Sánchez's puzzle to prevent the Supreme Court from overturning pardons

MadridIn the space of a week, Spanish politics has changed paradigms. The debate is no longer about whether or not the Spanish government will grant pardons to the pro-independence leaders, but when, how and what arguments it will give so that the third chamber of the Supreme Court, where they will most likely end up, does not annul them. The Moncloa has entered a period of time aimed at making people understand, both internally and externally, the change of criteria of Pedro Sánchez, who only in the campaign for the last general elections promised that political prisoners would serve their full sentences. He clings to the "general interest" and the need to be guided by the principles of "concord" over those of "revenge". But the president of the Catalan independence bid court, Manuel Marchena, has already drafted a report to prepare the ground for the third chamber of the Supreme Court to overturn the pardons.

Not everything is black and white. The Council of Ministers will be able to choose a wide range of greys when it foreseeably makes public the different pardons. The Ministry of Justice has been working on it for weeks, but needed to know the detail of the arguments of the sentencing court to write each of the reports in response to the twelve independence leaders convicted by the Supreme Court. With the new screen of pardons, the Spanish government has managed to move away from the debate on amnesty and the right to self-determination. The PSOE prevented a CUP motion from prospering this week in Parliament, negotiated with the comuns, to include these two points in the dialogue table. The time of discount has begun and these are the main elements at stake from now on.

The calendar

The council of ministers will decide before the August holidays

Once Sánchez has paved the way for the pardons, he is in a hurry. "We want them to be the sooner the better", socialist sources detail. But there are limits: first to pass the Andalusian primaries of June 13, which will coincide with a new demonstration of the triple right in the Plaza Colón in Madrid,  and then see when it can generate less media hustle and bustle. This could extend it until July, at the gates of the holidays, but the more days pass, the more explanations Sánchez will have to give beforehand.

The arguments

The executive believes that the message of "we'll do it again" does not help

It is the most important piece of the puzzle. And the Spanish president has already outlined what will be the main arguments: to be guided by the "constitutional values" of "coexistence", "harmony" and "understanding". In the pardons signed so far, the reasons of "justice and equity" are usually put forward. But he has in front of him a very tough Supreme Court report in which it is pointed out that Sánchez wants the pardon to stay in the Moncloa. The Spanish president will have to shield his argumentation a lot, especially considering that there is jurisprudence of 2018 that now the court could stretch to try to overthrow the pardon if it considers that with the reports of the Supreme Court and the Prosecutor's Office in hand the principles of "justice, equity and social convenience" are not given.

The changes in the sentence

The Moncloa can choose to reduce them just to avoid jail time

The council of ministers cannot apply a full pardon, since the report of both the Public Prosecutor's Office and the Supreme Court is against it. Therefore, it only has room to reduce prison sentences or disqualification or replace them with other ways to serve the sentence. The most usual in these cases is to reduce the sentence to the limit of two years, which allows to avoid it, or to commute it for economic fines, since it must be taken into account that the pardon does not imply the suppression of the crime, as it would be in the case of the amnesty. In some cases, political prisoners have been in prison since the end of 2017, a period of time that would have to be discounted. The intention is to maintain the disqualification.

The conditions

Campo usually limits all pardons to the condition of not reoffending

"Pardon XXX [name of the person] X months/years of the custodial sentence imposed, maintaining the rest of the pronouncements contained in the sentence in terms of disqualification and fine, provided that he/she does not commit a criminal offence again within two years of the publication of the royal decree". This is the text which, as a general rule, usually accompanies the royal decrees approved by the Council of Ministers after being proposed by the Minister of Justice, Juan Carlos Campo. There is the condition of non-recidivism in order not to revoke the pardon, and this will surely be a guideline used by the Moncloa for political prisoners.

Same or different reports

The Supreme Court has made a single text but the Moncloa prepares several

Although Spanish government sources assure that all the reports will have similar arguments and objectives, Campo opened the door this week during the control session in the Senate to the possibility that there will be different pardons depending on the condemned. The fact is that, in order not to be confused with a "general pardon", which is how Moncloa defines amnesty - the Constitution forbids the king to sign this type of pardon - the council of ministers intends to give the green light to twelve different reports. It contrasts with the Supreme Court's decision to issue a single 21-page mandatory but non-binding opinion. It clashes with the fact that the pardon is an individual measure of grace and that there have been very different reactions to the conviction. This is the case of the leader of Òmnium, Jordi Cuixart, who responded to the Supreme Court by saying that "he would do it again", while the exminister Santi Vila has publicly expressed his support for the pardon and transmitted it to Marchena.

Public justification

The Minister of Justice will face up to the decision in Parliament

Beyond the press conference after the council of ministers in which it is decided on the pardon to prisoners, the Minister of Justice, Juan Carlos Campo, has pledged to appear in Parliament to explain the details of the decision. At the moment, the Moncloa has ruled out the monographic plenary session that the PP has asked for in the lower house for the Spanish president to explain what Pablo Casado's party, paraphrasing the Supreme Court, considers a "self-indulgence". Ferraz has spent months assessing the risks of taking on this hot potato and insists that it is not to ensure stability until 2021, but to definitely try to solve the conflict with the Generalitat. In parallel, we will have to see when Pedro Sánchez and Pere Aragonès meet at the Moncloa and a date is set for the next meeting of the dialogue table.