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Juan Carlos Orenes, PhD in Law and Adjunct Professor of the University of Navarra.
Pardons without control
The author argues that when a judge issues a conviction, it is not easy to assimilate that the government can discretionally grant a pardon extinguishing or reducing the sentence imposed.
It is frequent that the granting of certain pardons reaches a great repercussion in the media, generating surprise, disbelief and indignation in the public opinion. On these occasions, beyond the particularities of each case, discussion is opened on its current configuration in the legal system.
The pardon is a manifestation of the exercise of the right of grace by which the sentence imposed is eliminated or reduced, it is regulated by a law of 1870 that justifies its existence to avoid "the always regrettable consequences of the inflexibility of the enforceable sentences, which for a thousand different reasons should be softened in certain and specific cases, so that equity, which is inspired by prudence, never clashes with the characteristic rigor of justice". The nineteenth-century legislator himself was aware of the dangers of the improper use of the power of grace, precisely, the law was enacted with the aim of avoiding the evils that could arise from an exaggerated and thoughtless use, so he warned of the need to put strong obstacles to the concession.
In an interesting study on the subject, the jurist Requejo Pagés has shown how the issue of the right of grace was very present in the deliberations that culminated in the approval of the Constitutions of 1812, 1869 and 1931, which contrasts significantly with the current Constitution of 1978 in which the discussion on this issue practically did not exist. In the 1931 Constitution, the granting of pardons was almost completely judicialized, placing them in the hands of the Supreme Court; at present it is a prerogative of the Government, which does not seem to be well suited to the principle of separation of powers. This principle requires that the Cortes Generales be the ones who, by means of an Organic Law, approve the criminal laws which typify and punish those conducts which are considered worthy of greater social reproach, and that the judges be the ones in charge of applying them, judging and enforcing what has been judged. Therefore, when, after a trial subject to all guarantees class , a judge issues a conviction, it is not easy to assimilate that the Government can discretionally grant a pardon extinguishing or reducing the sentence imposed, especially when the current legal framework allows that the concession is not made in a reasoned manner and that it is not subject to control, beyond the formal aspects of its processing.
The reflections on pardon made by the Supreme Court in a decision issued last October are very significant, considering it to be a legacy of Abj
solutism that does not fit easily into the constitutional order, which must be presided over by the imperative of subjection to the law of all powers, both in the procedural and substantial order of their acts. The Court warns of the danger that convictions may be rendered futile for no good reason. It should not, therefore, be postponed any longer discussion in depth on the right of pardon, and if it is advisable to maintain the institution of pardon, its concession must be surrounded by the necessary precautions, guaranteeing that they are granted in an exceptional and motivated manner and that, ultimately, they are subject to jurisdictional control beyond the purely procedural aspects. The pardon must always respond to reasons of ¿justice, equity or public utility". The pardons sometimes enjoyed by politicians linked to corruption cases, high-ranking officials, bankers or businessmen close to power suggest other less confessable motives and allow us to understand why the major parties show no interest in modifying an instrument that, in the end, can be used for their own benefit.