One of the surprises of the sentence which Spanish justice handed down for Laura Borràs, communicated this Thursday by the Catalan High Court (TSJC), is that it requests a partial pardon for the suspended speaker of the Catalan Parliament in order to prevent her from entering prison. Why do courts ask for pardons? These are exceptional cases and the answer is that the judges consider that, when there is a conflict between the law that is in force - that is, the penalties that the Spanish Penal Code states have to be imposed for certain criminal actions - and the principle of equity, the pardon provides a way out. In the case of the Catalan politician, who is party president of Junts as well as suspended speaker of the chamber, the TSJC imposed 4 years and six months in prison for the continued crime of falsification in an official document when she was director of a public cultural organ, the Institute of Catalan Letters (ILC), because, working with IT expert Isaías Herrero, the pair agreed to submit false budget quotes (the administration requested three, although this was not mandatory until 2019) so that the updating of the ILC website was always awarded to Herrero.
The court presided over by the TSJC president, Jesús María Barrientos, maintains that the penalty imposed by the law is "excessive" and that the defendant's entry into prison is "not necessary" to avoid further crimes from being committed. For this reason, Barrientos, together with the judge Fernando Lacaba, agreed to submit to the Spanish cabinet the proposal that Borràs be pardoned and her sentence be reduced to no more than 2 years in prison, a situation that would free her from entering a penal institution because she does not have a criminal record. With or without pardon, Laura Borràs has insisted on her innocence and has denounced that the sentence "is execrable".
First, a final judgment
Article 4.3 of the Penal Code enables judges to request a pardon "when the penalty is excessively notable, taking into account the harm caused by the offence and the personal circumstances of the offender". The first requirement to grant a pardon to such a person is that the sentence must be final. In the case of Laura Borràs, her defence lawyer, Gonzalo Boye, as well as the public prosecutor, have 5 working days to present a cassation appeal to the Supreme Court. With the Easter holidays around the corner, this period will end on Tuesday 11th April, with an additional day of grace after that.
In these appeals, the Supreme Court can take a year to review the decision. One difficulty in this case is that the Spanish general elections are due at the end of 2023 and could unseat the governing PSOE. However, the Spanish government has already announced that it will follow the normal legal procedures in the case of the pardon for Borràs. In certain cases, however, the highest Spanish court hastens to confirm or review the case, as happened in the conviction of Catalan president Quim Torra for disobedience against the Electoral Commission for not removing a banner of support for political prisoners, which caused his expulsion as an MP in the Catalan chamber and his removal from his position leading the Catalan executive.
The Catalan political prisoners: differences
According to a study, of the 6,818 pardons granted in Spain between 2000 and 2017, about 898 were asked for by the courts (13.17%). There are, however, other cases of pardons for convicted prisoners that the courts consider to be attack on judicial independence by the Spanish government. The most recent and paradigmatic case is that of the nine pro-independence political prisoners, where the Supreme Court and the public prosecutors expressed in reports that they were not in favour of pardoning the long prison sentences awarded for the crime of sedition, which allowed them to leave prison in the summer of 2021. The prosecutors maintained that the Catalan independence political and civil leaders in that case had not expressed repent for their actions, although this is not a necessary requirement for the pardons, as lawyers note. Another recent case, in 2021, is that the Supreme Court and the public prosecutors agreed to support a partial pardon to a public official in the Gürtel corruption case so that the penalty of a ban on office holding would not prevent the person from working in the civil service.
In the case of Laura Borràs, the TSJC affirms that, as a result of the continued crimes of document falsification of which the court found her guilty, the Penal Code "obliges us" - the court maintains - to "impose a penalty that cannot be less than 4 years, six months and 1 day (minimum of the upper half of the penalty range for the crime, as a result of the the crime being one that had continuity"). It adds, however, that this "is disproportionate and excessive due to her behaviour". It states that Borràs's conduct, relvant to the crime, was to allow the presentation of false budget quotes, "without any personal profit motive".
In addition, the court specifies that Borràs cannot be covered by article 80 of the Penal Code, which allows a person to avoid prison if the penalties imposed separately do not add up to 2 years in prison each. In the case of Borràs, there is only one crime for which prison is imposed, that of document falsification, since the crime of abuse of authority only involves a ban from working at public expense. For all this, it asks for the "measure of grace" from the Spanish cabinet to pardon her and avoid her entry into prison.
Could the court have reduced the penalty?
But could the court, presided over by Jesús Maria Barrientos, have agreed to another action to avoid prison for Laura Borràs? According to judge María Jésus Manzano - who was the third member of the court, along with Barrientos and Fernando Lacaba - the answer is yes. In her minority vote, judge Manzano states that she does not consider that making false budget quotes and presenting them to an administration, such as the Institute of Catalan Letters, is a continuous crime of document falsification. She specifies that if it is a falsehood, it should only be counted once, not in all 18 contracts, and in any case it would be a commercial falsehood, with a penalty that should range between 21 months and 3 years in prison.
Judge Manzano adds that undue delays in hearing the case should be factored in for the three defendants, since the first suspicion of splitting contracts was in 2017, following a telephone conversation between Isaías Herrero and a third party, and on November 23rd, 2018, his apartment and computer were searched, and the terms "Borràs" and "ILC" were searched, which led to the case being opened. She claims that more than five years have passed and the mitigating factor "would compensate for any aggravating factors that may have occurred".
The complex proposal of a Spanish government pardon for Laura Borràs is the one that has prospered, in the end, at the High Court of Justice of Catalonia.
In the main photo, the TSJC president, judge Jesús María Barrientos, with the senior public prosecutor of Catalonia, Francisco Bañeres, at an event. / Photo: Efe