Amnesty, dissension and rigor

On many occasions politics marks the time of the legal debate, and this case will not be different. In recent weeks, we have learned of the Government’s willingness to pass an Amnesty Law by the legislator, which would mean the extinction of the criminal responsibility of those who were accused and accused in Special Case 20907/2017 before the Second Chamber of the Supreme Court and, who knows, of someone else investigated in the criminal cases of the misnamed “Procés”. We do not yet know the personal scope of the intended rule of grace, but it can be guessed.

I will not and should not refer to the political side, it is evident that we all have the right to support and defend our own ideology and not to manifest it, as established in Article 16 of the Spanish Constitution (EC), but it is not the purpose of this article. Its purpose lies in the need for jurists to fight legal arguments of dubious solidity that are multiplying everywhere in favor of this amnesty. I am referring, of course, to the text published by the Spanish newspaper El Pais on October 5 of this year, authored by Xavier Vidal-Folch.

I agree with Mr Vidal-Folch on something. The final word on the adequacy of the future Amnesty Law to the Constitution corresponds to the Constitutional Court, in accordance with Articles 1.1 and 2.1.a) of Organic Law 2/1979, of 3 October, of the Constitutional Court, and with Article 161 EC. There is no greater interpreter and guarantor than he does, notwithstanding that it is the ordinary courts that will first ensure respect for constitutional provisions when interpreting and applying the law. Otherwise, I can only disagree.

It is said that the amnesty “is expressly protected by the Council of Europe”, that “the Convention on the Transfer of Sentenced Persons of the Council of Europe allows the parties to grant the pardon, Amnesty or commutation of sentences in accordance with the Constitution or its other legal provisions (Article 12). Well, precisely the content of the quote of Article 12 of the Convention is the key. To the extent that the constitutional texts or the domestic order of a State (which is party to the convention) make it possible, amnesty may be granted. It is a hypothetical conditional, because first we have to establish whether our right allows the measure of grace or not. Then, if so, this text as an instrument of international judicial cooperation in criminal matters constitutes it as a limit for the transfer of sentenced persons. It is not a direct source, or a main argument if you will, to endorse it.

In the same block it is said that “amnesty directly incorporates several legal norms […], among them the Criminal Procedure Law, which includes the term in article 666.4“. The precept to which it refers is undoubtedly correct, and there is included as article of previous pronouncement the amnesty together with the pardon. Both are configured as obstacles or obstacles to the criminal process that, if judged by the Court by virtue of self-motivated action (article 674 LECrim), will give rise to free dismissal, with the effect of res judicata (article 675 LECrim), preventing any criminal proceedings against the accused who had alleged it.

However, we have to point out something obvious: The Criminal Procedure Law is dated 1882, and it is a legal text that has been reformed on the basis of patches. Here we have to do some historical-legal analysis of criminal procedural rules. Consider that the figure of the Municipal Judge (article 28 and LECrim concordant) is still contemplated, without having been repealed, communication via telegraph when a diplomatic representative denies his authorization for an entry and registration (article 560 LECrim), Or the entry into prison of mentally alienated persons once a conviction has been issued (Articles 991 and 992 LECrim). Being as it is an ancient text, although of great technical quality as a whole, it is normal that it foresees a historical figure such as amnesty.

As constitutional provisions prior to the LECrim, the Magnas Letters of 1812 or 1869 already provided for amnesty. Particularly striking is the case of the text of 1869, which demanded the approval of a special law to authorize the King to grant amnesty (article 74). In the draft Constitution of the Spanish Federal Republic of 1872, the President was allowed to grant pardons (Article 82.9). Even in a Royal Decree of October 15, 1833, Queen Elizabeth II, through the Regent Maria Cristina, promulgated a broad amnesty in favor (among others) of participants in political crimes and participants in the military insurrection of the Americas. Needless to say, the crimes prosecuted by the Supreme Court are not political crimes, but crimes against the Public Administration (embezzlement of funds) and against public order (sedition, repealed).

It seems logical that a law subsequent to all the legal texts cited above provides for amnesty. The fact that it is provided for in the Spanish criminal procedural law does not imply per se that it is constitutionally admissible, since it is the legal texts that have to be interpreted in accordance with the Spanish Constitution of 1978 and not the other way around. Even if this is admitted, which would already be a real legal mess, the Penal Code of 1995 (the one in force, without prejudice to its subsequent amendments) curiously does not contemplate amnesty as a cause of extinction of criminal responsibility.

Mr. also says Vidal-Folch that “Article 62 covers it as a right of grace […] and in STC 147/1986 the magistrates reinforce the differentiating reasoning of pardon and amnesty, include both in the broad framework of grace: Recognized by the Constitution in its various institutes, except that of the general pardon.” Let us go in parts, as the infamous London serial killer would say.

Article 62 EC expressly prohibits general pardons. A pardon, conceptually, supposes the forgiveness of the criminal consequences for a committed fact that is punished as a crime. If it is individual, it is preached of a sentenced person in firm (it is not possible to pardon someone without a firm conviction in accordance with article 2 of the Law of the Pardon). If it is general, an innumerable number of convicts will benefit, hence in order to safeguard the principle of legality, equality and the constitutional function of the Judiciary are prohibited. Individual pardon, yes. General No.

It is true that the Constitution  does not prohibit amnesty. It also does not allow it. By its effects, scope, and motivation, it is the closest figure to a general pardon. In fact, its consequences are more beneficial for the prisoner, since amnesty is the “clean slate”, a step beyond pardon.

Notable jurists in the field of Constitutional Law such as Manuel Aragon, Teresa Freixes Xavier Arbos or Miguel Presno Linera consider that the amnesty violates the principle of separation of powers (in terms of the actions of the Judiciary) and the principle of equality before the law, as well as the principle of equality before the law. And that if they did not want to include it in the Constitution it was because the Constituent Assembly did not want it that way. Constructing a pardon and forgetfulness of a criminal proceeding for serious crimes for a very specific number of offenders also violates legal certainty, and Article 117 EC (the aforementioned jurisdictional power).

In the pardon report issued by the Second Chamber of the Supreme Court in the above-mentioned special case, this paragraph is most illustrative:

Amnesty would thus be presented – unlike pardon – as a legal instrument for healing unjust sentences. This Chamber understands that addressing the debate on the constitutionality of amnesty as a formula for the widespread extinction of criminal responsibility declared by judges and courts would exceed the terms that are typical of this report. But this preference for amnesty – justified in political moments of the transition from a totalitarian system to a democratic regime – ignores a historical teaching that, in many cases, is not the case. amnesty laws have been the means enforced by dictatorial regimes to erase very serious crimes against people and their fundamental rights. Political amnesty decisions are part of the collective memory that served to hide crimes whose forgiveness and consequent impunity they tried to disguise through end-point laws, and which were neutralized precisely by the Courts.”

This report, initialed by H.E. SRES. Magistrates Manuel Marchena Gomez, Andres Martinez Arrieta, Juan Ramon Berdugo Gomez de la Torre, Antonio del Moral Garcia, Andres Palomo del Arco, and Ana Maria Ferrer, seems to allude to laws such as those approved in Argentina by Raul Alfonsin, Or to Decree Law No. 2191 of April 18, 1978 in the Chile of Augusto Pinochet. Despite the disparity of scenarios, there is a common pattern in this reasoning of the Chamber: Using amnesty not as a backbone of a regime change, but as a means to achieve impunity for those who commit crimes.

On the other hand, the STC 147/1986 cited in the news of the newspaper El Pais, which brings cause of the STC 63/1983 as far as the argument of the amnesty is concerned, states precisely that this “is a legal operation that, based on an ideal of justice, seeks to eliminate, at present, the consequences of the application of a certain regulation – in a broad sense – that is rejected today as contrary to the principles inspiring a new political order.” That is, in this case it would mean rejecting a regulation that has emanated from a fully democratic Parliament and that aims to protect the public funds of the different Public Administrations and the security and legitimate trust of citizens in the normal functioning of those.

As the same article recognizes, it seems that the principle of equality of all Spaniards before the law, which is provided as a superior value of the legal system (article 1.1 EC) and as a principle, right and introductory inspiration to fundamental rights and public freedoms (article 14 EC), it would be hard to coexist with an amnesty, for its aims are not inspired by principles of equitas or criminal policy, but purely driven by political motivations.