Tuesday, July 5

Certainties and prognoses in pardons

In the pardons recently granted to Catalan politicians convicted by the you process several certainties and some forecasts are raised. Starting with the former, it is undeniable that the State has reacted harshly to the events, imposing severe prison sentences -which some still consider insufficient- and now maintaining the disqualification for public office that will prevent, for example, running for election for several years. It is also a certainty that the prison situation has provoked reluctance in European institutions and judges, aggravated after almost four years of deprivation of liberty. And it is a certainty that these crimes are part of a serious political conflict in which those convicted have the support of almost half of the electorate they are targeting.

It is also incontestable that when the Government assesses the political utility of the pardon, it does not question the correctness or proportionality of the conviction. The Government has said it and the Supreme Court said it in its negative report to the granting of the pardon in this case. It produces a certain embarrassment to have to repeat it because it is at the base of the division of powers, of which the pardon is a manifestation that may or may not be considered obsolete, but which is regulated in the Constitution and current legislation.

In this context, the Government pardons the remaining period of prison sentences, on the condition that no crimes are committed in the coming years. This is expected to facilitate a new climate among Catalans and between them and the rest of Spaniards, which is why it is a necessary but not sufficient condition to advance in overcoming a disastrous political stage. And here begins the prognosis that some resolve negatively and forcefully: pardons, it is said, “will not fix” the problem. With this, in the first place, it is ignored that nobody has said that they fix it definitively and also that in political conflicts of this caliber, there are no infallible recipes or magic instruments but legal, political and social measures to improve the situation and find a way out. . Some have asked me how to measure whether pardons are useful now. Well, as in many other political decisions adopted hoping that they will be useful, this can only be verified within a time, so it would be as risky to ensure that they will fix the problem as it would be flatly denying that they report any usefulness. But if there is an obvious case in which the utility of a pardon can be expected, it is in political conflicts, which explains why the Pardon Law is more generous with crimes of a political nature, as can be seen in its Preamble and in its Article 3, whose I recommend reading. And I am surprised that some who rightly denounce that the you process has fractured Catalan society deny that keeping the prison in this case complicates things even more.

I can understand why the government assessment is not shared in this case, but what seems clear to me is that the cost assumed is minimal, even with regard to the possibility of recidivism, a second forecast that, on the other hand, those who oppose pardon consider infallible and against to which precautions such as disqualification penalties and reversibility in the event of a new crime have been established.

Beyond certainties and predictions, it is surprising that people supposedly well versed in law or advised political leaders said, even before the terms of the pardons were known, that they were “illegal.” They would be – and for this we had to wait to know their text – only if they violated any of the few formal requirements of the Pardon Law, for example, that the pardoned have been condemned by final judgment and are at the disposal of justice Spanish. It would be illegal, not to respect such requirements or not to request the pertinent reports, but in this and other formal requirements, as well as in the requirement of motivation, the Government’s decision has been impeccable. Some support the alleged illegality in the contrary report of the sentencing court, which must be heard by the Government. It is unnecessary to insist that said report is not binding, but if what is intended is that, in practice, what the sentencing court says is always done, that is, that its reports are considered binding contrary to what the court says. law, simply, the constitutional institution of pardon would disappear as a government decision because any decision would be attributed to the judiciary.

And finally, the question of resources. Given the silence of the Pardon Law, the general rules of contentious jurisdiction govern, but in the case of the exercise of the right of grace, said jurisdiction cannot enter into the useful political reasons for which pardons are granted, but only in the formal and procedural questions that have been scrupulously respected. The most doubtful thing at that time is who is entitled to appeal, a question that must be decided by the 3rd Chamber of the Supreme Court, assessing who has the “legitimate interest” required by law. It must be a specific interest for which a benefit is claimed for the appellant and generic appeals to the supposed good that is intended for Spain or the rule of law are not enough. In previous cases, the TS has denied legitimate interest to political parties and unions, so in this case, the doubt is only in the legitimacy of Vox as an accusing party in the trial. In my opinion, as the accusing party, I had the right to effective judicial protection, that is, to obtain a resolution based on law (art. 24 of the Constitution), whether or not it was convicted, so that the sentence already satisfied the judicial protection intended. I do not see an added legitimate interest, because according to what the Constitutional Court has said in other cases, judicial protection does not include a right to punishment or its fulfillment.

In short, constitutionalists are those who accept the Constitution even in that which is not fully shared, without availing themselves of one or the other of its precepts according to what suits the political discourse of each moment.