Analyzing the Feasibility and Implications of an Amnesty in the Catalan Independence Movement

Every day that passes there is an increase in rumors, and there are many who assure that it is not a rumor, but rather certain news that will be made public at any moment: Mr. Sánchez is also willing to grant the amnesty that Puigdemont demands as part of the price for contributing to his permanence in the Moncloa palace, a price that is not limited to the amnesty.

If we have to be honest, and it should be, the worst case is that this eventual news is not surprising to anyone, since there is such an awareness that for the acting president there is no price that may seem excessive if it is his continuity in office.

And it should not be forgotten, because then the demand for a referendum on self-determination will come and, why not?, the withdrawal of the Security Forces and Bodies from Catalan territory.

And I limit myself to cutting out and remembering traditional petitions of the independence movement visible in the newspaper libraries.

The electoral result, catastrophic for the independentistas, thanks to the success of the PSC, has put the key to the Presidency in their hands, and Puigdemont, the loser at the polls, is going to use it thinking, above all, of himself.

A pardon is no longer useful for him (which, moreover, cannot be anticipated) but he needs a measure that cancels all proceedings and places him in a position to return to public office and collect the pension of former president of the Generalitat, and all that it can only be achieved, in his way of thinking (which, apparently, is not only his) through an amnesty.

That this is legally possible does not matter to a Puigdemont convinced that he has won the lottery. Faced with this possibility, some jurists have warned that, according to them, amnesty has no place in the Constitution.

Faced with this, some sources close to the PSOE believe that granting an amnesty would be good for everyone and shows that Spain is a strong democracy that is headed by a brave president and legislature and that only the total oblivion of the past since 2017 can allow us to face the future without delays.

Such an optimistic and sectarian way of seeing the issue is opposed by other political arguments that I will not go into, since each one will give their opinion according to their ideas, but also legal ones, highlighting in the first place the opinion of those who understand that amnesty is constitutionally impossible.

Against this opinion is that of others, perhaps more eager to please the government in office, who have declared or written that there is no constitutional obstacle to accepting it.

I have been included along these lines, only in such a biased way that it generates a falsification of my opinion, which, of course, is not that amnesty is a discretionary legal remedy, that it does not entail special problems and that it is similar to a pardon only that, more far-reaching, well it is not like that and I never said anything like that.

I do not agree with those who reject the admissibility of amnesty by invoking article 62-i) of the Constitution, which prohibits “general pardons”, for the simple reason that amnesty and pardon, even though they are both manifestations of the right of grace, they are different legal figures, from which a first fact is derived: the Constitution says nothing about amnesty neither for nor against.

The amnesty is, historically, a manifestation of the right of grace that is not mentioned in the Constitution or in the Penal Code. It was in the CP of 1870 (art.132-3º), in that of 1932 (art.115-1º) and in that of 1973 (art.112-3º).

The one of 1995 chose not to mention it, but knowing that the amnesties of 1976 and 1977 had been regulated by their own law, and that showed that their presence in the CP was unnecessary, since the characteristics and motivations of an amnesty are not foreseeable a priori. , and that is a big difference with the grace of pardon, which, in any case, is subject to the provisions of the Pardon Law of June 18, 1870; by the way, another rule that urgently needs revision).

Therefore, there is no legal basis from which the prohibition of amnesty can be derived, or, better, that a law that grants it can be voted on, which will have to be an organic law, in accordance with the provisions of art. 81 of the EC, and that would determine its scope.

That would be the answer to the legal question, but the problem does not end there. The amnesty has a much more extraordinary character than the pardon, and, normally, it is oriented to crimes with political dimensions, and another characteristic is that it is granted on the occasion of political changes in the State, as a contribution to the resumption of political coexistence.

An important conclusion can be drawn from this: an amnesty implies recognition that the political order prior to it has ended and a new one has been given way, as happened with the Amnesty Law of 10/15/1977, which largely marked the end of Francoism and the transition to the democratic Constitution of 1978.

And that is the crucial point: the demand for an amnesty is coherent with the idea, shared by independentistas and others who are not formally so, that the 1978 regime has ended, but for the many who do not share that idea (among them , it is assumed, the PSOE itself) an amnesty makes no sense because the essential political budget is not given, but a specific problem that affects certain people, who cannot be pardoned because they have not been tried, and to whom the electoral arithmetic has placed in blackmail condition.

Promoting an amnesty law as something compatible with democratic normality is a contradiction, and any analogy with the transition from Francoism to the democratic regime is inadmissible.

But the problems do not end there, without the need to go into the other pro-independence demands, nor to configure an amnesty that is neither general nor linear, but for a small group of recipients (something incompatible with the figure)..

There is something worse: at no time has Puigdemont committed to dismantle what he calls the Consell de la Republica or to continue the path towards independence, if necessary, unilaterally, or to any other of the usual demands.

And that attitude, visible to all, should be reason enough not to promote a law that would only serve to bring the rule of law to its knees and facilitate the resumption of pro-independence activities.