Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 13 November 2025 (1)
Case C‑666/24
Criminal proceedings
against
EGB,
EGC,
GTA,
SPG,
QCR,
ACB,
JRS,
RJDL,
FJG,
XBLL,
DBA,
CBE,
other parties:
Ministerio Fiscal,
Associació Catalana de Víctimes d’Organitzacions Terroristes,
Asociación de Víctimas del Terrorismo,
Asociación Dignidad y Justicia,
AEGC,
AUGC,
Partido político VOX
(Request for a preliminary ruling from the Audiencia Nacional (National High Court, Spain))
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Combating terrorism – Movement for Catalan independence – Compatibility of Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia with EU law – Directive (EU) 2017/541 – Exemption from criminal liability for persons accused of terrorist offences not resulting
in serious breaches of human rights – Concept of ‘serious breaches of human rights’ – International humanitarian law – Legal certainty – Principle of the protection of legitimate expectations – Articles 20 and 21 of the Charter of Fundamental Rights of the European Union – Primacy of EU law )
Table of contents
Introduction
Legal framework
European Union law
The Charter
Directive 2017/541
Spanish law
The Criminal Code
The LOA
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
Analysis
The first, second, third, fifth and sixth questions
The general framework of EU law and the status conferred on amnesty
The content of Directive 2017/541 and its silence on amnesty
The legal basis of Directive 2017/541: Article 83 TFEU and its implications
International standards and the case-law of the European Court of Human Rights on amnesty
Assessment of the compatibility of the LOA with Directive 2017/541 in the light of the factors analysed
The fourth question
First part: the exclusion clause based on serious breaches of human rights
Second part: the scope of Article 1 of the LOA and the principles of legal certainty and legitimate expectations
The eighth question
The seventh question
The ninth question
Conclusion
Introduction
1.        ‘There should be a general amnesty concerning past events towards all persons except the Thirty, the Ten, the Eleven, and the magistrates in Piraeus; and these too should be included if they should submit their accounts in the usual way’ (2) In the Athenian Constitution, Aristotle thus records the explicit desire for political reconciliation which accompanied the restoration of democracy in Athens in 403 BC, after the Thirty Tyrants. The content of that amnesty (3) was of major institutional significance. To restore civil peace, the restored democrats proclaimed a general amnesty covering all acts committed under the oligarchic regime, with the exception of certain political leaders (the Thirty, the Ten, the Eleven and the rulers of Piraeus). However, these could benefit from the amnesty if they agreed to submit to the examination of accountability (euthynai).
2.        The situation revealed by that amnesty is already the focus of the legal issues surrounding modern amnesties. (4) It highlights the mechanism of forgetting which, both individually and collectively, allows wounds to be healed and the journey to be continued. This is deliberate forgetting, an institutional refusal to bear grudges, conceived as a means of social reconciliation. (5) However, the key question remains: how can peace and justice be reconciled? (6) In other words, are there any limits to the quest for social harmony when the need for justice is paramount? (7) The Athens example shows that a possible approach is to make amnesty subject to prior review. Although amnesty was general, it applied to former leaders only on condition that they complied with the examination of accountability (euthynai), thus balancing civil reconciliation with individual responsibility. Almost two and a half millennia after the amnesty granted in Athens in 403 BC, following the Thirty Tyrants, the dilemmas, both ethical and purely legal, posed by the search for a balance between the demand for justice and the need for reconciliation, remain a constant problem, including in amnesties granted in the modern era, whatever the period or the political context.
3.        Moreover, the painful post-war period and its plethora of amnesty laws provides an illustration of the different scenarios. Let us start with the particularly telling example of the Oradour-sur-Glane massacre, a war crime committed inter alia by Alsatian conscripts. (8) Then there were the crimes and offences committed during the conflict by collaborators, the actions of the Resistance, but also the crimes committed in the aftermath of the conflict during the ‘“wild” purge’. (9)
4.        Lastly, I should mention the amnesty laws concerning crimes committed in Algeria. (10) It goes without saying that the traditional approach, which is (too?) concerned with de-escalation, is no longer in tune with human rights, at least when it comes to particularly serious crimes. (11)
5.        That issue is at the heart of the present case. On 10 June 2024, the Cortes Generales (Spanish Parliament) adopted Ley Orgánica 1/2024 de amnistía para la normalización institucional, política y social en Cataluña (Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia)
(‘the LOA’). (12) The material and temporal scope of the LOA includes acts giving rise to criminal or administrative liability or liability in respect of public funds, carried out in connection with the referendum on the independence of Catalonia, and acts carried out in connection with the Catalan independence process.
6.        There is no denying that the LOA has provoked a profound and virulent debate within Spain’s political class, institutions, judiciary, academic world and, more generally, Spanish society.
7.        From a legal point of view, the question of the legality of the LOA has recently been referred, by way of a constitutional review, to the Tribunal Constitucional (Constitutional Court, Spain). With the exception of two provisions, that court declared it consistent with the Constitución española (Spanish Constitution)
(‘the Constitution’) (13) in a judgment of 26 June 2025. (14)
8.        The present case requires the Court to rule on the compatibility of the LOA, covering criminal offences related to terrorism, with primary law, secondary law and general principles of EU law. In particular, the request for a preliminary ruling from the Audiencia Nacional (National High Court, Spain) arises in the context of criminal proceedings brought against 12 persons accused of acts constituting terrorist offences, (15) in the context of the movement for Catalan independence. It concerns the interpretation, first, of Directive (EU) 2017/541 on combating terrorism, (16) secondly, Article 20(2) and Article 21(1) TFEU, and Article 4(2) and (3) TEU, thirdly, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, fourthly, the principles of legitimate expectations, legal certainty and the primacy of EU law.
9.        The case thus raises a novel question of major importance: what must be the extent and intensity of the Court’s review where a national amnesty law may, on the one hand, weaken the effectiveness of a directive laying down a minimum level of harmonisation in the fight against terrorism and, on the other, undermine the guiding principles of EU primary law?
Legal framework
European Union law
The Charter
10.      Article 20 of the Charter provides that ‘everyone is equal before the law’.
11.      Article 21 of the Charter provides as follows:
‘1.      Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2.      Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.’
Directive 2017/541
12.      Recitals 2, 8, 34, 35 and 39 of Directive 2017/541 state the following:
‘(2)      Acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, and enjoyment of human rights and fundamental freedoms on which the Union is founded. They also represent one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the Union is based.
…
(8)      This Directive exhaustively lists a number of serious crimes, such as attacks against a person’s life, as intentional acts that can qualify as terrorist offences when and in so far as committed with a specific terrorist aim, namely to seriously intimidate a population, to unduly compel a government or an international organisation to perform or abstain from performing any act, or to seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation. The threat to commit such intentional acts should also be considered to be a terrorist offence when it is established, on the basis of objective circumstances, that such threat was made with any such terrorist aim. By contrast, acts aiming, for example, to compel a government to perform or abstain from performing any act, without however being included in the exhaustive list of serious crimes, are not considered to be terrorist offences in accordance with this Directive.
…
(34)      Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the need for Union-wide harmonised rules, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 [TEU]. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(35)      This Directive respects the principles recognised by Article 2 TEU, respects fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter, including those set out in Titles II, III, V and VI thereof … This Directive has to be implemented in accordance with those rights and principles taking also into account the [Convention for the Protection of Human Rights and Fundamental Freedoms], (17) the International Covenant on Civil and Political Rights, (18) and other human rights obligations under international law.
…
(39)      The implementation of criminal law measures adopted under this Directive should be proportional to the nature and circumstances of the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness, racism or discrimination.’
13.      Under Article 1 of that directive, entitled ‘Subject matter’:
‘This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities, as well as measures of protection of, and support and assistance to, victims of terrorism.’
14.      Article 2 of that directive, entitled ‘Definitions’, provides:
‘For the purposes of this Directive, the following definitions apply:
…
(3)      “terrorist group” means a structured group of more than two persons, established for a period of time and acting in concert to commit terrorist offences; “structured group” means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.’
15.      Article 3 of Directive 2017/541, entitled ‘Terrorist offences’, reads as follows:
‘1.      Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2:
…
(d)      causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;
…
(f)      manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological, radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear weapons;
…
2.      The aims referred to in paragraph 1 are:
(a)      seriously intimidating a population;
(b)      unduly compelling a government or an international organisation to perform or abstain from performing any act;
(c)      seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.’
16.      Article 4 of that directive, entitled ‘Offences relating to a terrorist group’, provides:
‘Member States shall take the necessary measures to ensure that the following acts, when committed intentionally, are punishable as a criminal offence:
(a)      directing a terrorist group;
(b)      participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.’
17.      In accordance with Article 13 of Directive 2017/541, entitled ‘Relationship to terrorist offences’:
‘For an offence referred to in Article 4 or Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary, in so far as the offences referred to in Articles 5 to 10 and 12 are concerned, to establish a link to another specific offence laid down in this Directive.’
18.      Article 14 of that directive, entitled ‘Aiding and abetting, inciting and attempting’, provides in paragraph 3:
‘Member States shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, Article 9(1), point (a) of Article 9(2), and Articles 11 and 12, with the exception of possession as provided for in point (f) of Article 3(1) and the offence referred to in point (j) of Article 3(1), is punishable.’
19.      Article 15 of that directive, entitled ‘Penalties for natural persons’, provides in paragraph 1:
‘Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 to 12 and 14 are punishable by effective, proportionate and dissuasive criminal penalties, which may entail surrender or extradition.’
Spanish law
20.      In Spain, Directive 2017/541 was transposed by Ley Orgánica 1/2019 por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, para transponer Directivas de la Unión Europea en los ámbitos financiero y de terrorismo, y abordar cuestiones de índole internacional (Organic Law No 1/2019 amending Organic Law No 10/1995 of 23 November 1995 on the Criminal Code, in order to transpose EU directives in the areas of finance and terrorism and to address certain issues of an international nature) of 20 February 2019
(‘Organic Law No 1/2019’), (19) which entered into force on 13 March 2019.
21.      Of the provisions referred to in the reference for a preliminary ruling, the only ones amended by Organic Law No 1/2019 are Article 572 and Article 573(1) of Ley Orgánica 10/1995, del Código Penal (Organic Law No 10/1995 on the Criminal Code)
of 23 November 1995 (‘the Criminal Code’). (20)
The Criminal Code
22.      Article 16(1) of the Criminal Code provides:
‘An attempted offence occurs where the individual concerned initiates the execution of an offence directly through external acts and performs all or some of the actions which objectively should produce an outcome, but that outcome does not occur, however, owing to reasons outside the perpetrator’s control.’
23.      Under Article 62 of the Criminal Code:
‘Perpetrators of an attempted offence shall receive a sentence that is one or two levels lower than the sentence indicated by law for the offence committed, and of a length that is deemed appropriate taking into
account the danger inherent in the attempt and the degree of execution achieved.’
24.      Article 346 of the Criminal Code provides:
‘1.      Anyone who, by causing explosions or by using any other method having a similar destructive force, causes the destruction of airports, ports, stations, buildings, public premises, warehouses containing flammable or explosive materials, communication routes, public modes of transport, or the sinking or stranding of a ship, or flooding, or blows up a mine or industrial plant, or causes the removal of rails from a railway line, malicious changes to the signals or signs used in the operation of a railway line to ensure the safety of modes of transport, or blows up a bridge, or causes the destruction of public highways, damage to oil pipelines, serious disruption to any type or means of communication, disruption or interruption of the supply of water, electricity, fossil fuels or another essential natural resource, shall be imprisoned for a term of 10 to 20 years, where the destruction necessarily puts people’s lives or safety in danger.
2.      Where there is no such danger, the punishment shall be a term of imprisonment of four to eight years.
3.      If, in addition to danger, injury is caused to the lives, physical integrity or health of individuals, those acts shall be punished separately with the sentence applicable to the offence committed.’
25.      Article 571 of the Criminal Code provides:
‘For the purposes of this Code, associations which satisfy the characteristics laid down, respectively, in the second subparagraph of Article 570 bis(1) and in the second subparagraph of Article 570 ter(1), and which have as their aim or objective the commission of any of the offences defined in the next section, shall be considered to be terrorist organisations or groups.’
26.      Under Article 572 of the Criminal Code:
‘1.      Anyone who promotes, creates, organises or directs a terrorist organisation or group shall be punished with a term of imprisonment
of 8 to 15 years and disqualification from holding any public office during the term of the sentence.
2.      Anyone who actively participates in or is a member of such an organisation or group shall be punished with a term of imprisonment
of 6 to 12 years and disqualification from holding any public office during the term of the sentence.’
27.      Article 573 of the Criminal Code is worded as follows:
‘1.      The following shall be treated as terrorist offences: the commission of any serious offence against life or physical integrity, freedom, psychological integrity, sexual freedom and integrity, property, natural resources or the environment, public health, any serious offence triggering a risk of a disaster, arson, forgery of documents, attacks against the Crown, attacks against a representative of the authorities or a public official in the fulfilment of his or her duties
and the possession, trafficking and storing of weapons, munitions or explosives, as provided for in this Code, and the seizure of aircraft, ships or other means of public or goods transport, where these are carried out with any of the following aims:
(1a)      subverting the constitutional order or removing,
or seriously destabilising the functioning of,
the political institutions or the economic or social structures of the State, or compelling the public authorities to perform or abstain from performing any act;
(2a)      seriously
disrupting the public peace.
(3a)      seriously destabilising the functioning of an international organisation;
(4a)      creating a state of terror in the population or part of that population.
2.      The computer-related offences defined in Articles 197 bis, 197 ter and 264 to 264 quater shall also be treated as terrorist offences where the acts are committed with any of the aims referred to in the previous paragraph.
3.      The other offences defined in this Chapter shall also be treated as terrorist offences.’
28.      Article 573 bis of the Criminal Code provides:
‘1.      The terrorist offences referred to in paragraph 1 of the previous article shall be punished with the following sentences:
…
3.      a term of imprisonment of 15 to 20 years where an
abortion is induced as referred to in Article 144, where injuries are caused of the kind defined in Articles 149, 150, 157 or 158, where a person is kidnapped, or in the case of destruction or arson as provided for in Articles 346 and 351 respectively.’
29.      Article 574(1) of the Criminal Code provides:
‘The storing of weapons or munitions, the possession or storing of explosive, flammable, incendiary or asphyxiating substances or devices, or their components, together with their manufacture, trafficking, transport or supply in any form, and the mere planting or use of such substances or of the appropriate means or mechanisms, shall be punished with a term of imprisonment
of 8 to 15 years where the acts are committed with any of the aims set out in Article 573(1).’
The LOA
30.      The preamble to the LOA states, inter alia:
‘I      [first paragraph]
Any amnesty is conceived as a legal construct intended to create an exception to the application of provisions that are fully in force where the acts that have been declared or are defined as criminal offences or as giving rise to any other type of liability took place in a specific context.
…
V      [eighth, ninth and thirteenth paragraphs]
The proportionality of the law derives from the statement listing specific acts that have been declared or are defined as offences and conduct to be amnestied and the necessary link between those offences and conduct and the acts carried out in a period of time delimited by law. This avoids a generic, imprecise determination, and prevents the amnesty from covering other types of acts not directly connected to the independence process and its consequences, the exoneration of which would have no place in the foundation on which this measure is built.
All of this is connected to the principle that the penalty must be appropriate to the offence and to the purpose of the legislation, which is tied to the mandate to optimise citizens’ rights derived from Article 9 of the Constitution and intended to apply to all public authorities, but particularly to the legislature …
…
In conclusion, this law seeks to provide legal certainty, respect for the principle of legality and a legal framework for the impartial protection of fundamental rights, taking into account the recommendations of the [European Commission for Democracy through Law (21)] which, in its opinion of 2013, [(22)] emphasised the importance of maintaining a clear distinction between the legislative and judicial powers in the implementation of amnesty, ensuring respect for judicial autonomy and democratic principles.
VI      [fourth, eighth and ninth paragraphs]
This approach, which is in any case abstract since it in no way involves an assessment as to the existence of facts capable of being included in each of these exclusions, is essential in accordance with what the Venice Commission of the Council of Europe
stated in its opinion of 11 March 2013, adopted at its 94th plenary meeting. Thus, it is the responsibility of the legislature to establish the criteria used to determine who may benefit from the amnesty, and it is the responsibility of the judiciary to identify the specific persons who come within the scope defined by the legislature.
…
An example of the [abovementioned balance between amnesty and respect for human rights and Spain’s international commitments] is the reference to the acts provided for in Article 3 of Directive [2017/541], or in Article 3 [ECHR], prohibiting torture and inhuman or degrading treatment or punishment, which constitute a limit that cannot be exceeded. However, it should be recalled that not all degrading acts are covered by that provision, since, for that to be the case, in addition to being unlawful, the act must have a minimum degree of seriousness. Thus, in accordance with the case-law of the European Court of Human Rights, [(23)] for an act to be considered degrading in accordance with Article 3 [ECHR], it will usually be necessary for the bodily injury caused or the suffering experienced by the victim to be of a certain intensity or, in any event, to be capable of overcoming a person’s psychological or physical resilience. A restrictive criterion for exclusions has been opted for in the application of the present law, due to the fact that certain conduct may create confusion with other offences, which would occur in the case of certain acts included in Book II, Title XXII, Chapter VII of the Criminal Code.
In accordance with the guidelines of the Venice Commission, a precise and detailed definition of acts eligible for amnesty has been established in order to ensure legal certainty and equality before the law. …’
31.      Article 1 of the LOA, entitled ‘Objective scope’, provides:
‘1.      The following acts giving rise to criminal or administrative liability or liability in respect of public funds, performed in the context of the consultations held in Catalonia on 9 November 2014 and 1 October 2017, and the preparation or consequences thereof, are hereby amnestied, provided that they were carried out between 1 November 2011 and 13 November 2023, together with the following actions carried out between those dates in relation to the so-called Catalan independence process, even if they are not related to the abovementioned consultations or were carried out after those consultations took place:
(a)      Acts committed with the intention of claiming, promoting or procuring the secession or independence of Catalonia, as well as acts that contributed to the achievement of such aims.
…
(b)      Acts committed with the intention of calling for, promoting or procuring the holding of the consultations that took place in Catalonia on 9 November 2014 and 1 October 2017 by any person who lacked the authority to do so or whose actions in calling or holding those consultations have been declared unlawful, as well as acts that contributed to the holding of those consultations.
…
(c)      Acts of disobedience, whatever their nature, public disorder, attacks against the authorities, their agents and public officials, or acts of resistance carried out with the aim of enabling the holding of the popular consultations referred to in subparagraph (b) above,
and the consequences of such acts, as well as any other acts defined as criminal offences carried out with the same intention.
…
(d)      Acts of disobedience, whatever their nature, public disorder, attacks against the
authorities, their agents and public officials, or acts of resistance or other acts against public peace and order carried out with the aim of demonstrating support for the objectives and aims described in the previous subparagraphs or for those charged with or convicted of carrying out any of the offences covered by the present article.
(e)      Acts committed during police operations intended to impede or prevent the commission of acts giving rise to criminal or administrative liability covered by the present article.
(f)      Acts committed with the aim of encouraging, procuring or enabling any of the acts giving rise to criminal or administrative liability or liability in respect of public funds referred to in the preceding subparagraphs of the present article, together with any other acts materially
connected to such acts.
2.      The acts giving rise to criminal or administrative liability or liability in respect of public funds which were amnestied under paragraph 1 of the present article will be amnestied irrespective of their level of implementation, including preparatory acts, and irrespective of the form of involvement, be it perpetration or participation.
3.      Acts that were commenced before 1 November 2011 will be deemed to fall within the scope of the present law only if they were completed after that date.
Acts that were commenced before 13 November 2023 will also be deemed to fall within the scope of the present law even if they were completed after that date.
4.      The use of public funds for the purposes described in subparagraphs (a) and (b) shall not be considered enrichment where, irrespective of whether such use complies with the law, it was not intended to obtain a personal financial gain.’
32.      Article 2 of the LOA, entitled ‘Exclusions’, provides:
‘In any event, the following shall be excluded from application of the amnesty described in Article 1:
(a)      Intentional acts against persons which result in death, abortion or injuries to a foetus, the loss of an organ or limb or of its use, the loss of a sense or of its use, impotence, sterility or a serious deformity.
(b)      Acts classified as offences of torture or inhuman or degrading treatment in accordance with Article 3 [ECHR], with the exception of treatment which does not exceed a minimum threshold of seriousness on the grounds that it is not such as to humiliate or degrade a person or diminish their human dignity or provoke fear, anxiety or inferiority of a kind capable of overcoming their psychological and physical resilience.
(c)      Acts which on account of their aim may be classified as terrorism, in accordance with Directive [2017/541] and which have also intentionally caused serious breaches of human rights, in particular those governed by Articles 2 and 3 [ECHR] and by international humanitarian law.
(d)      Acts classified as offences where it has been identified that these were motivated by racist, antisemitic, anti-Roma or other types of discrimination relating to the victim’s religion and beliefs, the victim’s ethnicity or race, sex, age, sexual or gender orientation or identity, reasons relating to gender, aporophobia or social exclusion, a disease from which the victim suffers or his or her disability, irrespective of whether those conditions or circumstances are actually present in the person against whom the conduct was perpetrated.
(e)      Acts that constitute criminal offences affecting the financial interests of the European Union.
(f)      Acts classified as offences of treason and offences against the peace or independence of the State and concerning national defence as referred to in Book II, Title XXIII of the Criminal Code, provided that there has been an actual and genuine threat and the use of actual force against the territorial integrity or the political independence of Spain in the terms laid down in the Charter of the United Nations or in Resolution 2625 (XXV) of the United Nations General Assembly of 24 October 1970, which includes the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
(g)      Acts classified as crimes against the international community, covered by Book II, Title XXIV of the Criminal Code.’
33.      Article 4 of the LOA, entitled ‘Effects on criminal liability’, reads as follows:
‘Without prejudice to Article 163 of the Constitution and Article 267 [TFEU], after the entry into force of this law:
(a)      The judicial body hearing a case shall order the immediate release of those who have been granted amnesty and are in prison, whether in provisional detention or serving a sentence.
That judicial body shall also order the immediate lifting of any interim measure of a personal or objective nature that may have been ordered in respect of actions or omissions falling within the objective scope of this law, subject only to the civil measures referred to in Article 8(2).
(b)      That judicial body shall suspend committal orders issued against the persons referred to in this law as well as national, European and international arrest warrants.
(c)      The suspension of criminal proceedings for any reason does not prevent the lifting of interim measures that may have been ordered before the entry into force of this law which would entail deprivation of the exercise of fundamental rights and public freedoms.
(d)      That judicial body shall terminate the enforcement of all custodial sentences, disqualifications and fines imposed as a principal or ancillary penalty and which arise from amnestied actions or omissions.
(e)      Custodial sentences served in whole or in part may not be deducted in other criminal proceedings where the acts for which the sentence was served are amnestied under this law. The same rule shall apply to periods of provisional detention which are not followed by a conviction as a result of the entry into force of this law.
(f)      The entry in the criminal record resulting from the conviction for the amnestied offence shall be deleted.’
34.      In accordance with Article 9 of the LOA, entitled ‘Jurisdiction to apply the amnesty’:
‘1.      Amnesty for acts constituting an offence shall be applied by the courts referred to in Article 11 of this law, ex officio or at the request of a party or the Ministerio Fiscal [Public Prosecutor’s Office, Spain] and, in any event, after hearing the Public Prosecutor’s Office and the parties.
2.      Amnesty for acts constituting administrative breaches or giving rise to liability in respect of public funds shall be applied by the bodies competent to initiate, deal with or resolve the procedures corresponding to those acts, depending on the progress of those acts, after hearing the person concerned.
3.      A specific act giving rise to criminal or administrative liability or liability in respect of public funds may be considered to have been amnestied only when such amnesty has been declared by a final decision issued by the competent body in accordance with the provisions of this law.’
35.      Article 10 of the LOA, entitled ‘Preferential and urgent handling’, provides:
‘The application of the amnesty in each case shall be the responsibility of the judicial, administrative or accounting bodies designated in this law, which shall adopt the relevant decisions in compliance with this law, as a matter of priority and urgency, regardless of the stage of the administrative procedure or judicial proceedings or proceedings relating to public funds concerned.
Decisions will be delivered within a maximum period of two months, without prejudice to subsequent appeals, which shall not have suspensory effect.’
36.      Article 11 of the LOA, entitled ‘Proceedings in criminal matters’, provides in paragraph 1:
‘Judicial bodies shall apply the amnesty at any stage of the criminal proceedings.’
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
37.      In accordance with Article 650 of the Ley de Enjuiciamiento Criminal (Law on Criminal Procedure), approved by Real Decreto (Royal Decree) of 14 September 1882, (24) the Public Prosecutor’s Office lodged a provisional indictment with the Juzgado Central de Instrucción no 6 de la Audiencia Nacional (Central Court of Preliminary Investigation No 6 of the National High Court, Spain) by which it brought criminal proceedings against 12 of the persons under investigation. (25) In particular, the Public Prosecutor’s Office accuses those 12 persons of having committed the offence of membership of a terrorist organisation. (26) Moreover, it accuses eight of them of being responsible for the possession, storage and manufacture for terrorist purposes of explosive or flammable substances or devices or components thereof and of attempted destruction of a terrorist nature. (27)
38.      In addition, certain Spanish associations (28) and the political party VOX brought an
actio popularis
under Article 125 of the Constitution within the criminal proceedings brought by the Public Prosecutor’s Office against the same persons under investigation, accusing them of the same offences as the Public Prosecutor’s Office, but requesting harsher penalties than those sought by the Public Prosecutor.
39.      In particular, it is apparent from the request for a preliminary ruling that, both in the indictment of the Public Prosecutor’s Office and in the indictment of the actio popularis, the defendants are accused of membership of the Comités de Defensa de la República (Committees for the Defence of the Republic)
(‘the CDRs’) and the Equipo de Respuesta Táctica (Tactical Response Team)
(‘the ERT’).
40.      According to the Public Prosecutor’s Office, the CDRs organised many acts and actions in Catalonia, some of which constituted offences, as part of a planned and organised strategy to subvert the constitutional order. That strategy took the form of a refusal to follow the legal channels offered by the rule of law to express political and social demands and a direct call for disobedience and the commission of actions intended to cause mass disorder. The aim was to impose a situation of fait accompli by taking control of the territory and disrupting strategic, economic and supply sectors.
41.      With regard to the ERT, the indictment presents it as a cell made up of defendants belonging to different CDRs and characterised by a high degree of radicalism. The members are united by extreme activism aimed at achieving Catalan independence through the use of violence ‘in its fullest sense’, in order to force the institutions to recognise, de facto, the separation of Catalonia from the rest of Spain. They are said to have participated in some of the most violent actions attributed to the CDRs, targeting in particular sensitive infrastructures and, in some cases, members of the State police and security forces. The actio popularis also alleges that the ERT carried out attacks against extremely important public institutions, such as the occupation of town halls and the planned occupation of the Parliament of Catalonia.
42.      It is also apparent from the indictment that the accused, as members of the ERT, contributed to the creation and development of coordination centres for the actions of the CDRs, in accordance with the task entrusted to them by a Catalan entity known as the Centro Nacional de Inteligencia (National Intelligence Centre). That task consisted of providing the logistical infrastructure necessary to commit an act aimed at occupying and holding the Parliament of Catalonia, given the group’s technical and human capabilities. They are accused of having set up a parallel terrorist organisation, which was clandestine and stable in nature and which had the aim of carrying out violent acts or attacks against specific targets, using explosives or incendiary substances manufactured in two clandestine laboratories set up in two private homes.
43.      Once the investigation stage had been completed, the case was referred to the referring court, which is responsible for the intermediate and oral part of the procedure.
44.      The LOA entered into force on 11 June 2024. The referring court has doubts as to the application of that law in the present case, in particular in the light of the inclusion
in the scope of the amnesty of acts that may be classified as terrorist acts under Directive 2017/541.
45.      On 27 June 2024, the referring court held a hearing in order to examine the amnesty relied on as a plea of illegality, which had to be decided before any debate on the substance of the case. The accused reiterated their request that the amnesty be applied. The Public Prosecutor’s Office supported that request, taking the view that the amnesty should be declared to be applicable to the acts forming the subject matter of the proceedings, since it had been approved by the Cortes Generales (Spanish Parliament), its temporal and material scope covered the offences in question and the exclusion provided for in Article 2(c) of the LOA did not apply. The actio popularis expressed its opposition to the application of the LOA, arguing, inter alia, that it infringed the principles of equality, effectiveness and legal certainty.
46.      The referring court states that it is now for it to decide whether or not to uphold the objection raised in limine litis or, in other words, whether or not to apply the amnesty. (29)
47.      In those circumstances, the Audiencia Nacional
(National High Court)
decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Directive [2017/541] be interpreted as precluding national legislation, such as [the LOA], which prohibits the prosecution of and, as the case may be, the imposition of criminal penalties on, those who actively participate in the activities of a terrorist group, thereby extinguishing their criminal liability?
(2)      Must Directive [2017/541], specifically Article 13 thereof, be interpreted as precluding national legislation, such as [the LOA], which prohibits the prosecution of and, as the case may be, the imposition of criminal penalties on, those who actively participate in the activities of a terrorist group, thereby extinguishing their criminal liability, by laying down an additional requirement for the purposes of punishment, to the effect that, in addition to participation in a terrorist group, those persons must actually and intentionally have caused serious breaches of human rights?
(3)      Must Directive [2017/541] be interpreted as precluding national legislation, such as [the LOA], which, in respect of the terrorist offences and offences related to a terrorist group laid down in that directive, draws a distinction according to whether or not those offences actually and intentionally caused serious breaches of human rights, such that that distinction makes it possible for some of those terrorist offences or offences related to terrorism to be exempted from criminal liability?
(4)      Must the principle of legal certainty in EU law, which is enshrined in the case-law of the [Court], be interpreted as precluding national legislation, such as [the LOA], which makes the exemption from criminal liability through the amnesty for persons accused of conduct capable of falling within the scope of Directive [2017/541] subject to the condition that they must not have intentionally caused serious breaches of human rights, in particular the rights governed by Articles 2 and 3 [ECHR] and international humanitarian law, without stipulating which acts constitute such infringements or the threshold of seriousness which must be passed in order to render the amnesty inoperative? Alternatively, are the principles of legitimate expectations and legal certainty in EU law incompatible with a rule, such as that contained in Article 1 of [the LOA], which sets vague objective and subjective parameters for determining whether or not criminal liability has been established?
(5)      Must Directive [2017/541] be interpreted as precluding national legislation, such as [the LOA], which prohibits the prosecution of and, as the case may be, the imposition of criminal penalties on, those who manufacture, possess, acquire, transport, supply or use explosives for terrorist purposes, thereby extinguishing their criminal liability?
(6)      Must Directive [2017/541] be interpreted as precluding national legislation, such as [the LOA], which prohibits the prosecution of and, as the case may be, the imposition of criminal penalties on – thereby extinguishing their criminal liability – those who, for terrorist purposes, commence violent acts by setting targets for extensive destruction on the grounds that those targets represent a conflict with the ideology of the terrorist group, by the performance of surveillance or by the photographic documentation of public places to destroy – in particular, premises of the Public Prosecutor’s Office, State law enforcement authorities, autonomous institutions, and police vehicles – all with a view to ensuring the full execution of the violent plan devised by the terrorist group, with the aim of successfully carrying out that destruction?
(7)      Must the principle of primacy of EU law, which is enshrined in the case-law of the [Court of Justice], and the principle of cooperation in good faith laid down in Article 4(3) TEU be interpreted as precluding national legislation, such as [the LOA], which exempts from criminal liability[,] through the amnesty[,] persons accused of conduct which falls within the scope of Directive [2017/541]?
(8)      Must Article 20 and Article 21 of the [Charter] be interpreted as precluding national legislation, such as [the LOA], which exempts from criminal liability[,] through the amnesty[,] persons accused of criminal acts in Spain which fall within the scope of Directive [2017/541], by reason of the ideological aim pursued through those criminal acts?
(9)      Must Article 4(2) TEU and Articles 20(2)(a) and 21(1) TFEU be interpreted as precluding national legislation, such as [the LOA], which, through the amnesty, exempts persons accused of terrorism from criminal liability on the grounds that the acts concerned were committed with the aim of segregating part of the national territory of that Member State?’
48.      Written observations were submitted by the accused, the actio popularis, the Public Prosecutor’s Office, the European Commission and the Spanish Government. Those parties also presented oral argument at the hearing held in public on 15 July 2025.
Analysis
49.      It should be noted at the outset that the questions referred by the national court may be divided into two separate groups. The first, which brings together the majority of those questions, concerns the compatibility of the LOA with Directive 2017/541. The second group concerns the conformity of the LOA with certain general principles of EU law, such as legal certainty, equality before the law and the primacy of EU law. It therefore seems appropriate to examine those questions by addressing them in turn according to that division and in that order.
The first, second, third, fifth and sixth questions
50.      By the first, second, third, fifth and sixth questions, the referring court asks, in essence, whether Directive 2017/541 must be interpreted as precluding national legislation such as the LOA. That law provides for the extinction of criminal liability of any person who has actively participated in the activities of a terrorist group or carried out other acts covered by that directive, in particular the manufacture, possession, acquisition, transport, supply or use of explosives for terrorist purposes, or the implementation of violent acts prepared by the planning of targets, their surveillance or their photographic documentation. However, it makes exemption from prosecution conditional on those acts not having intentionally and actually caused serious breaches of human rights, without specifying the exact nature of the acts or the relevant threshold of seriousness. Such legislation would thus draw a distinction between terrorist offences according to their consequences and risks undermining the effectiveness of Directive 2017/541 and the obligation to take action and impose effective criminal penalties.
51.      In other words, and to summarise, the essence of a combined reading of the five questions cited above is that they seek to determine whether the LOA, which amnesties certain acts falling within the scope of Directive 2017/541, undermines the effectiveness of that directive. (30) It is therefore not an initial failure to transpose the directive, but a measure adopted subsequently, which, according to the referring court, neutralises the application of national provisions that have already transposed the directive and, ultimately, the directive itself. The central question is therefore whether, by extinguishing criminal liability for such acts, that amnesty law deprives the directive of its full effectiveness.
52.      The answer to that complex question requires several parameters to be taken into account. In the first place, it is necessary to clarify the way in which EU law approaches the amnesty measure, that is to say, whether it is a matter which is harmonised or which falls within the exclusive competence of the Member States. From that perspective, it will be relevant to examine how EU law, and in particular the instruments relating to judicial cooperation between Member States, view that institution. In that regard, it is important to determine what the Court’s case-law on amnesty reveals and its impact on the obligation for the Member States to guarantee the effective application of EU law.
53.      In the second place, having set out the general framework of EU law and the status conferred on amnesty, it is necessary to look at the actual wording of Directive 2017/541 and to examine what it stipulates with regard to whether or not an amnesty may be granted and, if it cannot, what are the relevant conclusions to be drawn, as they emerge from its wording, and in particular from the recitals of that directive.
54.      In the third place, it is necessary to place that directive in the legal framework in which it was adopted, namely Article 83 TFEU, and to examine the extent to which that legal basis clarifies and defines the obligation on the Member States to prevent any situation of impunity.
55.      In the fourth place, in so far as amnesty is a mechanism which directly affects national sovereignty and, as such, falls within the margin of discretion afforded to the Member States, it is necessary to consider how the standards established in the case-law of the European Court of Human Rights define the scope of an amnesty which is permissible in the light of international obligations.
56.      In the fifth and last place, it is necessary to assess whether, taking all those factors into account, it can be concluded that the effectiveness of Directive 2017/541 is, in the present case, compromised by the adoption of the LOA.
The general framework of EU law and the status conferred on amnesty
57.      In the first place, it should be noted that the Court held, in its judgment in AB and Others (Revocation of an amnesty), that ‘EU law does not govern the adoption and revocation of an amnesty’. (31) It follows that amnesty is a non-harmonised matter which falls within the exclusive competence of the Member States.
58.      In that judgment, the Court clarified the way in which EU law may be combined with national legislative acts concerning the revocation of an amnesty. It was thus asked, inter alia, to rule on the compatibility with EU law of national legislation limiting the review carried out by the constitutional court solely to the compliance of a law revoking an amnesty with the national constitution, without examining its compliance with EU law. The Court held that such a procedure, since it is not intended to implement EU law, remains outside its scope and therefore falls outside its jurisdiction. (32)
59.      Although the case in the main proceedings and the case which gave rise to the judgment in AB both concern an amnesty measure, they differ in that the former concerns the application of an amnesty law, whereas the latter concerned its revocation.
60.      Nevertheless, the guidance set out in the judgment in AB remains entirely relevant. The revocation of an amnesty, as well as the internal procedure for reviewing its compliance with the national Constitution, are matters of domestic law alone and, in principle, fall outside the scope of EU law. Accordingly, although the procedures for adopting or discontinuing an amnesty are a matter for the national legal order, it is nevertheless for the EU Courts, where they are called upon to assess the effect of such a measure on the implementation of secondary legislation, to allow the Member States a sufficiently broad discretion, subject to compliance with the obligations arising from EU law.
61.      Moreover, as the Spanish Government pointed out in its written and oral observations, amnesty is widely recognised by EU law as a measure which may be provided for and applied by the national legal systems, in particular in the context of judicial cooperation. In that regard, Article 10(1)(d) of Directive 2011/99/EU on the European protection order (33) allows the competent authority of the executing State to refuse to recognise such an order where the protection derives from the execution of a penalty or measure that, according to the law of the executing State, is covered by an amnesty and relates to an act which, under that law, falls within the competence of that State.
62.      Moreover, Framework Decision 2002/584 also provides, in Article 3(1), that the judicial authority of the Member State of execution is to refuse to execute the European arrest warrant if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law. Lastly, other instruments applying the principle of mutual recognition in the context of judicial cooperation in criminal matters provide that an amnesty or a pardon may be granted by both the issuing State and the executing State. (34)
63.      It follows that, in the EU legal order, amnesty remains a prerogative of the Member States. EU law merely recognises its existence and takes it into account in its instruments of judicial cooperation, without however harmonising its content or the conditions for granting it.
The content of Directive 2017/541 and its silence on amnesty
64.      In the second place, it is apparent from the very wording of Directive 2017/541 that its adoption is in response to the need for more substantial approximation than that achieved by Framework Decision 2002/475/JHA on combating terrorism. (35) That strengthening is justified, on the one hand, by the evolution of terrorist threats and, on the other, by the legal obligations on the European Union and Member States under international law. Given the cross-border nature of the phenomenon, Directive 2017/541 expressly emphasises the need for a coordinated response and increased cooperation both within and between the Member States. (36)
65.      It should be noted that, although Directive 2017/541 sets out among its objectives the strengthening of closer and more effective cooperation between the Member States in order to combat terrorism, it does not contain any specific provision relating to national mechanisms for extinguishing criminal liability, such as amnesty. It is therefore silent on the possibility for Member States to regulate such an institution.
66.      However, that silence cannot be interpreted as an absence of constraints. That directive states that its provisions must be applied in accordance with the values enshrined in Article 2 TEU and the fundamental rights and freedoms guaranteed by the Charter, in particular those set out in Titles II, III, V and VI thereof. (37) It also points out that their implementation must take into account the ECHR, the International Covenant on Civil and Political Rights and the Member States’ other international commitments regarding the protection of human rights. (38) Lastly, recital 37 of that directive emphasises that it should not have the effect of altering the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law. In other words, that recital sets an explicit limit on the harmonisation pursued by the EU legislature.
67.      It follows, first, that Directive 2017/541 gives Member States the option to adopt or maintain an amnesty measure in their domestic legal systems. Since amnesty is not an instrument harmonised by EU law, it is a matter of national competence.
68.      Secondly, in my view, that freedom cannot be understood as unlimited. It is true that it cannot be maintained that the requirements governing the application of Directive 2017/541, which include the rights guaranteed by the Charter, the ECHR and the principles of international humanitarian law, automatically apply to the case of partial and temporary non-application resulting from an amnesty measure. The fact remains, however, that those requirements constitute, in such a context, external guidelines, since the amnesty affects the material scope of that directive, albeit indirectly. In other words, although the amnesty is not harmonised, its adoption does not take place in a legislative vacuum. The references in that directive to the Charter, the ECHR and international humanitarian law form a relevant reference framework for assessing such a measure when it affects conduct falling within the scope of EU law.
The legal basis of Directive 2017/541: Article 83 TFEU and its implications
69.      In the third place, as regards the need to place Directive 2017/541 in the legal context of Article 83 TFEU, on which it is based, it should be recalled that that article, in conjunction with Article 82 TFEU on judicial cooperation in criminal matters, governs cooperation in criminal matters within the European Union. Article 83(1) TFEU provides that directives adopted under the ordinary legislative procedure may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension, such as terrorism. That cross-border dimension may result from the nature or effects of the offences, or from the need to combat them on a common basis.
70.      In my view, the concept of ‘minimum rules’ used in Article 83(1) TFEU implies that the directives adopted on that basis do not seek to standardise fully the criminal law of the Member States, but to effect partial harmonisation which is limited to aspects deemed essential. The Member States thus retain a margin of discretion in two respects. First, they may criminalise conduct not covered by the directive; secondly, for harmonised offences,
they may make provision for penalties that are more severe than those provided for in that directive. (39)
71.      Two conclusions can be drawn from the above findings in relation to Article 83 TFEU. First, Directive 2017/541 lays down minimum rules as to the nature of the offences which must be introduced into the national legal order of the Member States when it is transposed. In other words, while Member States retain the option of going beyond that minimum base by also criminalising conduct not covered by that directive, the offences expressly listed therein constitute an incompressible threshold which must be complied with.
72.      Secondly, it has been argued, (40) in particular by reference to the judgment in I, (41) that the Court tends to regard the offences referred to in Article 83(1) TFEU as potentially affecting the fundamental interests of society. By limiting the EU’s harmonisation powers only to those forms of behaviour that harm very important interests, that provision establishes an axiological basis for criminalisation justifying the harmonisation of criminal law. (42)
73.      Therefore, it cannot be ruled out that the extinction of criminal liability for offences covered by Directive 2017/541, including by means of mechanisms such as amnesty, must also be consistent with axiological considerations. In the absence of specific provisions on this point in that directive, it is for the Member States to determine the conditions and detailed rules for their application, within the limits of the discretion they enjoy and subject to compliance with the relevant standards, in particular those deriving from international law, including international humanitarian law.
74.      It follows that any national amnesty measure can be assessed by the Court only in the light of the ‘external limits’ to its justification, that is to say its conformity with obligations under international law, in particular humanitarian law and the instruments for the protection of fundamental rights referred to in recital 37 of Directive 2017/541. It is subject to that proviso that the relevant standards must be analysed further.
International standards and the case-law of the European Court of Human Rights on amnesty
75.      In the fourth place, following on from the foregoing, it is necessary to examine the way in which amnesty laws are now envisaged by international law, and in particular by the European Court of Human Rights, in order to identify that ‘external limit’ to their justification. More specifically, it is a question of determining the margin of discretion accorded to the Member States in that regard, as well as the limits which result from the binding obligations arising from international standards. At this stage, it is therefore important to consider how amnesties are approached in the context of comparative international law.
76.      In general, the question of amnesty is an exemplary illustration of the tension between the criminal sovereignty of States and the progressive affirmation, in international law and in the case-law of the European Court of Human Rights, of a genuine need to prosecute the most serious crimes. Traditionally, amnesties have been granted at the discretion of the State, which may decide not to prosecute certain acts, including offences of a particularly serious nature, in the name of national reconciliation or political compromise. It has also been pointed out that, historically, amnesties were considered as a valuable tool to end conflicts or to ease transitions to democracy, as was the case in Argentina, Chile and South Africa, for example. (43)
77.      However, that logic of unlimited sovereign forgetfulness is at odds with the evolution of European and international law, which increasingly enshrines the principle that no consideration of political opportunity can justify impunity for crimes such as torture, war crimes, crimes against humanity or genocide. (44) In fact, it is now generally accepted in international law that, although no treaty expressly prohibits a State from granting amnesty in relation to general or specific international crimes, it is not unreasonable to argue that customary international law no longer tolerates the granting of amnesties for war crimes and crimes against humanity, the latter including genocide. (45)
78.      An examination of the case-law of the European Court of Human Rights reveals that evolution in international law. (46) Thus, the 1991 decision in Dujardin and others v. France still showed a degree of tolerance. The European Commission of Human Rights did not consider amnesty for a massacre of gendarmes before any judgment to be contrary to Article 2 ECHR. (47)
79.      By contrast, developments in the case-law of the European Court of Human Rights have led it to consider, as in the judgment in Abdülsamet Yaman v. Türkiye, that it is ‘of the utmost importance’ for the purposes of an effective remedy that prosecution for torture is not time-barred and that an amnesty or pardon cannot be granted. (48) In the judgment in
Yeşil and Sevim v. Türkiye, the European Court of Human Rights confirmed that it is not admissible, in principle, for the outcome of criminal proceedings in respect of such acts to be compromised by exceptional measures or judicial delays contrary to the duty of diligence. (49) In the judgment in Yeter v. Türkiye, involving torture to death, the European Court of Human Rights reiterated that amnesty or pardon should never be permissible where an agent of the State is implicated for acts violating Article 3 ECHR. (50) That requirement derives from the absolute prohibition of torture, which entails a strict procedural obligation, namely that the State concerned must prosecute, try and sanction, without the possibility of neutralising those obligations by an act of clemency.
80.      This was recalled unequivocally in the judgment in
Ould Dah v. France. The European Court of Human Rights considered in that decision that an amnesty is ‘generally incompatible with the duty incumbent on the States to investigate acts of torture’. (51) The European Court of Human Rights thus closely links the effectiveness of the protection of life and human integrity with the need to prevent impunity.
81.      It is important to point out that that approach by the European Court of Human Rights forms part of a close dialogue with other international courts and bodies in respect of case-law. In the judgment in Marguš v. Croatia, the Grand Chamber of the European Court of Human Rights held that a former combatant, who was initially granted amnesty in relation to war crimes, could not rely on that measure since the acts constituted serious violations of Articles 2 and 3 ECHR. (52) In so doing, the European Court of Human Rights expressly relied on the United Nations Human Rights Committee, the case-law of the International Criminal Tribunal for the former Yugoslavia and the Inter-American Commission on Human Rights (53) to establish that there was an international consensus against granting amnesties for crimes of that nature. (54)
82.      However, it should be noted that the European Court of Human Rights does not rule out, as a matter of principle, that an amnesty measure may be compatible with the ECHR, provided that it forms part of a credible transitional justice framework. In the judgment in Marguš v. Croatia, the Grand Chamber clarified that an amnesty could, exceptionally, be accepted if accompanied by particular circumstances, such as a genuine national reconciliation process and/or effective compensation mechanisms for victims. In the present case, however, the amnesty granted was not accompanied by any compensation, that is to say, no remedial measures were provided for. The European Court of Human Rights held that, in those circumstances, ‘by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities acted in compliance with the requirements of Articles 2 and 3 [ECHR] and in a manner consistent with the requirements and recommendations of the abovementioned international mechanisms and instruments.’ (55)
83.      As has been noted, (56) that nuance reflects, in my view, the willingness of the European Court of Human Rights to take account of the political context in which certain amnesties are granted, in particular in societies in transition from armed conflict or an authoritarian regime. However, it is settled case-law of the European Court of Human Rights that criminal leniency cannot become an instrument of impunity. While it recognises that striking a balance between the requirement for peace and the obligation to pass judgment may prove delicate, it recalls that an unconditional amnesty for serious human rights violations remains, in principle, incompatible with the ECHR. (57)
84.      In short, the foregoing analysis shows that the developments in the case-law of the European Court of Human Rights are structured around three major constants. In the first place, amnesty granted for serious crimes, such as torture, war crimes or violations of the right to life, undermines the very essence of the procedural obligations under Articles 2 and 3 ECHR. In the second place, that approach is part of a broader trend in international human rights law, based on the rejection of impunity for the most serious violations. Lastly, and in the third place, only a strictly framed amnesty, as part of a genuine process of bringing justice, combining compensation for victims and, where appropriate, reconciliation, may still be considered compatible with the positive obligations of the Member States under the ECHR.
Assessment of the compatibility of the LOA with Directive 2017/541 in the light of the factors analysed
85.      In the light of the foregoing analysis, it is now necessary to assess whether all the factors examined lead to the conclusion that the effectiveness of Directive 2017/541 is compromised in the present case.
86.      As I have already noted, the referring court seeks, in essence, to ascertain whether national legislation, such as the LOA, which makes the extinction of criminal liability subject to the condition that the acts concerned did not actually and intentionally give rise to serious breaches of human rights, thus introducing a distinction between terrorist offences according to their consequences, may be regarded as compatible with Directive 2017/541. The effect of such legislation is to limit the possibility of criminal prosecutions and penalties to certain categories of acts falling within the scope of that directive, which raises the question of its conformity in the light of the objectives which it pursues.
87.      It is clear from the analysis set out above (58) that Directive 2017/541 does not contain any provision expressly prohibiting the use of mechanisms for extinguishing criminal liability, such as amnesty. Moreover, it cannot logically exclude such measures as a matter of principle, since such a general exclusion would be difficult to reconcile with the structure of primary law, and in particular with the limits inherent in the legal basis constituted by Article 83 TFEU.
88.      It is also important to point out that the LOA does not have the effect of repealing, even in part, the provisions of Directive 2017/541 or those of its national transposition. That directive remains in force in the Spanish legal system without its normative content being altered. This is because the LOA entails a partial and temporary ‘deactivation’ of its effects, in that it extinguishes criminal liability for certain specific acts, which are limited in time and by their nature, without calling into question the general applicability of that directive to other situations.
89.      Therefore, the decisive criterion for assessing the compatibility of the LOA with Directive
2017/541 lies not in the mere fact of granting an amnesty, but in its compliance with the minimum requirements under international law, in particular humanitarian law, as well as the case-law standards established by the European Court of Human Rights, among others.
90.      The examination carried out shows that those standards generally require that any amnesty measure be adopted in a genuine context of political and social reconciliation. That appears to be the case here, as suggested by the very purpose of the LOA, expressed in its official title: ‘Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia’.
91.      In that regard, it seems to me appropriate, at this stage of the analysis, to mention the question of self-amnesty, which was raised at the hearing, although it is not, as such, the subject of any specific issue in the request for a preliminary ruling. That question should, however, in my view, be briefly addressed, in so far as it touches on the legitimate limits that may be encountered by a mechanism for extinguishing criminal liability under the rule of law. As the Venice Commission recalled in its opinion on the Spanish draft law on amnesty for Catalonia, self-amnesty refers to the situation in which perpetrators or responsible institutions grant themselves or their members immunity from prosecution, often on the eve of a political transition. (59) Those forms of amnesty are often vitiated by arbitrariness, in that they allow those who control the legislature or the executive to avoid any form of accountability, without effective judicial review or genuine democratic participation. (60)
92.      In my view, there is no basis for describing the LOA as self-amnesty in the present case, for a number of convergent reasons. In the first place, the law at issue is the result of due parliamentary process, conducted within a pluralist democratic system. It is not the result of a unilateral act imposed by an authoritarian power, but of a democratic debate and vote within the Cortes Generales (Spanish Parliament).
93.      In the second place, its application does not escape judicial review. (61) As is apparent from the request for a preliminary ruling, it is for the referring court to examine in the main proceedings whether the conditions laid down by law in order to benefit from the amnesty are satisfied, and in particular whether or not the acts at issue fall within the exclusion provided for in Article 2(c) of the LOA.
94.      In the third place, the very purpose of the LOA belies any assimilation to a self-amnesty. The LOA does not cover all State officials or holders of power without distinction, but applies to a specific set of acts, which are time-bound and linked to a period of political tension, without regard to the public or private status of the persons concerned. In short, it operates in rem. It is therefore not intended to protect a political regime or its representatives from possible prosecution, but to respond to an exceptional situation with a stated objective of institutional normalisation and reconciliation.
95.      Lastly, the case file does not show that the persons benefiting from the amnesty are themselves members or representatives of the government or legislative authority behind the adoption of the LOA, and therefore there is no direct link between the exercise of political power and the benefit of the measure. Accordingly, it cannot be argued, in my view, that the LOA is a self-amnesty.
96.      Moreover, the settled case-law of the European Court of Human Rights establishes that amnesty cannot, in any circumstances, cover serious violations of human rights, most notably violations of the rights to life and to physical integrity protected by Articles 2 and 3 ECHR. From that point of view, Article 2(c) of the LOA explicitly excludes acts which have intentionally caused such breaches, including those covered by international humanitarian law. (62) That requirement therefore appears to be satisfied in the present case.
97.      It follows that, since the LOA provides that amnesty is excluded for those intentional and serious offences, without formally including all the offences covered by Directive 2017/541, such an approach cannot, in principle, be considered contrary to the objectives of that directive.
98.      Accordingly, in the light of all the foregoing considerations, I propose that the Court should answer the first, second, third, fifth and sixth questions to the effect that Directive 2017/541 does not preclude national legislation, such as the LOA, which, when the subjective, objective and temporal elements referred to in that law are present, amnesties acts which, by reason of their purpose, are capable of being classified as terrorist offences, within the meaning of Article 3(1)(d) and (f) of that directive, or as offences relating to a terrorist group, within the meaning of Article 4 of that directive, provided that they have not intentionally caused serious breaches of human rights, in particular those covered by Articles 2 and 3 ECHR and by international humanitarian law, inasmuch as
the effectiveness of Directive 2017/541 is not compromised.
The fourth question
99.      The fourth question referred by the national court consists of two parts. First, it is necessary to determine whether the principle of legal certainty precludes legislation such as the LOA, which makes the exemption from criminal liability, for acts falling within the scope of Directive 2017/541, subject to the absence of intent to commit serious breaches of human rights, in particular those guaranteed by Articles 2 and 3 ECHR and by international humanitarian law. The referring court points out that the LOA does not specify either the conduct capable of constituting such infringements or the level of seriousness required to exclude application of the amnesty. Secondly, in the alternative, it questions the compatibility of the principles of legal certainty and legitimate expectations with a provision such as Article 1 of the LOA, the criteria for the application of which appear to be objectively vague and subjectively uncertain.
100. Those two aspects must be examined in turn.
First part: the exclusion clause based on serious breaches of human rights
101. It should be noted at the outset that it is not apparent from the bill of indictment nor the indictment that the alleged acts, although classified as terrorist offences, intentionally
caused serious breaches of human rights. Therefore, the condition laid down in Article 2(c) of the LOA, which makes exclusion from the benefit of amnesty subject to the intentional commission of such breaches, cannot be satisfied in the present case, with the result that that exclusion clause would not apply. As the Spanish Government has submitted, that fact raises the question of the hypothetical nature of the question referred for a preliminary ruling and, therefore, its admissibility.
102. In my view, such an objection cannot be upheld. The question raised by the referring court can be understood as seeking to ascertain whether the reference in the LOA to the concept of ‘serious breaches of human rights’, in particular those guaranteed by Articles 2 and 3 ECHR, satisfies the requirements of clarity and precision imposed by EU law. What that court is seeking, in essence, is to establish is whether the wording of that exclusion clause makes it possible to draw a sufficiently clear line between, on the one hand, the conduct capable of benefiting from an amnesty and, on the other, the conduct which, because of its seriousness, must remain subject to the prosecution system established by Directive 2017/541. The uncertainties surrounding the exact scope of that clause are sufficient to justify a substantive examination.
103. Generally speaking, the principle of legal certainty requires that rules of law be drawn up in a clear, precise and unequivocal manner, so that everyone can know, in a foreseeable manner, the extent of their rights and obligations. That principle is intended to ensure legislative stability and consistency in the application of the law. In that sense, it constitutes the basis of the principle of legitimate expectations, which is intended to protect the stability of legal positions established on the basis of the rules in force. (63)
104. The Court has acknowledged that the principles of legal certainty and the protection of legitimate expectations require, first, that rules of law must be clear and precise and, second, that their application must be foreseeable by those subject to them. (64) The principle of legal certainty requires, particularly in the case of rules capable of having adverse consequences for individuals, that the applicable provisions be sufficiently accessible and comprehensible to enable any person concerned to foresee, to a reasonable extent, their legal effects. As a fundamental principle of EU law, (65) legal certainty takes on particular significance in criminal matters, where it contributes to the protection of fundamental rights and the effectiveness of the rule of law, established by Article 2 TEU as a founding value of the European Union and a requirement common to all the Member States. (66)
105. In order to answer the first part of this question, it is necessary to determine for whose benefit the guarantee of legal certainty could be invoked. If that guarantee were to be relied on for the benefit of the accused persons, the argument would appear, at this stage, to be ineffective. The request for a preliminary ruling expressly states that the acts at issue in the main proceedings do not fall within the scope of the exclusions provided for by the LOA, that is to say, the cases in which the LOA provides that the acts cannot be amnestied. It should also be noted that the referring court has heard the parties, in accordance with Spanish procedural law, in the context of a specific reference for a preliminary ruling concerning the request for the LOA to be applied to the acts at issue in the present proceedings. Among the positions expressed, one of the accused (QCR) argued, inter alia, that the LOA did not suffer from any lack of clarity or precision. (67)
106. If, however, the referring court itself raises a difficulty of interpretation because of the imprecise nature of the clause in Article 2(c) of the LOA, (68) it should be noted that that provision is not limited to a general reference to ‘serious breaches of human rights’. It refers explicitly to Articles 2 and 3 ECHR, namely the right to life, on the one hand, and the prohibition of torture and inhuman or degrading treatment, on the other. The normative content of those provisions has been clarified substantially and in a consistent manner by the case-law of the European Court of Human Rights. That reference to legislation thus makes it possible, in my view, to circumscribe the scope of the exclusion clause in a sufficiently precise manner. In other words, Article 2(c) of the LOA implicitly but clearly defines the meaning of ‘serious breaches of human rights’ by direct reference to the case-law on the abovementioned articles of the ECHR.
107. In particular, in order to determine whether particular treatment constitutes torture within the meaning of Article 3 ECHR, it should be recalled that the European Court of Human Rights
draws a clear distinction between torture, inhuman treatment and degrading treatment. That distinction is intended to emphasise the particular gravity of acts deliberately inflicting intense and cruel suffering. It is also enshrined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (69) which defines torture as the intentional infliction of severe pain or suffering, in particular for the purpose of obtaining information, punishment or intimidation. (70)
108. What mainly distinguishes torture from inhuman or degrading treatment is the degree of intensity of the suffering inflicted. Treatment is classified as inhuman if it causes severe physical or mental pain, often because of its duration or the fact that it is premeditated. (71) It is considered degrading if it is intended to humiliate the person or has that effect, by violating his or her dignity or arousing a feeling of fear, anguish or inferiority capable of breaking his or her moral resistance. (72)
109. For treatment to be considered degrading, it is not necessary for it to be perceived as such by third parties. It is sufficient for the victim to feel humiliated in his or her own eyes. Nor is the intention to humiliate a necessary condition for a finding of a violation. Therefore, even if there was no intention to debase the victim, Article 3 ECHR may be violated if the effects of the treatment actually debase that victim. (73)
110. Article 2 ECHR imposes a dual obligation: first, the prohibition on intentionally depriving a person of life, except in exhaustively listed cases; second, the positive obligation to protect that right by law. (74)
111. It follows that the scope of the exclusion clause provided for in Article 2(c) of the LOA is sufficiently defined, since it refers to Articles 2 and 3 ECHR, the content of which has been clarified in a consistent and detailed manner by the case-law of the European Court of Human Rights. In the absence of any ambiguity in the legislation, it seems to me that there has been no breach of the principle of legal certainty.
Second part: the scope of Article 1 of the LOA and the principles of legal certainty and legitimate expectations
112. As regards the second part of the fourth question, raised in the alternative by the referring court, it should be borne in mind, as has already been observed in relation to the first part, that the referring court clearly states, in its request for a preliminary ruling, that, having regard to the material and temporal scope of the LOA, the facts at issue fall within the scope of Article 1 thereof. To that extent, and as with the first part, the question could appear to be hypothetical in the light of the possible outcome of the dispute in the main proceedings, and could therefore raise doubts as to its admissibility.
113. The fact remains that, as the Commission pointed out in particular at the hearing, if the scope of Article 1 of the LOA were to be held to be too vague or indefinite, in particular as regards the objective and subjective classification of the conduct concerned, this could affect the effectiveness of Directive 2017/541. Accordingly, the referring court could be justified in questioning the compatibility of that provision with EU law. If the question is to be interpreted in that sense, it must be examined as to its substance.
114. In the first place, like the first part of the fourth question, it is necessary to determine for whose benefit the principles of legal certainty and legitimate expectations are invoked here. If it is the accused, there is nothing in the request for a preliminary ruling to suggest that any lack of precision in the scope of the LOA would, in the present case, have had a material adverse effect on their legal situation. On the contrary, as has already been pointed out, there is nothing to indicate that, at the current procedural stage of the case in the main proceedings, there was any doubt as to the applicability of the LOA to the acts of which the defendants are accused. It is therefore not clear how legal certainty could usefully be relied on in their favour.
115. The same applies to the principle of legitimate expectations, which presupposes the existence of precise and legitimate expectations, based on clear assurances from the competent authorities. However, the request for a preliminary ruling does not contain any information making it possible to identify which specific expectations could have arisen, or in respect of which persons, as regards the possibility, or, conversely, the impossibility, of adopting amnesty legislation exempting from criminal liability certain acts falling within the scope of Directive 2017/541, but which, in a specific material, personal and temporal context, would not constitute serious breaches of human rights.
116. In the second place, although the principle of legal certainty is invoked by the referring court itself, on the ground that it considers the scope of Article 1 of the LOA to be uncertain, it should be recalled, as has already been stated in the examination of the compatibility of that law with Directive 2017/541, that the relevant criterion lies neither in the material or temporal scope of the amnesty, nor in the degree of precision of its parameters. What matters under EU law is compliance with the substantive limits laid down by international humanitarian law and the obligations arising from Articles 2 and 3 ECHR, as interpreted by the European Court of Human Rights. In other words, it is not, in my view, the abstract scope or general wording of Article 1 of the LOA that is decisive, but whether that provision is capable of covering, even indirectly, acts constituting serious breaches of human rights. (75)
117. That approach is all the more justified since an assessment by the Court of the temporal and material scope of an amnesty measure would, in reality, amount to giving a judgment on the actual substance of that measure. As has been demonstrated, such an assessment falls within the sphere reserved for the Member States, in so far as the establishment, scope and detailed rules for the application of an amnesty fall outside the scope of harmonisation by EU law and remain, in principle, a matter of exclusive national competence.
118. It is true, as the Commission in particular submitted at the hearing, that it could be argued that, in the present case, the particularly broad scope of the amnesty is liable to undermine the effectiveness of Directive 2017/541, in that it would prevent any prosecution of the acts alleged against the defendants in the main proceedings. It should be borne in mind, however, that amnesty is an institution whose detailed rules of application vary according to the legal and political context. Amnesties may be granted at various stages of criminal proceedings, before, during (76) or after the proceedings and may concern either an isolated act or a series of acts committed over a given period of time. (77) In short, it is a measure that can be adapted to a variety of political and judicial situations.
119. Accordingly, it is not for the Court, in my view, to assess the political appropriateness or relevance of the material or temporal scope of the amnesty in the main proceedings. Its review should be confined to verifying compliance with the external limits imposed by EU law and the international instruments to which the Member States are bound. In particular, it is necessary to ensure that that measure does not cover conduct that constitutes serious breaches of fundamental rights, most notably the right to life and the prohibition of torture and inhuman or degrading treatment, as guaranteed by Articles 2 and 3 ECHR.
120. However, as has been established above, (78) that is not the case here. The issue here is not legislation which entirely neutralises the application of certain provisions of Directive 2017/541, but a circumscribed amnesty measure based on specific political considerations. Since that directive does not in itself prohibit recourse to amnesties, such a measure should, in principle, be regarded as permissible, irrespective of the extent of its material or temporal scope, provided that it complies with the substantive conditions set out above.
121. That conclusion is supported by the fact that, although the amnesty in the main proceedings clearly has a broad material and temporal scope, it forms part of an internal logic which gives it a coherence of its own. As the Spanish Government argued at the hearing, the LOA covers a specific period and precisely identified facts, which are all linked to the independence process in Catalonia. The measure therefore has a direct link with the political purpose underlying its adoption, namely institutional normalisation and social reconciliation in the context of the Catalan crisis. That purpose is expressly stated both in the title of and the preamble to the LOA.
122. In the light of those considerations, with regard to the first part of the fourth question, I would suggest that the Court answer to the effect that the principle of legal certainty, read in conjunction with Directive 2017/541, does not preclude national legislation, such as the LOA, which makes the exemption from criminal liability of the person accused of conduct covered by that directive subject to the condition that he or she must not have intentionally caused serious breaches of human rights, in particular the rights governed by Articles 2 and 3 ECHR and international humanitarian law.
123. As to the second part of that question, I propose that the answer should be that the principles of legal certainty and legitimate expectations do not preclude legislation such as that laid down in Articles 1 and 2 of the LOA for the purpose of determining its scope.
The eighth question
124. The referring court asks, in essence, whether Directive 2017/541, read in the light of Articles 20 and 21 of the Charter, precludes national legislation, such as the LOA, which exempts from criminal liability persons accused of offences that fall within the scope of that directive, on the ground that, according to the referring court, those offences were committed with a view to pursuing an ideological aim.
125. In my view, that argument is based on an erroneous premiss in that it fails to take account of the specific nature of the amnesty at issue. The referring court appears to equate the present situation with that in which the legislature adopts a general rule intended to extinguish criminal liability for certain offences solely on account of their ideological connotations. In such a scenario, it could be argued that a difference in treatment would exist between, on the one hand, persons accused of offences motivated by a given ideology, who benefit from amnesty and, on the other, persons who have committed similar offences in another ideological context not covered by the law. Such an approach could indeed raise doubts as to its compatibility with Articles 20 and 21 of the Charter.
126. In the present case, however, that is not the case. Criminal liability is extinguished here by virtue of an amnesty law, that is to say an act of exceptional scope, the express purpose of which is to promote political and social reconciliation. That purpose in itself justifies the different treatment of certain facts, since such treatment is based on objective and rational criteria. In the present case, the LOA clearly defines its scope by reference to the clearly identified context of the Catalan independence process. The measure is therefore not based on an abstract or subjective assessment of the ideological motivation for the offences, but on a precise political and temporal foundation, which is directly linked to the objective pursued.
127. To take the opposite view, as advocated inter alia by the Commission at the hearing, would amount to depriving any amnesty measure of its legitimacy, by denying its specific function, namely to make it possible, in exceptional circumstances, to overcome past divisions in order to serve a greater interest of bringing peace.
128. However, that does not mean that all amnesties are legitimate. As I pointed out above, (79) such measures must comply with certain requirements. They may not cover serious breaches of human rights and must be based on a legitimate aim and objective criteria, in line with the aim pursued. In my view, the LOA meets those requirements by being based on a specific political context and an explicit objective of reconciliation.
129. I therefore suggest that the Court should reply to the effect that Articles 20 and 21 of the Charter do not preclude a national amnesty rule, such as Article 1 of the LOA, which does not apply to acts other than those defined in that article, even if they occurred in the same geographical area and during the same period.
The seventh question
130. The referring court then asks the Court whether the LOA is compatible with the principle of the primacy of EU law and with the duty of sincere cooperation enshrined in Article 4(3) TEU. It wishes to know, in essence, whether those principles preclude national legislation which grants an amnesty to accused persons for acts falling within the material scope of Directive 2017/541.
131. The Court has already held, in its landmark judgment of 15 July 1964 in Costa, (80) that EU law, stemming from an independent source, cannot be eliminated by a national rule, irrespective of its nature or date, without calling into question the unity and effectiveness of the EU legal system. It stated that the binding force of EU law cannot vary from one Member State to another without jeopardising the attainment of the objectives of the Treaty or creating discrimination between individuals.
132. The Court has emphasised that, since it has exclusive jurisdiction to give the definitive interpretation of EU law, it is for the Court, in the exercise of that jurisdiction, to clarify the scope of the principle of the primacy of EU law in the light of the relevant provisions of that law, with the result that that scope cannot turn on the interpretation of provisions of national law or on the interpretation of provisions of EU law by a national court which is at odds with that of the Court. (81)
133. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States. (82)
134. As regards the principle of sincere cooperation, I would point out that that principle, enshrined in Article 4(3) TEU, requires the Member States and the EU institutions to respect each other and to assist each other in carrying out the tasks which flow from the Treaties. According to settled case-law, that principle requires Member States to take all the measures necessary to guarantee the application and effectiveness of EU law. (83)
135. In the present case, it is not apparent from the analysis that the adoption of the LOA would undermine the principle of primacy. As explained above, (84) Directive 2017/541 does not contain any provision expressly excluding recourse to amnesties. Above all, the effectiveness of the directive is preserved as long as the amnesty law complies with the limits laid down by international humanitarian law, in particular the requirements of the protection of fundamental rights, and does not lead to impunity for the most serious violations.
136. As regards the duty of sincere cooperation, it cannot be relied upon independently to prohibit an amnesty measure, since no positive, clear and precise obligation arises from Directive 2017/541 which prohibits Member States from having recourse to such a measure. In the absence of a peremptory norm of EU law prohibiting amnesties, the Member States remain competent to adopt such laws, provided that they do not undermine the objective of that directive or lead to impunity for serious breaches of human rights.
137. It follows that the principles of primacy and sincere cooperation cannot be regarded as precluding, in the present case, the adoption of the LOA.
138. Accordingly, I propose that the Court should reply that Directive 2017/541, read in conjunction with the principle of the primacy of EU law and the principle of sincere cooperation referred to in Article 4(3) TEU, does not preclude national legislation, such as the LOA, which, in the exercise of the exclusive competence of the Member States, exempts from criminal liability, through an amnesty, where certain objective, subjective and temporal circumstances defined in that law are met, persons accused of conduct falling within the scope of that directive, in so far as that does not compromise the objective or effectiveness of that directive.
The ninth question
139. By its ninth and final question, the referring court asks the Court about the interpretation of Article 4(2) TEU and Article 20(2)(a) and Article 21(1) TFEU. It wishes to know whether those provisions preclude legislation such as the LOA, in so far as it exempts from criminal liability persons accused of offences classified as terrorist-related on the ground that the acts were committed with the aim of achieving the secession of
part of the national territory of the Member State concerned. According to the referring court, the LOA would give rise to a risk of the repetition or spreading of such acts, which would undermine the territorial integrity of the Member States and the freedoms of movement and residence of Union citizens.
140. It is appropriate to recall, as a preliminary point, the purpose of the preliminary ruling procedure as set out in Article 267 TFEU. According to settled case-law, ‘the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them’. The Court adds that the ‘justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute’. (85)
141. Moreover, ‘as is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be “necessary” to enable the referring court to “give judgment” in the case before it’. (86) It follows that ‘a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling’. (87)
142. In the present case, it is clear that the ninth question has no connection with the resolution of the main proceedings, which concern criminal proceedings brought against persons accused of acts that may fall within the combined scope of Directive 2017/541 and the LOA. The question whether an amnesty measure could, in general, undermine the territorial integrity of a Member State or the right of free movement of Union citizens has, in that context, no direct bearing on the subject matter of the dispute. It is a question of a general or even political nature which has no operational bearing on the specific context of the case in the main proceedings.
143. Therefore, the wording of that ninth question seems intrinsically linked to a hypothetical or abstract dispute, distinct from the litigation actually pending before the national court. The latter is relegated to a secondary role in the logic underlying that question, which seeks to make the preliminary ruling procedure the vehicle for a debate that is unconnected with the factual circumstances of the dispute in the main proceedings.
144. Consequently, and in so far as the ninth question is not relevant to the resolution of the dispute in the main proceedings, I am of the view that it must be declared inadmissible.
Conclusion
145. In the light of all of the foregoing, I propose that the Court of Justice should answer the questions, as reformulated, referred for a preliminary ruling by the Audiencia Nacional (National High Court, Spain), as follows:
(1)      Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA
must be interpreted as
not precluding national legislation, such as Ley Orgánica 1/2024 de amnistía para la normalización institucional, política y social en Cataluña (Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia) of 10 June 2024, which, when the subjective, objective and temporal elements referred to in that law are present, amnesties acts which, by reason of their purpose, are capable of being classified as terrorist offences, within the meaning of Article 3(1)(d) and (f) of that directive, or as offences relating to a terrorist group, within the meaning of Article 4 of that directive, provided that they have not intentionally caused serious breaches of human rights, in particular those covered by Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and by international humanitarian law, inasmuch as the effectiveness of Directive 2017/541 is not compromised.
(2)      The principle of legal certainty, read in conjunction with Directive 2017/541,
must be interpreted as
not precluding national legislation, such as Organic Law No 1/2024, which makes the exemption from criminal liability of the person accused of conduct covered by that directive subject to the condition that he or she must not have intentionally caused serious breaches of human rights, in particular the rights governed by Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and international humanitarian law.
(3)      The principles of legal certainty and legitimate expectations, read in conjunction with Directive 2017/541,
must be interpreted as
not precluding legislation such as that laid down in Articles 1 and 2 of Organic Law No 1/2024 for the purpose of determining its scope.
(4)      Directive 2017/541, read in conjunction with the principle of the primacy of EU law and the principle of sincere cooperation referred to in Article 4(3) TEU,
must be interpreted as
not precluding national legislation, such as Organic Law No 1/2024, which, in the exercise of the exclusive competence of the Member States, exempts from criminal liability, through the amnesty, where certain objective, subjective and temporal circumstances defined in that law are met, persons accused of conduct falling within the scope of that directive, in so far as that does not compromise the objective or effectiveness of that directive.
(5)      Articles 20 and 21 of the Charter of Fundamental Rights of the European Union
must be interpreted as
not precluding a national amnesty rule, such as Article 1 of Organic Law No 1/2024, which does not apply to acts other than those defined in that article, even if they occurred in the same geographical area and during the same period.
1      Original language: French.
2      Wuernet, J.-L., Aristote: Œuvres complètes, Arvensa Éditions, 2017; see, in particular, Chapter XXXIX. Agreement between the supporters of the Thirty and the democrats, in the Athenian Constitution, translated into English by Kenyon, F.
3      The word ‘amnesty’ is derived from the ancient Greek ἀμνηστία (amnēstía), which implies the notion of something being forgotten (see Donnedieu de Vabres, H., Traité de droit criminel et de législation pénale comparée, 3rd ed., Librairie du Recueil Sirey, Paris, 1947,
pp. 550 to 560, No 977 to 992, in particular p. 550, No 977). This term is formed from the prefix ἀ- (without) and μνήμη (mnêmê), which means ‘memory’ or ‘recollection’. Literally, ἀμνηστία (amnēstía)
therefore means ‘lack of memory’, or more specifically, ‘deliberately forgetting’ (see, in that regard, Merle, R. and Vitu, A., Traité de droit criminel, Tome II, Procédure pénale, 5th ed., Éditions Cujas, Paris, 2001, p. 1107, No 942). The authors note that amnesty is the oldest form of pardon in criminal matters: ‘By a general and impersonal provision, the authorities decide to consign to oblivion certain criminal acts currently being prosecuted or to be prosecuted, or certain convictions already handed down. The facts are not deleted as such, but their criminal consequences disappear.’ They define amnesty ‘as a criminal institution based on a fiction, the purpose of which is to remove for the future any criminal character from certain criminally reprehensible acts, by prohibiting any prosecution in respect of them or by erasing the convictions which arose because of them’. For his part, Jean Pradel states that amnesty appears to be ‘forgetfulness desired by the legislature which, having the power to create offences, also has the power to erase them’ (Pradel, J., Droit pénal comparé, 3rd ed., Dalloz, Paris, 2008, p. 586, No 559). In the same vein and in the context of the amnesty laws in the Federal Republic of Germany after the Second World War, see Perels, J., ‘Amnestien für NS-Täter in der Bundesrepublik’, Kritische Justiz, Vol. 28, No 3, 1995, pp. 382 to 389, and Müller, I., Furchtbare Juristen. Die unbewältigte Vergangenheit der deutschen Justiz, TIAMAT, Berlin, 2014, pp. 306 to 315. With regard to amnesty, see also Marxen, K., Rechtliche Grenzen der Amnestie, Forum Rechtswissenschaft. Beiträge zu neueren Entwicklungen in der Rechtswissenschaft 13, C.F. Müller, Karlsruhe, 1984.
4      In 2001, Roger Merle and André Vitu emphasised the proliferation of amnesties in the modern era, despite the exceptional nature of its raison d’être: ‘… the granting [of amnesty] has become so commonplace that, since the First World War, an amnesty document has been promulgated on average every two years: there were twelve between 1919 and 1939 and, since the Liberation, more than thirty’ (Merle, R. and Vitu, A., op. cit., p. 1108, No 943). Moreover, Jean Padel observes that, in France, amnesty is often implemented by the adoption, on average, of a law every five years, on the occasion of the appointment of the President of the Republic, ‘plus sometimes one or two “small” laws during a five-year term …’ (Pradel, J., footnote 4, op. cit., p. 586).
5      Henri Donnedieu de Vabres observes that ‘the purpose of amnesty is, after a political upheaval, to pacify people’s minds by relegating to the past offences which society wishes to forget because they are a reminder of bad times’ (Donnedieu de Vabres, H., No 978, op. cit., p. 550).
6      That is why the granting of amnesty is often surrounded by scepticism and a suspicion of arbitrariness. In that regard, Roger Merle and André Vitu acutely observe: ‘The political and social role of de-escalation and clemency played by amnesty after troubled times has often been emphasised, at a time when it is important to restore calm in people’s minds; at certain times, the authorities do more for peace and justice by forgiving than by demanding the continuation of painstaking and nit-picking repression. However, it must not be overlooked that this is a blind form of indulgence, which is indiscriminately enjoyed by all who satisfy the conditions laid down in amnesty law, irrespective of their merits or unworthiness’ (Merle, R. and Vitu, A., No 942, op. cit., p. 1108). For his part, Klaus Marxen observes in his work on amnesty that, in periods of political unrest, political forces resort to amnesty as a means of expanding and consolidating power (Marxen, K., op. cit., p. 3).
7      It should be noted that the issue of amnesty is also likely to open the debate on a possible tension between the principle of equality before the law and the need for justice (see my Opinion delivered today in the related Case C‑523/24, Sociedad Civil Catalana, in particular point 2).
8      On 10 June 1944, a unit of the SS Das Reich division massacred 643 inhabitants of that village in Haute-Vienne, reducing women, men and children to ashes. At the trial in 1953 before the military tribunal in Bordeaux (France), 14 of the accused were Alsatians who had been forced to join the Waffen-SS (‘Malgré-nous’ (against our will)), alongside 7 German nationals. The conviction of those Alsatians caused an uproar in Alsace, where many regarded them primarily as victims of the occupation who were forced to serve in German uniform. Following the verdict (13 February 1953), the legislature adopted loi no 53-112 du 20 février 1953 portant amnistie en faveur des Français incorporés de force dans les formations militaires ennemies (Law No 53-112 of 20 February 1953 granting amnesty to French nationals forcibly incorporated into enemy military formations) (JORF of 21 February 1953, p. 1747), which exonerated the French nationals from any liability, invoking the need to preserve public peace and national unity. The President of the National Assembly stated in that regard: ‘The homeland is a mother. She cannot allow her children to be torn from her bosom’ (see, on this subject, Boufigi, M., Hébras, P. and Hébras, A., Le dernier témoin d’Oradour-sur-Glane, Harper Collins, Paris, 2024, in particular pp. 118 to 121). That measure, perceived elsewhere as a denial of justice for extremely serious war crimes, demonstrates the difficulty inherent in any amnesty, namely reconciling the punishment of the most serious violations with the political considerations of pacification and social cohesion. The text of Law No 53-112 of 20 February 1953 granting amnesty to French nationals forcibly incorporated into enemy military formations is reproduced in the book by Verhaegen, J., La protection pénale contre les excès de pouvoir et la résistance légitime à l’autorité, Bruylant, Brussels, 1969, p. 429. This is a – rare – application of an amnesty law which operated in personam.
9      Thus, in the Grand Duchy of Luxembourg, an author had already raised doubts in 1949 as to whether amnesty, a pardon or an amalgamation of those two measures was appropriate, for collaborators, at least for certain offences (see Metzler, L., Mélanges de Droit Luxembourgeois, Bruylant/Beffort, Brussels/Luxembourg, 1949, pp. 377 to 380). Three amnesty laws were adopted in the 1950s. First of all, amnesty was granted to those who, until 1 January 1947, had committed crimes ‘motivated by patriotic feelings’ against collaborators (loi du 24 mars 1950 concernant la répression de certains faits punissables commis sous l’impulsion de sentiments patriotiques pendant l’occupation ou à l’époque de la libération) (Law of 24 March 1950 concerning the prosecution of certain punishable acts committed under the impulse of patriotic feelings during the occupation or at the time of the liberation) (Mémorial A 1950, p. 533). The explanatory memorandum to that law is reproduced, together with a commentary, in Spielmann, A., Des traîtres ?, RTL Édition, Luxembourg, 1984, pp. 80 to 82. Secondly, the loi du 11 avril 1950 relative à l’amnistie en matière de droit commun et portant interprétation ou modification de certaines dispositions de l’arrêté grand-ducal du 21 avril 1948 déterminant l’effet des mesures prises par l’ennemi, de la loi du 5 décembre 1911 portant réhabilitation de droit des condamnés à des peines correctionnelles ou à des peines de police et de la loi électorale du 31 juillet 1924 (Law of 11 April 1950 on amnesty under the ordinary law and interpreting or amending certain provisions of the Grand-Ducal Decree of 21 April 1948 determining the effect of measures taken by the enemy, the Law of 5 December 1911 on the rehabilitation of offenders
who received
mid-level or minor sentences and the electoral law of 31 July 1924) (Mémorial A 1950, p. 633) covered dozens of types of offences committed in the post-war period, including threats and injuries which rendered the victim incapable of working. Lastly, a law adopted 10 years after the end of the Second World War, the loi du 12 janvier 1955 portant amnistie de certains faits punissables et commutation de certaines peines en matière d’attentat contre la sûreté extérieure de l’État ou de concours à des mesures de dépossession prises par l’ennemi et instituant des mesures de clémence en matière d’épuration administrative (Law of 12 January 1955 granting amnesty for certain punishable acts and the commutation of certain sentences in respect of attacks on the external security of the State or participation in measures of dispossession taken by the enemy and introducing leniency measures in respect of administrative purges) (Mémorial A 1955, p. 161) benefited collaborators in that it pardoned those who had committed an offence against the external security of the State before 1 June 1945 (see Wingerter, E., ‘La justice luxembourgeoise pendant l’occupation nazie et dans l’immédiat après-guerre (1940-1950)’, in Histoire de la Justice au Luxembourg (1795 à nos jours). Institutions – Organisation – Acteurs, De Gruyter, Berlin/Boston, 2022, pp. 179 to 242, in particular pp. 213 to 214).
10      Jacques Verhaegen cites those problematic amnesty texts, such as décret no 62-328 du 22 mars 1962 portant amnistie de faits commis dans le cadre des opérations de maintien de l’ordre dirigées contre l’insurrection algérienne (Decree No 62-328 of 22 March 1962 granting amnesty for offences committed as part of law enforcement operations against the Algerian insurrection) (JORF of 23 March 1962, p. 3144), and ordonnance no 62-428 du 14 avril 1962 rendant applicable sur l’ensemble du territoire de la République le décret no 62-328 du 22 mars 1962 portant amnistie de faits commis dans le cadre des opérations de maintien de l’ordre dirigées contre l’insurrection algérienne (Order No 62-428 of 14 April 1962 making Decree No 62-328 of 22 March 1962, granting amnesty for offences committed as part of law enforcement operations against the Algerian insurrection, applicable throughout the territory of the Republic) (JORF of 15 April 1962, p. 3892), extended by loi no 66-396 du 17 juin 1966 portant amnistie d’infractions contre la sûreté de l’État ou commises en relation avec les évènements d’Algérie » (Law No 66-396 of 17 June 1966 on amnesty for offences against State security or committed in relation to events in Algeria)
(JORF of 18 June 1966, p. 4915) to offences committed ‘as part of administrative or judicial police operations’ (Verhaegen, J., footnote 159, op. cit., p. 444).
11      See, inter alia, point 77 et seq. of this Opinion.
12      BOE No 141 of 11 June 2024, p. 67764.
13      BOE No 311 of 29 December 1978, p. 29313.
14      Judgment 137/2025 of the Tribunal Constitucional (Constitutional Court), Pleno  (BOE No 183 of 31 July 2025, p. 103781 (ES:TC:2025:137)).
15      As is apparent from the request for a preliminary ruling, according to the accused, they are preparatory acts.
By contrast, according to the Public Prosecutor’s Office and the actio popularis, they are attempted offences.
16      Directive of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ 2017 L 88, p. 6).
17      Signed in Rome on 4 November 1950 (ECHR).
18      Adopted by the General Assembly of the United Nations on 16 December 1966 and entered into force on 23 March 1976.
19      BOE No 45 of 21 February 2019, p. 16698.
20      BOE No 281 of 24 November 1995, p. 33987.
21      ‘The Venice Commission’.
22      Venice Commission, Opinion No 710/2012 of 11 March 2013 on the Provisions relating to Political Prisoners in the Amnesty Law of Georgia (CDL-AD (2013)009).
23      (ECtHR).
24      BOE No 260 of 17 September 1882, p. 803.
25      Those 12 people are EGB, EGC, SPG, QCR, GTA, ACB, JRS, RJDL, FJG, XBLL, DBA and CBE.
26      Acts punishable under Article 571 and Article 572(2) of the Criminal Code.
27      Acts punishable under Article 574(1), Article 573 bis(1)(3) and Article 346(1) of the Criminal Code and the combined provisions of Articles 16, 62 and Article 573(1)(1), (2) and (4) of that code.
28      In particular, these are the Associació Catalana de Víctimes d’Organitzacions Terroristes (ACVOT) (Catalan Association of Victims of Terrorist Organisations); the Asociación de Víctimas del Terrorismo (AVT) (Association of Victims of Terrorism); the Asociación Dignidad y Justicia (Association of Dignity and Justice); the Asociación Española de la Guardia Civil (AEGC) (Spanish Association of the Civil Guard), and the Asociación Unificada de la Guardia Civil (AUGC) (Unified Association of the Civil Guard).
29      It should be noted in that regard that, as is apparent from the request for a preliminary ruling, the referring court heard the parties in the context of preliminary investigation proceedings, provided for under Spanish law, concerning the request for the application of the amnesty to the acts which are the subject of the present proceedings. Among the positions expressed, one of the accused (QCR) argued that there is no lack of clarity in the LOA. Other defendants (DBA, CBE and XBLL) argued that the facts referred to in the indictments do not make it possible to classify the acts at issue as terrorist acts, but rather as punishable preparatory acts. The actio popularis, for its part, considered that the LOA infringed the principles of effective judicial protection, the separation of powers and the primacy and effectiveness of EU law.
30      In that regard, it is appropriate to recall the judgment of 17 July 2008, Commission v Italy (C‑132/06, EU:C:2008:412), delivered in a case relating not to a criminal amnesty, such as in the present case, but a tax amnesty introduced by the Italian Republic. In that case, the Court held that, in so far as the relevant provisions of the national legislation provided for a general and indiscriminate waiver of verification of taxable transactions effected in the tax years concerned, they rendered Articles 2 and 22 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) meaningless, thus undermining the effectiveness of the latter.
31      Judgment of 16 December 2021 (C‑203/20, ‘the judgment in AB’, EU:C:2021:1016, paragraph 40).
32      The Court of Justice also acknowledged, in response to the third question put forward by the referring court in that case, that ‘national legislation laying down a legislative procedure for the revocation of an amnesty and a judicial procedure the purpose of which is to review the compliance of that revocation with the constitution is not an implementation of EU law, since such procedures do not come within the scope of EU law’ (judgment in AB (paragraph 74)). However, in the same judgment, the Court of Justice was also asked, in the first question referred by the national court, to rule on the compatibility with the principle ne bis in idem of the issue of a European arrest warrant against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty and setting aside that judicial decision. In the light of its own jurisdiction, the Court of Justice held that it is true that the main proceedings concerned offences which were not harmonised under EU law and that that law does not govern the adoption and revocation of an amnesty. However, and this is important, it declared that it had jurisdiction on the ground that that question did not concern the interpretation of national legislation concerning those offences or that amnesty, but the interpretation of the principle ne bis in idem in the context of the procedure for issuing a European arrest warrant falling within the material and temporal
scope of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1)  (judgment in AB (paragraphs 41 and 42)).
33      Directive of the European Parliament and of the Council of 13 December 2011 (OJ 2011 L 338, p. 2).
34      See Article 11(1) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16); Article 13(1) of Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ 2006 L 328, p. 59); Article 19(1) of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27), and Article 19(1) of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).
35      Council Framework Decision of 13 June 2002 (OJ 2002 L 164, p. 3). As mentioned in footnote 16 to this Opinion, Directive 2017/541 replaced that framework decision.
36      See recitals 6 and 7 of Directive 2017/541:
‘(6)      Taking account of the evolution of terrorist threats to and legal obligations on the Union and Member States under international law, the definition of terrorist offences, of offences related to a terrorist group and of offences related to terrorist activities should be further approximated in all Member States, so that it covers conduct related to, in particular, foreign terrorist fighters and terrorist financing more comprehensively. These forms of conduct should also be punishable if committed through the internet, including social media.
(7)      Furthermore, the cross-border nature of terrorism requires a strong coordinated response and cooperation within and between the Member States, as well as with and among the competent Union agencies and bodies to counter terrorism, including Eurojust and Europol. …’
37      See recital 35 of Directive 2017/541. Title II deals with freedoms, Title III with equality, Title V with citizens’ rights and Title VI with justice.
38      See footnote 37 above.
39      See, in that regard, Zoumpoulakis, K., ‘Approximation of criminal sanctions in the European Union: A wild goose chase?’, New Journal of European Criminal Law, Vol. 13, No 3, 2022, pp. 333 to 345, in particular pp. 335 and 336. In particular, the author points out that the concept of ‘minimum rules’ does not refer to the actual content of the rule, but rather to the fact that Member States should enjoy a certain degree of manoeuvre to go beyond the minimum required.
40      See Wieczorek, I., The Legitimacy of EU Criminal Law, Hart Publishing, Oxford, 2020, pp. 115 to 116.
41      Judgment of 22 May 2012 (C‑348/09, EU:C:2012:300).
42      See Wieczorek, I., op. cit., p. 116:
‘a values-based criminalisation rationale for harmonisation’.
43      See Siatista, I.M. and Wierda, M., ‘Principle 24. Restrictions and Other Measures Relating to Amnesty’, in The United Nations Principles to Combat Impunity: A Commentary, Oxford University Press, Oxford, 2018, p. 258.
44      On a historical overview of the evolution of international humanitarian law relating to the treatment of amnesty and impunity, see Puéchavy, M., ‘Une amnistie générale ne peut couvrir les crimes de tortures et de traitements inhumains et dégradants (Cour eur. dr. h., Marguš c. Croatie, 13 novembre 2012)’, Revue trimestrielle des droits de l’homme, No 94, 2013, in particular p. 484 et seq.
45      See O’Keefe, R., ‘11. Statutory Limitation and Amnesty’, International Criminal Law,  Oxford International Law Library, Oxford, 2015, pp. 461 to 479, in particular p. 468; see, also, Mettraux, G., International Crimes: Law and Practice: Volume II: Crimes Against Humanity, Oxford University Press,  Oxford, 2020, p. 177.
46      On the evolution of the case-law of the ECtHR in the field of amnesty see, inter alia, Tulkens, F. and Van Drooghenbroeck, S., ‘La clémence pénale et les droits de l’homme. Réflexions en marge de la jurisprudence récente de la Cour européenne des droits de l’homme’, Liber amicorum Michel van de Kerchove, Larcier, Brussels, 2011, pp. 133 to 137; Gallen, J., ‘The European Court of Human Rights, Transitional Justice and Historical Abuse in Consolidated Democracies’, Human Rights Law Review, Vol. 19, No 4, 2019, pp. 675 to 704; Moulier, I., ‘La Cour européenne des droits de l’homme face à la répression pénale nationale des crimes de droit international’, L’homme dans la société internationale. Mélanges en hommage au Professeur Paul Tavernier, 1st ed., Bruylant, Brussels, 2013, pp. 1365 to 1396.
47      ECtHR, 2 September 1991, Dujardin and others v. France (CE:ECHR:1991:0902DEC001673490).
48      ECtHR, 2 November 2004, Abdülsamet Yaman v. Türkiye
(CE:ECHR:2004:1102JUD003244696, § 55).  See also, ECtHR, 10 March 2009, Turan Cakir v. Belgium (CE:ECHR:2009:0310JUD004425606), where that Court found that there had been a violation of Article 3 ECHR by stating that ‘where a State agent is accused of actions contrary to Article 3, the proceedings or conviction cannot be allowed to lapse by becoming time-barred, and the application of measures such as an amnesty or pardon cannot be authorised … In particular the Court considers that national authorities must on no account give the impression that they are ready to let such ill-treatment go unpunished’ (§ 69).
49      ECtHR, 5 June 2007, Yeşil and Sevim v. Türkiye (CE:ECHR:2007:0605JUD003473804, § 38).
50      ECtHR, 13 January 2009, Yeter v. Türkiye (CE:ECHR:2009:0113JUD003375003, § 70).
51      ECtHR, 17 March 2009, Ould Dah v. France
(CE:ECHR:2009:0317DEC001311303).  The ECtHR repeated that wording in the judgment of 24 May 2011, Association ‘21 December 1989’ and Others v. Romania (CE:ECHR:2011:0524JUD003381007, § 144): ‘an amnesty is generally incompatible with the duty incumbent on the States to investigate acts of torture (see Ould Dah v. France (dec.), no. 13113/03, of 17 March 2009) and to combat impunity for international crimes. This is also true in respect of pardon (see Abdülsamet Yaman v. Türkiye, no. 32446/96, § 55, 2 November 2004).’
52      ECtHR, 27 May 2014, Marguš v. Croatia (CE:ECHR:2014:0527JUD000445510; ‘the judgment in Marguš v. Croatia’) (see, on that judgment, inter alia, Krenc, F. and Van Drooghenbroeck, S., ‘Chronique de jurisprudence de la Cour européenne des droits de l’homme – 1er janvier – 30 juin 2014’, Journal des tribunaux,  Vol. 35, No 6579, 2014, p. 677).
The case concerned a former combatant of the Croatian army who was convicted, following two separate proceedings, for war crimes against the civilian population. Having benefited from a general amnesty law which terminated the first set of proceedings, the applicant challenged the resumption of the prosecution and his subsequent conviction, leading the ECtHR to examine the validity of the amnesty he had been granted in the first instance. The ECtHR accepted inter alia that ‘the allegations in the criminal proceedings against the applicant included the killing and serious wounding of civilians and thus involved their right to life protected under Article 2 [ECHR] and, arguably, their rights under Article 3’ (§ 124). It also held that ‘the obligation of States to prosecute acts such as torture and intentional killings is … well established in the Court’s case-law. The Court’s case-law affirms that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State’s obligations under Articles 2 and 3 [ECHR] since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible’ (§ 127).
53      ‘The IACHR’.
54      The ECtHR took into account inter alia the case-law of the IACHR on amnesties to establish that amnesties cannot be permitted in respect of serious human rights violations: ‘The Court also notes the jurisprudence of the [IACHR], notably the above-cited cases of Barrios Altos, Gomes Lund et al., Gelman and The Massacres of El Mozote and Nearby Places, where that court took a firmer stance and, relying on its previous findings, as well as those of the Inter-American Commission on Human Rights, the organs of the United Nations and other universal and regional organs for the protection of human rights, found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States’ duty to investigate and punish the perpetrators of such acts (see Gelman, § 195, and Gomes Lund et al., § 171, both cited above). [The IACHR] emphasised that such amnesties contravene irrevocable rights recognised by international human rights law (see Gomes Lund et al., § 171)’ (judgment in Marguš v. Croatia (§ 138)).
55      See judgment in Marguš v. Croatia (§ 140).
56      See Pérez-León-Acevedo, J.-P., ‘The European Court of Human Rights (ECtHR) vis-à-vis amnesties and pardons: factors concerning or affecting the degree of [the] ECtHR’s deference to states’, The International Journal of Human Rights, Vol. 26, No 6, 2022, pp. 1107 to 1137.
57      See judgment in Marguš v. Croatia (§ 139): ‘… A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances’. Emphasis added.
58      See, inter alia, points 64 to 68 of this Opinion.
59      Venice Commission, Opinions No 1167/2023 and No 1168/2023 of 18 March 2024 on the rule of law requirements of amnesties, with particular reference to the parliamentary bill ‘on the organic law on amnesty for the institutional, political and social normalisation of Catalonia’, (CDL-AD(2024)003, paragraph 74). See also, with regard to self-amnesty, Marxen, K., op. cit., pp. 38 to 45.
60      See, in that regard IACHR, 14 March 2001, Barrios Altos v. Peru (Series C, No 75). With regard to that judgment, see Cançado Trindade, A.A., Évolution du droit international au droits des gens. L’accès des individus à la Justice Internationale. Le regard d’un juge, Pedone, Paris, 2008, in particular pp. 123 to 125; Stahn, C., A Critical Introduction to International Criminal Law, Cambridge University Press, Cambridge, 2019, in particular pp. 259 to 260. See, also, IACHR, 29 November 2006, La Cantuta v. Peru (Series C, No 162); IACHR, 26 September 2006, Almonacid Arellano and Others v. Chile (Series C, No 154); IACHR, 24 February 2011, Gelman v. Uruguay (Series C, No 221). In general, concerning the IACHR’s case-law on amnesty, Pérez-León-Acevedo, J.-P., ‘The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment’, Leiden Journal of International Law, Vol. 33, No 3, 2020, pp. 667 to 687; also, more particularly, with regard to the influence of Judge Cançado Trindade on the interpretation of amnesty laws by that court, see, inter alia, Chiari Gonçalves, V. and Albuquerque, L., ‘A contribuição de Cançado Trindade na interpretação das leis de anistia no Sistema Interamericano de Direitos Humanos: uma análise a partir do caso Herzog’, Revista da Faculdade de Direito. Número Especial: Em Memória do Professor Antônio Augusto Cançado Trindade, No 81, 2022, pp. 299 to 317).
61      See, on the issue of judicial review of amnesty laws, Venice Commission, Opinion No 710/2012 of 11 March 2013 on the provisions relating to political prisoners in the amnesty law of Georgia (CDL-AD(2013)009, paragraphs 43 to 46). The Venice Commission states that a procedure whereby the judiciary is entrusted, by decision of Parliament, to deciding whether specific persons fulfil the general criteria determined by Parliament for the application of the amnesty is consistent with the principle of separation of powers.
62      It should be borne in mind in that regard that that clause was inserted into the LOA following a recommendation by the Venice Commission, as stated in the preamble to that law.
63      As the French Conseil d’État (Council of State) has pointed out, legal certainty presupposes that ‘… citizens are, without having to engage in insurmountable efforts, able to determine what is permitted and what is prohibited by the applicable law. To this end, the regulations laid down must be clear and intelligible, and must not be subject, over time, to variations which are too frequent or above all unpredictable’ (see Conseil d’État, Rapport public 2006 – Sécurité juridique et complexité du droit, La Documentation française, Paris, 15 March 2006, p. 281, available at: https://www.vie-publique.fr/files/rapport/pdf/064000245.pdf).
64      See judgment of 30 April 2020, Hecta Viticol (C‑184/19, EU:C:2020:337, paragraph 52).
65      It should be noted that the ECtHR emphasises the fundamental function of the principle of legal certainty in interpreting the ECHR. Legal certainty for individuals is precisely one of the objectives of the ECHR, since it is directly linked to one of the general principles of interpretation to which the case-law of the ECtHR frequently refers and which is, moreover, proclaimed in the preamble to the ECHR, namely the ‘rule of law’. Yet adequate protection against arbitrariness is an obligation for any State wishing to enshrine the ‘rule of law’ (see de Salvia, M., ‘La place de la notion de sécurité juridique dans la jurisprudence de la Cour européenne des droits de l’homme’, Cahiers du Conseil Constitutionnel, No 11, 2011, available at: https://www.conseil-constitutionnel.fr/nouveaux-cahiers-du-conseil-constitutionnel/la-place-de-la-notion-de-securite-juridique-dans-la-jurisprudence-de-la-cour-europeenne-des-droits). Compliance with the rules of a fair trial has often been associated with the concept of legal certainty. In that regard, the ECtHR has held that: ‘the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 [ECHR] must be interpreted in the light of the Preamble to the [ECHR], which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question’ (ECtHR, 28 October 1999, Brumărescu v. Romania (CE:ECHR:1999:1028JUD002834295, § 61)).
66      See judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606, paragraph 114). See also, to that effect, judgments of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 161 and 162), and of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 136 and 223).
67      See point 46 of this Opinion, footnote 29.
68      This also appears to be the position of the public prosecution in the main proceedings (see point 45 of this Opinion).
69      Adopted in New York by the General Assembly of the United Nations on 10 December 1984, United Nations Treaty Series, Vol. 1465, No 24841, p. 85 (1987).
70      See, inter alia, ECtHR, 18 January 1978, Ireland v. the United Kingdom (CE:ECHR:1978:0118JUD000531071, § 167); ECtHR, 28 July 1999, Selmouni v. France (CE:ECHR:1999:0728JUD002580394, § 96 to 97); and ECtHR, 24 July 2014, Al Nashiri v. Poland (CE:ECHR:2014:0724JUD002876111, § 508).
71      See ECtHR, 6 April 2000, Labita v. Italy (CE:ECHR:2000:0406JUD002677295, § 120): ‘Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’. See also ECtHR, 26 October 2000, Kudła v. Poland (CE:ECHR:2000:1026JUD003021096, § 92).
72      See ECtHR, 1 June 2010, Gäfgen v. Germany (CE:ECHR:2010:0601JUD002297805, § 89).
73      See ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece (CE:ECHR:2011:0121JUD003069609, § 220): ‘ … It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others …. Lastly, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 …’. See also ECtHR, 28 September 2015, Bouyid v. Belgium (CE:ECHR:2015:0928JUD002338009, § 87): ‘Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 …’.
74      See ECtHR, 20 December 2004, Makaratzis v. Greece (CE:ECHR:2004:1220JUD005038599, § 50), and ECtHR, 14 June 2011, Trévalec v. Belgium (CE:ECHR:2011:0614JUD003081207, §§ 55 to 61).
75      I am aware that, in Opinions No 1167/2023 and No 1168/2023 of 18 March 2024 on the rule of law requirements of amnesties, with particular reference to the Spanish Parliamentary bill ‘on the organic law on amnesty for the institutional, political and social normalisation of Catalonia’ (CDL-AD(2024)003), the Venice Commission stated that, ‘as concerns legal certainty, the [Venice] Commission notes that the material and temporal scope of application of the amnesty as defined in Article 1.1 of the amnesty bill is very broad and undetermined’ and, consequently, ‘recommend[ed] narrowing down and defining the material and temporal scope of the application of the amnesty in a more precise way, so as to make the effects of the law more foreseeable’ (paragraphs 94 and 96). It should be recalled, however, that the Venice Commission examines the principle of legal certainty from a general, abstract and normative perspective, aimed at establishing ideal standards applicable in all circumstances. However, in EU law, that principle is assessed not in the abstract, but functionally, in the light of the objectives of the EU legal order and, in particular, in order to determine whether the effectiveness of Directive 2017/541 is compromised. That is precisely what Advocate General Hogan expressed in his Opinion when he emphasised that ‘… the Venice Commission’s analysis is essentially a political one, albeit one informed by a sophisticated legal and political analysis’ and that ‘… the Venice Commission’s Opinion aims at arriving at an ideal system’ (Opinion of Advocate General Hogan in Repubblika (C‑896/19, EU:C:2020:1055, point 88)). Thus, although, with a view to improving legislation, the scope of Article 1 of the LOA could be defined more precisely, that factor cannot, in the present case, be equated with a breach of the principle of legal certainty as guaranteed by EU law.
76      As regards the case where the amnesty is granted while the criminal court is hearing the action, Donnedieu de Vabres points out that the amnesty respects the rights of third parties and does not extinguish the action for damages; if the civil action has not yet been brought, only the civil court may hear it (Donnedieu de Vabres, H., op.cit., No 991, pp. 558 and 559).
77      Merle and Vitu comment,
characteristically
and critically, on the general nature of the amnesty, noting that ‘the drafters of the amnesty law are not hampered by any limit when it comes to determining the offences to which the measure of forgetting will extend’ (Merle, R. and Vitu, A., op. cit., No 945, p. 1111). As for those who have been granted amnesty, the authors distinguish between ‘real amnesty’, namely ‘that granted to the perpetrators of the offences listed in the law, without any account being taken of the qualities of the beneficiaries’ and ‘personal amnesty’, namely that which does not take into consideration the nature or seriousness of the offences committed but ‘certain classes of individuals whose past or particular qualities made them worthy of that measure’ (ibid., pp. 1112 to 1113, No 946). See, also, with regard to a classification of amnesties according to their scope, Siatista, I.M. and Wierda, M., op.cit., p. 259, and Stahn, C., op. cit., p. 260.
78      See point 88 of this Opinion.
79      See point 84 of this Opinion.
80      6/64, EU:C:1964:66.
81      See judgments of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 52), and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 79).
82      See judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 54 and the case-law cited).
83      See judgment of 17 December 2020, Commission v Slovenia (ECB Archives) (C‑316/19, EU:C:2020:1030, paragraph 119).
84      See point 84 of this Opinion.
85      See judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, ‘the judgment in Miasto Łowicz’, EU:C:2020:234, paragraph 44).
86      See judgment in Miasto Łowicz (paragraph 45).
87      See judgment in Miasto Łowicz (paragraph 46).