The status that arises, in general terms, is whether the alleged criminal acts committed by Carles Puigdemont and other leaders of the procés can be pardoned, specifically with regard to the embezzlement of public funds. To do so, we have to attend to high school which is expressly included both in the Constitution and in Spanish law: the pardon. However, it is impracticable in the case under study, since these people, by fleeing, have prevented the holding of any trial and, therefore, there is no firm conviction.

Notwithstanding the foregoing, the scope of pardon for reasons of convenience or public utility is much broader than that of the pardon itself, being able to reach situations that have not yet been judged. And it is in said framework where the high school of the amnesty resides, which supposes a complete grace to all those subjects who have been involved in alleged crimes -of any nature-, and whether or not they have been judged. All this for the sake of pristine political needs: achievement of peace and national reconciliation. Extremes that are appreciated within what has been called, at the doctrinal and United Nations level, Transitional Justice.

Thus, the punishment of certain individuals for certain particular crimes is subordinated to the achievement of peace and political and institutional stability. Since the conclusion of the Rome Treaty of 1998, which constituted the Statute of the International Criminal Court, and the recognition of the principle of the responsibility to protect by the United Nations in 2001, the legitimacy of these principles has been questionable, to say the least. States have the obligation to prosecute and punish the so-called atrocious crimes: genocide, crimes against humanity, war crimes, international aggression, and cannot disregard these duties for reasons of domestic policy.

But it is indisputable that it was within this sphere that the Amnesty Law of 1977 was formulated, since it was for the sake of national reconciliation, of the reinstitutionalization of the political parties, when this amnesty -or general and abstract pardon- was granted to all those persons liable for criminal responsibility for certain crimes in a certain period of time -the Civil War and Franco's dictatorship-. Hence, the question should not be whether or not an amnesty law is formally appropriate, but whether substantively -that is, materially- such a law would be legitimate. This, in view of the specific circumstances in which it is requested. Within this framework, I understand that in no way such a law could sustain any legitimacy whatsoever. Let me explain. We are not dealing with the logic of atrocious crimes, nor of transitional justice. The status of the fugitives of the procés are manifestly incomparable with those generated, for example, during the Civil War or the subsequent Franco dictatorship.

To try to equate such disparate situations is, to say the least, absurd. It does not seem coherent to base a justification on the "needs of national reconciliation and public peace", when the same State, through the Prosecutor's Office of the Supreme Court, continues to promote Euro-orders to Brussels, for the purpose of the arrest and submission of these people for the crime of embezzlement. Regardless of the future Government, it would be seen as a profound bipolarity on the part of the Spanish State to be requesting from other EU states the arrest and submission of a person, and, at the same time, to support a general amnesty law project based on the needs of peace and national reconciliation with respect to the same people and for the same facts.

In the last legislature, not only was the crime of sedition -which constituted the main position hanging over these fugitives- repealed, but the modality of embezzlement by disloyal administration was reformed as regards its penalty, especially in this case where it is doubtful that a serious damage or hindrance to the service to which such money was consigned can be sustained. Hence, the penalty would be disqualification for employment or position public from one to three years and a fine of three to twelve months without prejudice to the subsidiary civil liability, for which the embezzled money should be refund . Therefore, ex ante, we would not be facing a disproportionate penalty that needs to be counteracted through a general and abstract pardon.

In any case, in these times, the legislator should not forget that the basis of any amnesty lies in its public utility, and nothing else. And public utility should not be confused with political-partisan plans or interests, nor with the political careers of private individuals. The latter, as Kant already warned, would be the most obscene of acts of the State, because it would be, in substance, nothing more than the perpetration of an unlawful act.