The amnesty that the independence movement is demanding for all those accused and convicted of the “Procés” goes a step further than the pardon from which the independence leaders condemned by the Supreme Court for their actions have already benefited by decision of the government Pedro Sánchez. Role in the sovereignty challenge in Catalonia in 2017.
Although they are sometimes confused and used interchangeably as if they were synonyms, amnesty and pardon are different terms with different scope.
The main feature that distinguishes them is that, although the pardon implies the forgiveness of the punishment imposed – the beneficiaries must therefore necessarily be convicted – the amnesty does not only imply the forgiveness of the punishment, but also the forgetting of the crime committed, a pure one Conviction, implied This is tantamount to saying that this criminal behavior never occurred. This happened, for example, in 1977 with the amnesty law after the Franco regime.
The recipients of the pardon measure also vary: While the pardon is an individual measure (which must be justified), the amnesty is of a general nature, so the beneficiaries are a group of people.
Both numbers also differ in their legal basis. The pardon is provided for in the Constitution, whose Article 62, when detailing the duties of the King, also includes the “exercise of the power of pardon in accordance with law,” which cannot authorize a general pardon. The Magna Carta, however, says nothing about the amnesty, a silence that divides legal experts over the constitutional framework of the measure. Some are clear that the explicit ban on general pardons is all the more reason to rule out amnesty, a highly political decision. However, other constitutional lawyers argue that if amnesty should have been banned, it would have been expressly done so in the Magna Carta.
So if Sánchez finally agrees to advance an amnesty law that should be approved in the Cortes, the organic bill must be very careful to justify that it is not a general measure that endangers the principle of equality (the comparative harm that he causes). may affect others who have been investigated or convicted of the same crime that is the subject of the pardon measure).
Total pardon: reasons for “public benefit”
Unlike amnesty, for which there is no statutory regulation, pardon is regulated by law, which makes its grant by the executive fully dependent on, in the opinion of the Sentencing Court and the Council, “reasons of justice, equity or otherwise.” public benefit”. of the state. In the case of the “procés” pardons, the Supreme Court was against it, which only left the door open to the government for a partial pardon, which it eventually granted to Oriol Junqueras and the rest of those sentenced to prison, which, however, did not meet the disqualification sentences imposed by the Supreme Court .
Another feature that distinguishes both measures of clemency is that those who have been granted amnesty, by accepting the forgiveness of the crime committed (and not just the sentence), have their criminal record expunged (which is crucial in the event of recidivism), that disappears, but not in the case of pardon.
The RAE dictionary defines pardon as “the grace by which a sentence is remitted or commuted in whole or in part” and describes oblivion as “legal forgetting of crimes, extinguishing the responsibility of their perpetrators.”
Once the amnesty is approved by Parliament, it is the courts that must legally apply it by filing lawsuits or agreeing to annul the verdicts.
