The controversy caused by the amnesty for pro-independence politicians is extraordinary, but what is not exceptional is the measure itself, a mechanism that in the last hundred years has been applied in Spain eight times without taking into account the prosecutor (three since 1977) or general pardons. Governments of all colors have used this legal instrument in moments of political change or to close conflicts, but also on some occasions they have clearly used it for their own benefit.
And if we add to that figure the laws of this kind approved between the 19th century and the first two decades of the next, the numbers reach very large amounts. Sociologist Daniel Escribano, who has studied the political use of amnesties over the last two hundred years, explains that in the turbulent 19th century in Spain, many of these measures were adopted at times of change in the faction in power and that in some cases They had more self-amnesty than anything else.
This is what happened with the measure of grace decreed in 1837, in the final phase of the first Carlist war and when the outcome of the conflict was already clear. On that occasion, crimes committed by only one of the sides were forgiven - the victor, of course - although later, in 1840 and now in peace, the measure was extended to the Carlists. In total, Escribano counts no less than twelve amnesties in the 19th century, apart from numerous more or less general pardons decreed, for example, on the occasion of the arrival to power of a new sovereign. In his opinion, political changes of greater or lesser significance, such as the aforementioned end of the first Carlist war or the First Republic, are behind these measures.
However, although it is true that on many occasions amnesties have served to heal political wounds, in others they have either been instruments for the rulers themselves to exonerate themselves or have been used as a tool by the government in power, he points out. Manuel Torres Aguilar, professor of Legal History at the University of Córdoba and author of History of pardon and amnesty: from the Bourbons to Franco (Tecnos). In the cases in which it has been used as an instrument of pacification, it stands out, for example, with the one approved when the Second Republic was proclaimed, or that of February 1936, which annulled the sentences of those who took part in the revolutionary uprising in Asturias and the proclamation of the Catalan Statute of 1934. A pardon for the latter that was also supported by the right.
On the other hand, in other cases such as the amnesty also approved in 1934, with the right-wing government of Lerroux and which meant forgiveness for those involved in Sanjurjo's attempted coup d'état in 1932, the issue was very different, because it was a measure of grace on the part. “The Second Republic was especially active in this field,” says this specialist, although this dynamic had an immediate precedent in the era of Primo de Rivera. In that dictatorship, an amnesty was decreed that annulled criminal responsibilities for officers accused of negligence in the infamous Annual disaster.
But the most striking of all the self-amnesties is the one that in September 1939, just after the Civil War, was approved by the Franco regime to release from responsibility all those who had committed acts against the Republic between 1931 and 1936, including damages, injuries. or even murders as long as the ideology that had moved the perpetrators was “coincident with the National Movement.”
The use of this legal figure, therefore, has not exactly been uncommon in the history of Spain. To the twelve counted in the 19th century we should add those enacted in the 20th, that is, fifteen more amnesties (seven in the first two decades of the century and eight since Primo de Rivera). The special intensity of those first years is due to the fact that, according to Daniel Escribano, some pardon measures related to crimes of opinion were enacted that were not accompanied by modifications to the penal code. In this way, new amnesties were necessary some time later. And this global balance, furthermore, does not take into account the tax amnesties, of which there have been three since the transition (1984, 1991 and 2012), nor the general pardons repeatedly promulgated in Franco's time but also under democratic governments.
The amnesty for pro-independence politicians is therefore not exceptional if we take into account that between the 19th and 20th centuries there have been almost thirty measures of this type. What is extraordinary, however, is the level of controversy surrounding the measure on this occasion. Escribano points out that the use of this legal figure is not controversial if there is social consensus for its application, as happened with the law of October 1977 that granted amnesty to those who had committed crimes of political intention in their activities in opposition to Francoism, but that also exempted the authorities and officials from criminal responsibilities for their repressive activity.
Torres Aguilar clarifies that one of the few cases comparable to the current one in terms of the intensity of the controversy is that of the 1934 friendship that, under the CEDA government, forgave the participants in the sanjurjada. The measure caused such an institutional crisis that President Alcalá-Zamora initially refused to sign the law because he disagreed with it, although he eventually rectified it. "If he had not signed it - he explains - it would have been as if today the king had not signed it with the current amnesty."
