ERC, JxCat, the CUP and the PDECat registered in March 2021 in Congress an amnesty bill for all those prosecuted and convicted of the process since 2013, a claim that has returned to the fore after last Sunday’s elections that left Carles Puigdemont’s party, JuntsxCatalunya, with seven deputies who are key to the investiture of Pedro Sánchez.

Then the Congress Table refused to process the bill with the votes of PSOE, PP and Vox, assuming the recommendation of the chamber’s lawyers who equated it to a “general pardon”, something that is expressly prohibited by the Constitution (EC).

However, the Magna Carta does not mention the figure of amnesty and the Constitutional Court has not had the opportunity to rule on the matter. Even so, a good part of the penalists do not see a place for it. This is the case of the professor of Criminal Law Enrique Gimbernat, who argues (El Mundo 10/9/2019) that “it is impossible that the least beneficial (the general pardon) has been declared expressly unconstitutional in the EC and that the most beneficial (the general amnesty) has not been declared unconstitutional”.

UB Constitutional Law professor Xavier Arbós adds another argument that makes him lean “with all the caution in the world” towards the unconstitutionality of the amnesty. Based on the idea that the “EC grants judges the power to judge and enforce what is being judged”, Arbós argues that if the pardon –which requires a prior trial and only eliminates the penalty but not the crime-, ” it takes away from the judge the possibility of his sentence being carried out”, the amnesty – which eliminates any trace of the crime – “erases all the role of the judge”.

In contrast, former Supreme Court magistrate José Antonio Martín Pallín maintains that everything that is not expressly prohibited can be used if it does not contradict constitutional principles. An argument that the independence movement clings to, which he sees in this figure as the only one that allows all the people affected throughout the process to be covered. In this sense, Marta Vilaret, leader of Esquerra, alleges that there is currently an amnesty law in force, that of 1977, which served both to release political prisoners of the Franco dictatorship and to release authorities and officials of the regime from criminal liability. .

This was not the only one that existed during the last century in Spain. The independentistas, in their proposed law, recalled that of 1934, which annulled the 30-year prison sentences imposed on President Lluís Companys and members of his government for the events of October 6, a measure that the proponents see as being connected with the current situation “as a way to overcome a serious political conflict.”

But Professor Arbós recalls another precedent of a very different sign: the law promulgated by Franco after the Civil War that considered, according to the text, “not criminal acts of political-social action” committed between 1931 and 1936 and that “obeyed an impulse of the most fervent patriotism and in defense of the ideals that provoked the glorious Uprising”, including murders and torture.

In the European environment, it is also worth remembering the various amnesty laws approved in France linked to the decolonization process in Algeria, not only for the Algerians detained for their fight against the metropolis, but also later for the French generals who revolted against the agreements of peace. Likewise, one of the articles of the 1988 law for the holding of a self-determination referendum in New Caledonia included an amnesty for crimes of a political, social or economic nature committed within the framework of the self-determination process and excluding blood crimes.

On the other hand, there is also the amnesty law in Portugal, approved in 1996, to grant amnesty to the representatives of a revolutionary organization, including one of the heroes of the Carnation Revolution of 1974.