The “public utility”, the key so that the Government protects the pardons to the leaders of the trial


Updated: Friday May 28, 2021 19:48

Posted: 05/28/2021 7:47 PM

The path to pardoning the leaders of the trial begins and ends in the Supreme Court, but not in the House itself. The magistrates who tried and convicted 12 of the leaders who led the October 2017 independence attempt for sedition, disobedience and embezzlement have already unanimously expressed their rejection of the granting of the pardon, but others magistrates will be those of the third litigation chamber. -Administrative, which will have to assess whether the act of the Executive is legal or should be revoked.

The government has no doubts that pardons are the only way to try to resolve the problems of coexistence that the trial has been causing for years in Catalan society. That same Friday, Vice-President Carmen Calvo defended – against the critical voices raised in certain sectors of the PSOE, such as those of Felipe González or Alfonso Guerra – that it is “a legitimate instrument , legal, constitutional and democratic. “and that the final decision is no longer in the field of justice, but in that of politics.

The step will therefore have to be taken by the Council of Ministers in the coming weeks, which will approve the pardon decrees on a proposal from the Minister of Justice, Juan Carlos Campo. Ministerial sources consulted by LaSexta indicate that an individual file is being prepared for each of the 12 convicted persons which will make it possible to resolve all the requests for pardon recorded. And there are several.

The pardon was not requested personally by any of those concerned, but by political parties such as the Democratic League, criminal lawyers, individuals and a group of inmates at Lledoners prison, where the male leaders convicted by the Supreme Court. . The UGT union also asked for the pardon of the former Minister of Labor Dolors Bassa; the former presidents of the Parliament of Catalonia Núria de Gispert, Ernest Benach and Joan Rigol, requested it for their counterpart Carme Forcadell, and the Fundació Catalana de l’Esplai did it for Jordi Turull.

“All these requests will be grouped together in a single file for each person”, they explain from the Ministry of Justice, so that the Government individually motivates the reasons which, in its opinion, exist to grant pardon to the condemned. Despite the fact that the Supreme Court spoke of “self-indulgence” of the fact that “some of those who aspire to the benefit of the right of pardon are precisely party leaders who today guarantee the stability of the Government”, the truth is that most of the beneficiaries belong to Junts per Catalunya and PdeCat, parties which did not support the main decisions that the government of Pedro Sánchez adopted in this legislature. This is the case of Jordi Turull, Joaquim Forn, Josep Rull, Jordi Sànchez, Meritxell Borràs and Santi Vila, to which must be added the president of Òmnium Cultural, Jordi Cuixart, who does not belong to any formation. Five other convicted persons are active in the ERC, which supported the government budget: Oriol Junqueras, Raül Romeva, Dolors Bassa, Carme Forcadell and Carles Mundó.

Who will appeal and who will decide?

Government decrees will mention the mandatory but non-binding reports that the Prosecutor’s Office and the Supreme Court have presented and that in both cases reject pardons after having verified that the prisoners of the trial have not expressed their “regret” for the events that have occurred. in October 2017, a circumstance which, according to the law, does not constitute an essential condition for its concession but must only be “registered” if it has occurred.

Once the pardons have been approved by the government and published in the Official State Gazette (BOE) with the signature of King Felipe VI, the possibility will be open to appeal them to the Third Chamber of the Supreme Court, which was revoked in The In recent years, several pardons that do not comply with the law, such as that of the banker Alfredo Sáenz or that of an abused woman who did not respect the obligations of custody of her children. The most prominent case is that of a suicide bomber driver who was pardoned after being sentenced to 13 years in prison for causing an accident in Valencia in which a 25-year-old died. The Supreme Court ruled that this pardon had been “arbitrary” because of its lack of motivation.

In the case of persons convicted of the proceedings, the contentious-administrative chamber will first have to decide who is entitled to appeal for pardons. Most of the experts consulted by laSexta consider that the Public Prosecutor’s Office and Vox could do so because case law considers this possibility for anyone who has sued in the case where the beneficiaries of the pardon have been sentenced, but there are many doubts as to the legitimation of ‘other parties, associations or individuals who did not participate in the previous legal proceedings. This would be the case with the Popular Party (PP) and the Citizens, who have also expressed their intention to present a contentious-administrative appeal if the Government finally accepts the pardons.

to validate the grace, we must determine that it was not arbitrary “

“The first thing to analyze is the legitimization of the party, and then all the rest”, explains a source of the Supreme Court, who recalls that what the members of the third chamber will have to appreciate, it is “if the procedure and procedures have “established by law of pardon for the granting of this measure and whether it is” sufficiently motivated and justified “. In short, “to validate grace, it is necessary to determine that it was not arbitrary”.

Another crucial question will be whether the case is decided by a section of the Third Chamber or whether the case is referred to the plenary assembly, as happened in November 2018, when the initial decision on the payment of the mortgage tax which had been agreed by a section which gave reason to consumers was reviewed by all members of the House, who after two days of marathon meetings ended up voting in favor of the bank.

The Government’s “public utility” reasons

The law establishes three criteria to assess the motivation for a pardon: that there are reasons of justice, equity or convenience or public utility. The first two, explain judicial sources, “are justified when there is a conviction of the legislator of the need to relax the provisions of the Penal Code which have been applied to the case analyzed”. The government, in fact, proposed the reform to lower criminal rates of rebellion and sedition, but its approval in the Cortes would be slower than pardon and would require negotiation with parliamentary groups. The third way, that of “public utility”, is the one that could protect pardon before the Supreme Court, according to these sources.

And it is on this key that the Government’s efforts will be focused in the coming weeks to try to convince public opinion of the need to grant pardons, as Prime Minister Pedro Sánchez explained, who defended this week in Congress that “there is an hour of retribution and an hour of harmony.” In this sense, ex-President José Luis Rodríguez Zapatero added his efforts, comparing the rejection that provokes thanks with the one who in his day provoked the approval of same-sex marriage or the conversations to bring about the end of ETA. “Democracy must have the initiative. What do we want, to get back to 2017?”

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