On the threshold of the release of the verdicts and sentences by Spain's Supreme Court against the Catalan leaders who spearheaded the 2017 independence push, although many people believe they should be found not guilty of all the charges, no one believes they will be. Expecting the twelve to be found guilty, some political leaders have suggested that an amnesty would then be needed to move towards a solution of the Catalan conflict. This week, for example, the idea was brought up by ERC's Joan Tardà, whilst CUP's Natàlia Sànchez said it was an option to bear in mind. So what are amnesties and pardons in Spain, and could they be applied in this case?
Background
An indulto, in Spanish law, is a pardon which partially or totally revokes the sentence imposed on the defendant, but they are still considered to be guilty. An amnistía, meanwhile, is an amnesty based on specific events rather than an individual. It means that no one can be found criminally responsible for any related matter. As such, anyone convicted in a related case would then be considered innocent, with everything that entails.
This means, for example, that the twelve Catalans tried in Madrid could be pardoned and have any eventual sentences reduced or revoked, but this would have no impact on the charges facing dozens of others in related cases in other courts. An amnesty, on the other hand, would mean no one could be found criminally responsible for the independence push which could have implications for the other cases.
Whilst pardons can be given for all manner of crimes, amnesties are far rarer and often considered in political cases, the aim being to bury a source of conflict. Or, equivalently, to promote reconciliation through forgetting the past. This was notably attempted in Spain during the transition to democracy after the end of the Franco dictatorship (more on that later).
Practicalities
According to the justice ministry, a pardon is "an act of grace, of an exceptional nature" which the "king grants at the proposal of the ministry, following deliberations by the cabinet". To move ahead, it's essential for there to be a final sentence and a formal request for a pardon which can come from any individual or institution, including the prison or the government themselves. The petition must be accompanied by a report on the individual's behaviour, which influences the final decision, especially when it comes to any remorse they have demonstrated.
In contrast to pardons, which are mentioned in both the Constitution and the Criminal Code, the concept of the amnesty appears nowhere. In other words, a special law would have to be passed, possibly pardoning all crimes of rebellion or sedition committed in a given period, meaning there would have to be a majority in the Congress in favour of such a bill. As such, support would be needed from PSOE.
There's also the question of article 62 of the Spanish Constitution, on the king's powers, which explicitly rules out "general pardons". Some experts believe that could pose a problem.
Precedent
The last amnesty law was passed in Spain in 1977. It aimed to put a full stop at the end of the Franco era and start a new political cycle without resentment and spiralling arguments over the past. By that text, "all political acts, whatever the result, classified as crimes or offences carried out before 15th December 1977" were pardoned. The law was supported by the vast majority of the parties in the Congress at the time, gaining 296 votes in favour, 2 against and 18 abstentions.
When it comes to pardons, they've been granted by governments from both sides of the aisle and for all manner of crimes. Felipe González (PSOE) pardoned divisional general Armada, one of those behind the attempted coup d'état in 1981, whilst Aznar (PP) pardoned some of the PSOE leaders convicted over the GAL scandal (relating to paramilitary forces used illegally against ETA). Under Zapatero (PSOE), the number two from Banco Santander was released. Most recently, Mariano Rajoy (PP) forgave numerous drug traffickers and police officers convicted of torture.
The third option
Various sources suggest there is a third possible path to reduce or even revoke any potential sentences, namely a bill to modify the charge of rebellion in the Criminal Code, reducing the sentences involved. In this case, any effects would have to be made retroactive to be able to apply them to the pro-independence Catalan leaders.