Juan-José López Burniol, 9 September 2023
Image : Juan Carlos Rojas
1) Concept of amnesty: amnesty is the pardon of certain types of crimes, which extinguishes the responsibility of the perpetrators. It differs from a pardon in that: a) the latter exempts from serving the sentence, but maintains the previous record; while amnesty, in addition to exempting from serving the sentence, eradicates all traces of the crime, and b) a pardon is granted for the direct benefit of specific individuals, while amnesty is declared for certain acts for reasons of general interest (to contribute to social peace), although it also benefits specific individuals. Amnesty is, in short, a political decision that imposes the legal oblivion of certain events in order to approach the future without their burden.
2) Position against the admission of amnesty: as amnesty is not mentioned in the Constitution or in the Criminal Code in force, the opposing position invokes Article 62-i) of the Constitution, which prohibits general pardons, which would – by analogy – make an amnesty impossible, given the general nature of amnesty and, furthermore, being a measure that goes beyond a pardon in terms of its effects. It is also argued that the admission of amnesty would give the legislative power undue pre-eminence over the judiciary.
3) Position in favour of admitting amnesty: it maintains that, given the silence of the law on amnesty, there is no legal basis to prevent it, so it is clear that an amnesty can be approved by means of an organic law (required by Article 81 of the Constitution) and a specific law (because each amnesty is different). This is reinforced by the principle that the Constitution must be interpreted in the sense most favourable to the legislator’s freedom of decision.
4) Justification of the amnesty: amnesty is almost always the political solution to a political problem. But not every amnesty is the consequence of a change of regime (as the 1977 amnesty was). Amnesty also serves to close a convulsive period of subversion that a political regime has suffered and overcome. In this case, the state makes a clean slate, shows self-confidence and shows magnanimity towards those who failed in their subversive attempts.
None of the conditions that would justify an amnesty are present in Spain today.
5) Scope of the amnesty: the amnesty should not be granted in terms of the people it benefits, but rather in terms of the acts which, for reasons of general political interest, are declared exempt from criminal sanction. Article 1.I.a) of the 1977 Amnesty Law serves as an example: “The following are amnestied: a) All acts of political intentionality, whatever their result, classified as crimes and misdemeanours committed prior to 15 December 1976”. And, since any amnesty is politically motivated, great care must be taken to ensure that the amnesty does not benefit only one of the opposing sides, but both equally. The geometric expression of justice is symmetry. Likewise, amnesty that is not the result of a change of regime is incompatible with the recognition of the amnestied as victims of the political and judicial repression of the state through a general cause of action. Amnesty extinguishes criminal responsibilities, but it does not make anyone right, nor does it say “who are the good guys” and “who are the bad guys”.
6) Push for amnesty: given the extraordinary nature of the amnesty and its political nature, there must be a large majority of parties that approve it. Otherwise, it will be counterproductive, especially if the beneficiaries display attitudes of renewed defiance. Because those granted amnesty can maintain their ideal and exercise all their rights in their defence, but it is not acceptable for them to boast that they will break the law again.
7) My position: none of the conditions that would justify an amnesty are present in Spain today, so I reject outright the amnesty that is being prepared. And, given that its motive is not – whatever one may say – the general interest, but to pay the price for Sánchez’s investiture, it is totally venal.