Juridification of the Independence bid

The Supreme Court rejects pardons and leaves political prisoners in Sánchez's hands

Marchena highlights lack of repentance and conditions Spanish government, which may only grant a partial pardon

3 min
Marchena punishes the architects of the 1-O but rules out rebellion

MadridPedro Sánchez's time for pardons has come. More than two and a half years after the sentence, he will have to get off the fence if he wants to make a gesture towards political prisoners, after the Supreme Court settled the process and transferred the final decision to the cabinet. As expected, the court presided over by Manuel Marchena is opposed to granting the measure of grace for all those convicted, a fact that already conditions the Spanish government because it will not be able to grant a full pardon. This decision comes in the middle of political debate on the measure of grace because the head of the executive has already hinted that it will grant them. "The Constitution includes a time for punishment and a time for concord. The government will make the decision for the benefit of harmony and coexistence," he said on Wednesday during the control session in Congress.

The court presided over by Manuel Marchena rejects the pardon for the 12 convicted and highlights the lack of repentance of those involved. The prisoners avoided responding to the room when they were asked for their position on the matter before making the report and their statements have been guided by the slogan of the president of Òmnium Cultural, Jordi Cuixart, "we will do it again". However, in several interviews they have accepted pardons as "an individual solution" which they cannot oppose. Marchena writes in the report that he cannot include "the slightest proof or the faintest hint of repentance".

"Only by making this legal requirement more flexible and freeing it from the need for a feeling of contrition for the act committed could we visualise a willingness to reunite with the legal order undermined by the crime. The message transmitted by the condemned in the exercise of the right to the last word and in their subsequent public statements is very expressive of their will to relapse into the attack the pillars of democratic coexistence, even assuming that the struggle for their political ideals - of unquestionable constitutional legitimacy - would authorise the mobilisation of citizens to proclaim the non-observance of the laws, the substitution of the head of state and the unilateral displacement of the source of sovereignty", the magistrates resolved.

The president of the Supreme Court and the General Council of the Judiciary, Carlos Lesmes, followed the same line in statements this Wednesday. He endorsed pardons as a measure of grace in a context of "concord", using the same words as Sánchez, although he has questioned whether the pro-independence side is committed to this scenario. "A pardon when there is no concord is difficult to accept," he said at a symposium organised by the Madrid Bar Association.

Supreme Court Report against the concession of pardons (PDF)

The Supreme Court thus leaves the procedure in its last step: the discretionary decision of the executive, once the different institutions that have taken part in the court case have expressed themselves on the matter. The Public Prosecutor's Office and the court have presented their reports in which they give reasons for not granting it - the State Attorney's Office did not get involved so as not to anticipate the executive - and now the cabinet has the files on its desk. This will no longer necessarily be a reasoned resolution - the law says that a pardon is given for reasons of justice, "equity or public utility" - and the arguments that tip the balance will not be public. Precedents indicate that pardons granted with the reports of the sentencing court and the public prosecutor's office to the contrary are exceptional, but this case has its own rules.

The pardons for the pro-independence leaders are a decision with far-reaching implications and will mark Spanish politics in the final weeks before the summer. The parties that have supported Sánchez's investiture and budgets would not understand it if there were not a move to bring about the release of political prisoners in the short term, while the political right has already jumped at the Spanish president's throat over the privilege for those they consider to have promoted a "coup".

Within the coalition, Unidas Podemos has not hidden its position in favour of pardons, and the new leader of the coalition, Yolanda Díaz, in recent days has indirectly endorsed it, stating that the "problem of Catalonia is a problem of Spain" and that dialogue must be faced "without complexes". In the socialist part of the government, the first to speak of this measure was the first secretary of the PSC, Miquel Iceta, during the election campaign for the December 21, 2017, straight after the suspension of self-rule in Catalonia. With greater or lesser clarity, several PSOE ministers have left the door open to this possibility in recent months. Sánchez himself, in his investiture speech in January 2020 - made possible by the abstention of ERC - said that a stage of "de-juridification" was beginning.