Thanks to the post-23-J parliamentary arithmetic, we are witnessing a more conducive political climate to debate the possibility of an amnesty for the events of the process. Very different from the animosity with which the bill that a group of jurists made three years ago at the request of Amnesty and Freedom was received, dismissed as “clearly unconstitutional” by the Congressional Committee to prevent it from being debated in plenary. its taking into consideration. I do not want to say that things have to be easy: sectors of the political, media or judicial right, in the company of the classic exponents of the most Jacobin left, see it as an act of discrediting justice - a consideration that continues to be in hands of European justice—as a tragic deviation by the legislator from a decision of the courts that had to avert the danger of secession forever.
It goes without saying that this is a conception far from the ideal of justice that inspires the amnesty. Not in vain, the facts that we want to include should never have been criminally prosecuted. To do so, concepts such as “environmental violence” were created, which was forced to be homologated with an obsolete crime such as sedition. In a liberal democracy, the events of the process would not have caused a true illiberal drift by the Supreme Court, but rather would have implied a declaration of unconstitutionality by the TC and the political confirmation of a major political conflict. 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 setting and the federal government trying to clarify the conditions of future consultations.
In this sense, the pardons or the subsequent reform of the Penal Code, based on the fact that the system allows pardon measures and favorable retroactive laws, served to mitigate some effects of the State's coercive response. But now it is about setting the score to zero and creating sincere and equitable conditions to begin a dialogue on a political conflict accepted by the Government of Pedro Sánchez both in the Pedralbes Declaration (December 2018) and in the agreement to create a "bilateral table of dialogue, negotiation and agreement for the resolution of the political conflict" (February 2020).
It is not a pre-liberal old thing, it is part of 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 transitional justice, that seeks political reconciliation and social peace. In this case, the amnesty has been used both in situations of a new political order and in overcoming serious political crises, such as the case at hand.
Among the first examples we must mention the amnesty of April 15, 1931, which erased the repressive effects of the first Restoration and the dictatorship of Primo de Rivera, or that of October 15, 1977, after the Franco regime. Among the latter, that 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 Algerian war 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 "time of serious political difficulties.
