Some Reflectivos on the Spanish Regulation of the Pardon with Regard to the Case of the «Procés»

Abstract

The pardons granted to those convicted of crimes committed in September and October 2017 during the attempted secession of Catalonia (in the judicial case generally known as The procés) have rekindled the controversy about the current regulation on pardons. As the applicable Law dates from 1870, it is perfectly possible that the ordinary courts decide not to apply its articles or modulate its application, if they consider them contradictory to constitutional requirements. This is the case with pardons granted not for reasons of justice or equity, but for public utility, such as those of the procés, especially when they are granted en bloc —which can mean a general pardon— and there is an evident conflict of interest —because their beneficiaries are the leaders of political parties that give parliamentary stability to the Spanish Government-. In any case, a new Pardon Law would prevent the improper use of measures of clemency and adjust them to what the Constitution requires.