The debate on amnesty has been at the forefront of current affairs in the midst of negotiations ahead of the investiture. The seven votes of Junts are the keys to the doors of La Moncloa and among Carles Puigdemont’s demands, so that his formation allows the formation of the next Government, the implementation of an amnesty law that erases the crimes committed by him stands out. independence in 2017.
But what is an amnesty law? To begin with, it is time to highlight the differences between amnesty and pardon, two legal figures that are sometimes confused. Both concepts refer to measures of grace that exempt from a sentence, but, while the pardon is a mechanism to forgive the sentence of people who have been convicted, the amnesty is a measure that forgives the crime, whether or not there is a sentence or conviction. .
Thus, a pardon is the total or partial forgiveness of a sentence on an individual basis, although the pardoned person never loses his status as a convicted person, so he would be a repeat offender if he commits new crimes. This does not happen with those who benefit from the amnesty, since this is the legal oblivion of crimes and extinguishes the responsibility of their authors. Not in vain, the word amnesty has a Greek root, amnesia, which means forgetfulness.
“The amnesty is collective in nature and is normally ordered for political reasons of an extraordinary nature such as the end of a civil war or a period of exception,” it is noted in the Pan-Hispanic Dictionary of Legal Spanish, of the Royal Spanish Academy (RAE). . It is a transfer to achieve a greater good, as in the transition from an authoritarian regime to a democratic one. A matter of wiping the slate clean.
The repeal of amnesty sentences, however, is only valid from a criminal point of view, since the illegality of the act committed subsists from the point of view of civil law with the objective of guaranteeing the compensation due to individuals.
In Constitutional Law, amnesty is a form of exercise of the right of grace that corresponds to public powers for reasons of an extraordinary political nature. This is what happened in Spain in October 1977, when the Government enacted an Amnesty law that affected all prisoners with crimes and misdemeanors committed prior to the promulgation of the law. That Amnesty Law was approved in the Cortes with the favorable vote of all the deputies, except those of Alianza Popular and Euskadiko Ezkerra.
Although the Amnesty Law of 1977 was approved as a fundamental part of the transition from Francoism to democracy and in a spirit of harmony, historical memory associations have been denouncing for years that that measure has prevented the prosecution of crimes with political intentions committed before. December 1977.
Currently, however, the Amnesty is not contemplated in the Constitution, so its fit right now is not clear; There are jurists who have declared themselves in favor and others against the constitutionality of the measure. The defenders put forward their position that the amnesty would be constitutional because the Magna Carta does not expressly prohibit it. On the other hand, those opposed to the measure argue that the measure is equivalent to a general pardon, something that the Constitution prohibits in its article 62.
For now, it seems that alternative formulas are being sought to get Junts to allow Pedro Sánchez to govern. As EL MUNDO reports, “PSOE and ERC are already working on a text that would eliminate the criminal responsibility of those who took part in what happened in the fall of 2017 in Catalonia, but avoiding calling it an amnesty.” The quickest way to achieve this would be the registration of a bill and urgent processing by the Board.
There have been antecedents of the right of grace in Spain for centuries, almost all of them related to the powers of the monarchy. Sticking to the 20th century, in 1924 we find the pardons that Primo de Rivera granted, through Alfonso XIII and in the form of amnesty and general pardons, to those convicted as a result of the Annual disaster and to others prosecuted for political or press crimes. The general amnesty for political prisoners in the Second Republic was also applied, signed by Manuel Azaña in 1936 and which freed Lluís Companys. Even during Franco’s regime the dictator promulgated pardons, amnesties and similar legal figures, although these are considered mechanisms to try to give legitimacy to the new national movement.
More recently, the independence challenge became tense when, in 2021, the Parliament of Catalonia approved the separatist amnesty proposal to annul the sentences of the promoters of 1-O, although Congress lawyers paralyzed the processing of the initiative. The lawyers’ report maintained that such a law would imply a general pardon, explicitly prohibited by the Constitution.
