaking during a hearing at the European Court of Justice on preliminary questions from Spain's National Court regarding the amnesty in the case against pro-independence activists, the Committees of the Defense of the Republic (CDR).

In his closing arguments on Tuesday, Urraca said Brussels considers it "incompatible with EU values" to grant an amnesty "in exchange for support in an investiture."

Defense

The defense lawyers of the 12 CDR members accused of terrorism argued that the amnesty law does not put the anti-terrorism fight at risk either in Spain or in Europe. 

Furthermore, it is not discriminatory because it has also been applied to police officers and others outside the pro-independence movement, they said.

Addressing the Luxembourg court, the lawyers asserted that the amnesty only implied a temporary and specific exemption from Spanish and European anti-terrorism regulations, but not their total repeal.

Xavier Monge said that the debate before the court is not about the political opportunity of the amnesty law or its effectiveness in resolving the Catalan political conflict, but simply about whether it is legally legitimate, and in his view, it is.

"Impunity" for terrorists

On the other hand, the lawyer for the Catalan Association of Victims of Terrorist Organizations (ACVOT) and associations of Spain's Guardia Civil police said that if the amnesty is applied to the 12 CDR members in the 'Judas case' accused of terrorism, it will open the door to "impunity" for jihadist terrorists who have not committed attacks.

José María Fuster Fabra said the law could, for example, allow an Islamist party to demand amnesty for jihadists convicted of belonging to terrorist organizations or possession of explosives.

Second amnesty hearing of the day

The hearing at the European Court of Justice on questions from Spain's National Court was the second of the day in relation to the amnesty. 

On Tuesday morning, the court examined questions raised by Spain's Court of Auditors about public funds used during the 2017 referendum and the Catalan government's international initiatives.

Further questions

Aside from questions from the Court of Auditors and Spain's National Court, the ECJ has also been asked to address doubts of the Catalan High Court and a court in Vilanova regarding the misuse of public funds and granting an amnesty for charges of disobedience, respectively. However, no date has been announced for the hearings.

Spain's government believes the ECJ will announce its ruling related to the embezzlement of public funds in September, although based on statistics, the court takes an average of 17.2 months to rule on preliminary questions, and the Court of Auditors issued their request back in July 2024.

Regardless of the EU Court's ruling, Spanish courts will decide whether to grant an amnesty, although they will have to consider the decisions of European judges and Spain's Constitutional Court. The court already decided in late June that the amnesty law is constitutionally binding, but some other decisions are still pending.