The Government granted this Tuesday partial and conditional pardons to the nine independence leaders who were still imprisoned for the procés. The grace measure is justified in each case with separate reports that exceed thirty pages and in which the Executive, in addition to motivating the reasons of public utility that have led it to approve the pardons, tries to shield itself from the resources that have already been announced PP, Vox and Ciudadanos. Almost a third of the files are devoted to detailing the constitutional and legal framework of pardons, citing numerous jurisprudence of the Constitutional and Supreme Court that defines the scope of jurisdictional control of pardon decisions.
The Government hopes that the independence movement will make a move after the pardons
The reports expressly cite the current president of the General Council of the Judiciary (CGPJ), Carlos Lesmes, who in 2013, when he was a magistrate of the Contentious-Administrative Chamber of the High Court, opposed in a private vote to the annulment of justice the pardon that the Government of Mariano Rajoy had granted to a kamikaze driver. In that letter, Lesmes pointed out that when it exercises the right of grace, the Government acts as a “political body” and not as “head of the Administration”, therefore its act constitutes “a different category from the administrative act.
Citing this and other particular opinions and judgments, the Government argues in its reports that since the pardon is a “political act”, the Supreme Court cannot make a jurisdictional review of the decision or not to pardon and must limit itself to verifying whether the processing – the so-called “regulated elements” – it has been done correctly. This has happened in the case of the procés: the sentencing court and the Prosecutor’s Office have issued their mandatory but non-binding reports contrary to the pardon and the prisons have reported on the evolution of the inmates before the Government has made the decision.
The files recall that the Supreme Court has defined in several sentences the “extension” that jurisdictional control can reach with respect to this grace measure. In the judgment on the kamikaze, the Contentious-Administrative Chamber of the Supreme Court affirmed that its review cannot be extended to “the decision to pardon or not to pardon” and that in another subsequent judgment, of 2018, the same Chamber said that the Government He is free to choose and value the very varied reasons of “justice, equity and public utility” —which are the three reasons authorized by law to grant pardon— which, in each case and in view of his specific circumstances, lead him to grant clemency. However, these must “keep the necessary coherence with the facts that constitute their factual support” and this can be proven to “rule out any hint of arbitrariness.”
In this regard, the Government focuses on the criterion of public utility to justify pardoning those convicted of sedition. “Few purposes are as worthy as restoring coexistence and harmony between Catalans or giving an opportunity for a new beginning in relations between Catalonia and Spain,” remarks the government report, which describes the pardons as “a decisive step” to “normalize politics in Catalonia”.
The Government’s conclusion is that “a gesture of relaxation” such as pardon is necessary to “open opportunities for dialogue” despite acknowledging that the measure is not without “drawbacks” and “risks.” And the finishing touch to his argument are the events of last week in which the Government emphasizes that the commitment to dialogue between the Government and the Generalitat “has been adding broad social support”, and cites as an example the last plenary session of Congress that overthrew a motion of the PP against the measure of grace or the support of unions, businessmen and bishops to the measure. Not granting the pardon, adds the Executive, would contribute to “the aggravation and chronification of the conflict” and would not be understood by Catalan society, “even non-independence”.
Argumentation “solid “and” sufficient “
Although the three rights confirmed this Tuesday that they will appeal the pardons, the Government has shown confidence in the “solid” and “sufficient” legal reasoning of their reports. According to executive sources, the revocation of the pardons would be a difficult decision to make. In fact, the legitimacy of political parties to appeal them is even in doubt. Lesmes himself wrote in a 2013 car that the deputies and senators were not entitled to ask the Supreme Court to revoke a government pardon. Unlike criminal cases, the contentious-administrative jurisdiction, before which government acts such as pardoning the procés prisoners can be appealed, is very restrictive when it comes to allowing political parties to appear. The most common is that the pardon is appealed by the victim of the crime.
The hypothetical resources do not stop the execution of the pardons, explain sources from the Supreme Court. The only way that the appellants would have to avoid the release of the prisoners would be to request it through extremely precautionary measures that would force the Chamber to resolve within 48 hours and without listening to the other party – in this case, the Administration – if it paralyzes or not its execution until its decision on the merits of the appeal. The legal sources consulted see this paralysis as very unlikely considering that it is a measure of freedom and that even the Supreme Court has in the past questioned the legitimacy of the political parties to appeal this measure of grace. They have a similar opinion in the Executive, where they remember that in addition in this case an irreversible situation is not created that requires a decision within that period on the precautionary claims presented.
No clues on the reform of sedition
The files of the pardons are divided, broadly, into two main sections: the Government’s attempt to shield the grace measure, citing abundant jurisprudence of the Supreme and the Constitutional Court, and the reasons of public utility that justify the granting of the measure of grace as the first step for dialogue and “responding to the profound social and political crisis” in Catalonia. But there is no mention whatsoever about the crime of sedition to which they were convicted and the reform proposed by the Executive, which was forcefully censored by the Supreme Court in its report against pardons.
The Chamber chaired by magistrate Manuel Marchena rejected the criticisms of the “punitive excess” of the crime of sedition based on the comparison with the European Penal Codes that punish this crime with lower penalties, precisely the reason for the Government to undertake the reform.
The Supreme Court argued that the sedition was not only at stake “public order, but also the principles on which democratic coexistence is based.” And that is why he compared the crime of sedition in Spain, included in the section of the Penal Code of crimes against public order, with the types of European countries that punish the attack against the unity of the nation, equivalent to the rebellion to which the prisoners were not convicted.
In France, three articles of the Penal Code punish with penalties that can reach life imprisonment “attacks on the fundamental interests of the nation, its independence, the integrity of its territory, its security and the republican form of its institutions,” he said. In Germany, Article 81 – one of the crimes of high treason – punishes with life imprisonment or imprisonment of at least 10 years “force or threat of force against the constitutional order. Penalties of up to 12 are set in Italy for “violent attacks against the integrity, independence or unity of the State,” recalled the Supreme Court, who also indicated that in Belgium an attempt to change the form of government is punished up to 30 years.
By not even presenting the reform of the crime of sedition, the Government has chosen to motivate the pardon only based on political reasons of public utility, avoiding those of equity and justice that would combine the time spent in prison and the reduction of penalties for sedition provided by the Executive ..
What the Government does mention is a section of the pardon law that expresses more flexible conditions for those convicted of sedition to be pardoned due to the very nature of the crime “and its high government considerations.” The pardon law, the file argues, grants greater discretion to the Government “so that it can do what at any time is considered more convenient for the general interests.” With these wickers, the pardon ball will go to the Supreme Administrative Court.