October 25, 2020

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The State cannot give in to its enemies, but it will always have the duty to try to convince rather than reduce everything to assert its imperium. In today's heated Catalonia, a deflammation is clearly needed so that coexistence that has worked for four decades as the one still maintained by the State and the Basque Country can continue, without going any further. Neither is it lawful but clearly immoral to yield politically and / or legally to the sovereignists to obtain advantages, nor is it either to be irreducibly encased in order to consolidate a populist discourse of irreducible rejection and enmity. It will be necessary to look for ways of confluence that calm the disputes, return normality to the country and allow us to gain time for a long period of time. Because the cycles of sovereignty are long (see Québec) but there is no harm that one hundred years last: modernity goes against particularism, and in the long run this evidence will prevail.

Antonio Papell – 24/09/2020

The Minister of Justice, Juan Carlos Campo, surprised everyone in Congress this Wednesday during the government control session by announcing in passing, in the course of his arguments, that the pardons for those convicted in the ‘Procés’ trial will begin to be processed next week. Campo also insisted that the current provisions of the Penal Code have been reviewed for a long time to update the treatment of the crimes of rebellion and sedition, which are currently governed by criteria that are two hundred years old. It is obvious that today it is not necessary to prevent the entry of the Pavia horse (the Pavia coup d’état was a coup that took place in Spain on January 3, 1874, in the collective imagination is the vision of General Pavia entering Congress on horseback. However, this fact did not actually occur) into the hemicycle but, instead, it is necessary to prevent other threats to freedoms that the former legislator could not foresee.

The governmental procedure that will be initiated to study the possibility of pardoning all those convicted in the process has not been promoted by any political instance but by the private initiative of a well-known Catalan lawyer, Francesc Jufresa, who presented the first of the petitions for pardon for the 12 pro-independence leaders convicted by means of a five-page text that entered the register of the Grace Rights Division of the Ministry of Justice on December 24, 2019. Once the question was raised, even if it was by a third party that has not any interest in the case, the Ministry of Justice is obliged to process it, a procedure that lasts at least six months and in this complex case can take even longer. If you do not proceed in this way, giving a assessed course to the initiative of a citizen, you would be prevaricating.

Subsequently, other petitions for pardon have been presented, which will probably be incorporated into the same file. At the end of August, the PSC, through the deputy Jaume Asens, requested the grace measure for those convicted by 1-O and the reform of the Penal Code to try to deactivate the dispute through gestures of good will. In addition, in July, the UGT, with the support of CCOO leaders and other unions, requested a pardon for former Labor Minister Dolors Bassa, sentenced to 12 years in prison for sedition and embezzlement. In August, three former presidents of the Catalan Parliament – Joan Rigol, Núria de Gispert and Ernest Benach – requested clemency for the former president of the chamber, Carme Forcadell, who is serving a sentence of 11 and a half years for sedition. The Lliga Democràtica, one of the formations that emerged from the outbreak of CiU, has also announced that it will ask for the freedom of all imprisoned politicians to contribute to “reconciliation between Catalans.” And as is logical, the proposal sounds good to Esquerra Republicana, Sánchez’s investiture partner, although this party refers disparagingly to pardons and will continue to prefer amnesty for Catalan politicians indicted by the events of September and October 2017.

The procedure – the Minister of Justice has warned – will be long, as it is in all cases, because it has to incorporate numerous reports, such as that of the Council of State and that of the sentencing court. In any case, the final, irrevocable decision is made by the council of ministers. In our parliamentary democracies, the separation of powers has this striking exception in that the criterion of the Executive is imposed on the judicial decision.

Some, among the independentists and among the constitutionalists, have recalled that after Companys’ independence attempt on October 6, 1934, which caused victims and led the then president of the Generalitat and his most direct accomplices to prison, Azaña signed, after the victory of the Popular Front in 1936, a decree of amnesty for all those people. If in 1931 Francesc Maciá proclaimed the Catalan Republic as the “Integral Status of the Iberian Federation”, a kind of federal formula, generating a conflict that could be quickly reversed, in 1934 Companys proclaimed the Catalan Republic to disassociate itself from the victory of the right , who formed a government with Lerroux at the head. General Batet, the military governor of Barcelona and a very moderate man, tried unsuccessfully to get the Mossos d’esquadra to place themselves at his command. Batet, who would later be shot by Franco for disaffection, used force with great restraint, despite which the episode resulted in 46 civilian and military deaths. Any comparison between those events and October 1 must take into account, along with the obvious similarities, the very obvious and clear differences that distinguish them from each other.

Partly for this reason – because Companys and his collaborators were amnestied – the most conspicuous independentists do not want today the pardon, which is a measure of grace of the King that does not erase the crime but reduces the sanction, and they aspire to amnesty, that it does cancel the very events that gave rise to the penalty. Amnesty is not contemplated in the Constitution of 78, although pardon is, with the particularity that “general pardons” are prohibited, which leads a majority of constitutional experts to believe that this prohibition tacitly indicates that amnesties, which they involve more intense concessions than general pardons, they are outlawed.

What must be taken into account is that history is not static, values ​​and principles evolve and it is possible that today certain actions are not considered punishable to the same degree that were previously punishable to a certain extent (See “The impossible amnesty ”By the criminal lawyer Enrique Gimbernat, October 2019). In the case at hand, any well-informed and fair observer will come to the conclusion that there are seriously disproportionate sentences of twelve years in prison for crimes such as those committed on October 1, 2017 preceded the previous month by the enactment of clearly illegal laws. , “Coup plotters”, in the Parliament of Catalonia. Consequently, it makes sense, in order to strengthen the rule of law and reinforce the principle of legality, to technically review the criminal law, which would surely facilitate a downward readjustment of the penalties imposed in this case. It must be taken into account that both the judging court and other jurisdictional instances have recognized that the criminal classification of rebellion and sedition in our venerable Penal Code should be adjusted to these times, while the penalties are adapted to the true social reproach in each case. And if these uncertainties are perceived in the judicial world, it is not a bad thing that in the Chambers the possibility of reviewing the obsolete is raised.

All these apparently reasonable movements have received very serious outbursts from conservative sectors, who assure that both the processing of pardons and the thorough revision of the Penal Code are gestures of surrender to the pro-independence movement in order to obtain their votes in the preparation of State budgets and in other matters in which the precarious government majority may need them. It is evident that everything has to do with everything and that it would be absurd to deny these evidences, but it would be absurd to persist in the opposite side, in the persistence of the enmity ad infinitum. The State cannot give in to its enemies, but it will always have the duty to try to convince rather than reduce everything to assert its imperium. In today’s heated Catalonia, a deflammation is clearly needed so that coexistence that has worked for four decades as the one still maintained by the State and the Basque Country can continue, without going any further.

Neither is it lawful but clearly immoral to yield politically and / or legally to the sovereignists to obtain advantages, nor is it either to be irreducibly encased in order to consolidate a populist discourse of irreducible rejection and enmity. It will be necessary to look for ways of confluence that calm the disputes, return normality to the country and allow us to gain time for a long period of time. Because the cycles of sovereignty are long (see Québec) but there is no harm that one hundred years last: modernity goes against particularism, and in the long run this evidence will prevail.

OpenKat

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