June 16, 2021

The next steps in the processing of the pardon to the leaders of the procés after the unfavorable and non-binding report of the Supreme

The Supreme Court has made public this Wednesday the report in which opposes the pardon of those convicted of the procés before his lack of “repentance”. After obtaining the position of the Prosecutor’s Office and the penitentiary, the court headed by Magistrate Manuel Marchena defends that it does not appreciate “reasons of justice, equity and public utility” that justify the granting of this measure of grace – regulated by a law of 1870 and contemplated in the Constitution – to the twelve condemned.

Sánchez raises the pardons to the pro-independence leaders and the right anticipates a judicial war

Sánchez raises the pardons to the pro-independence leaders and the right anticipates a judicial war

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This report, however, is not binding because the final decision corresponds to the Council of Ministers at the proposal of the Minister of Justice, Juan Carlos Campo, who in recent days has asked to treat with “naturalness” the hypothetical pardons to those convicted of the process. , whether favorable or not, or “total or partial”.

The Supreme Court’s report does close the door to a total pardon —which supposes the remission of all penalties not fulfilled—, since the law establishes that the total pardon will only be granted in the event of a favorable report from the sentencing court. Yes, there is the possibility of a partial pardon, which supposes the forgiveness of some or some of the penalties imposed, or of part of all still not fulfilled. The legislation also establishes that the commutation of the sentence or penalties imposed in other less serious ones is also considered a partial pardon.

In legal circles close to the prisoners, before the Supreme Court’s report, the idea that it would be a partial pardon was already shared and that in any case it would maintain the disqualification sentences in their entirety – which implies that politicians will not be able to appear again at the elections for about ten years, when the majority will already be over 60 years old. The main question is whether the grace measure will affect half or a third of the prison sentences to which they were sentenced.

In the event that pardons are favorable to those convicted, they must be processed through a royal decree – which will be signed by King Felipe VI – and published in the Official State Gazette. Although the 1870 law established that the pardon should be embodied in a “motivated” decree, the 1988 reform eliminated that express requirement to motivate the grace measure. In the last semester, Justice granted 18 pardons, of which all were partial and none of them had against the reports of the Prosecutor’s Office and the sentencing court, which is what will foreseeably happen in the case of the procés.

If the Government finally grants pardons, PP, Vox and Ciudadanos have already announced that will appeal this decision. They will have to do it before the Contentious-Administrative Chamber of the Supreme Court, since as it is an agreement of the Council of Ministers, this is the body to which the jurisdictional control corresponds. In any case, since the pardon is a “political act”, the High Court cannot make a jurisdictional review of the decision to pardon, but must limit itself to verifying whether the processing – the so-called “regulated elements” – has been done correctly.


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