Thanks to the parliamentary arithmetic post 23-J we are witnessing a more favorable political climate for debating the possibility of an amnesty for the facts of the process. Very different from the animosity with which the law proposal that a group of lawyers made three years ago at the behest of Amnesty and Freedom was received, dismissed as “palmarly unconstitutional” by the Bureau of Congress to simply prevent debate its consideration in plenary. I don’t want to say that things should be easy: sectors of the political, media or judicial right, in the company of the classic exponents of the more Jacobin left, see it as an act of discrediting justice – a consideration that continues to be in the hands of European justice—, as a tragic deviation by the legislator from a decision of the courts that was supposed to avert the danger of secession forever more.
It goes without saying that this is a conception far removed from the ideal of justice that inspires amnesty. It is not for nothing that the facts that are to be included should never have been criminally prosecuted. To do this, concepts such as “environmental violence” were created, which was brought in under the cover of an obsolete crime such as sedition. In a liberal democracy, the facts of the process would not have caused a true illiberal drift of the Supreme Court, but involved a declaration of the unconstitutionality of the TC and the political realization of a political conflict of the first order. In Quebec there were two unauthorized referendums and the response of the federal authorities was not to take the leaders of the Belle Province to prison, but rather the Supreme Court acted by fixing and the federal government trying to clarify the conditions for future consultations .
In this sense, the pardons or the subsequent reform of the Penal Code, based on the fact that the system allows clemency measures and favorable retroactive laws, served to mitigate some of the effects of the State’s coercive response. But now it’s about setting the score to zero and creating sincere and equitable conditions to start a dialogue about a political conflict accepted by the Government of Pedro Sánchez both in the Declaration of Pedralbes (December 2018) and in the creation agreement of a “bilateral table for dialogue, negotiation and agreement for the resolution of the political conflict” (February 2020).
This is not a pre-liberal old-fashioned way, it is framed within the punitive justice of the 21st century, which uses amnesty in cases of restorative justice – in Portugal and Italy several times to resocialize young criminals – or in cases of justice transitional, which seeks political reconciliation and social peace. In this case, the amnesty has been used both in situations of a new political order and overcoming serious political crises, as is the case at hand.
Among the first examples is the amnesty of April 15, 1931, which erased the repressive effects of the first Restoration and the dictatorship of Primo de Rivera, or the one of October 15, 1977, after Franco. Among the second, the one of February 21, 1936 in relation to the events of October 6, 1934, on which the Court of Guarantees had imposed prison sentences of up to 30 years. With this same purpose, that of creating a new legal framework so that in the new reality the values ??of justice affected by unjust or disproportionate decisions can be recovered, amnesty has also been used in France, after the war in Algeria or recently in New Caledonia. But also in Germany or Italy, with the approval of the constitutional justice of these countries, which has seen it as an exceptional but fair measure in cases of “extreme union struggle”, “popular uprisings” or simply in “times of serious political difficulties”.
