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Only in a tiny number of instances has Spain's Supreme Court stepped into the political path of criminal pardons - where, in general, the elected government has the last word - to revoke a clemency measure after it had been granted by the executive. But it can happen.

Today, as the Supreme Court has made public its argument that the 12 convicted Catalan independence process leaders should not be pardoned, other voices opposed to a hypothetical action from the Spanish government are also getting louder - and discussing whether such an action by the executive could be stopped.

In fact, the pardon cannot be total. The negative reports from the Supreme Court and the public prosecutors prevent this from being the case and, therefore, the pardons will have to be partial. And more so, given that the political prisoners have served a considerable part of their sentences.

After today's Supreme Court report, it is now the Spanish justice minister who has to make a report for each of those convicted in the 2019 trial. The reports have to be individualized and must refute the arguments of the Supreme Court, as they may themselves face an appeal.

An appeal that, if presented, would only affect aspects of form that can be easily amended. And that could not be presented by the Popular Party, for example, even though it is already making noises about the possibility. In fact, neither the PP nor any other political party are participant parties in the pardon process.

In recent Spanish history there have been pardons in cases of corruption, torture, kidnapping and even crimes of violence in which there have been deaths. And they have, in the end, become effective. That is why it would not be understood now if the pardons of those convicted in the Catalan independence trial were revoked by the court. That pardons of some kind will be granted seems almost certain given the statements made by representatives of the Spanish executive, including prime minister Pedro Sánchez himself.

The precedents

But there are a handful of precedents for pardons that the court revoked: the most prominent case, that of a banker; and three others - for a kamikaze driver who caused the death of a man; a director of the football club UD Las Palmas; and an abused woman who failed to meet the custody terms for her children.

The administrative disputes chamber of the Supreme Court is responsible for appeals against decisions of the Spanish cabinet, including pardons, although there have not been many occasions in which the judges have resolved favourably to the appellants in cases of clemency.

The decision with the most political significance was the one adopted by this chamber of the Supreme Court in February 2013, when it annulled a part of the pardon granted by the government of José Luis Rodríguez-Zapatero to the CEO of Banco Santander, Alfredo Sáenz. The banker had been sentenced to three months of arrest and disqualification from his office for falsely denouncing a group of businesspeople and the pardon also affected the cancellation of his criminal record, which allowed him to continue working as a bank manager.

In this case, the court established in its ruling that the Socialist government had overstepped the rules by procuring that the sentence imposed on Sáenz for a crime of malice would not affect him when the banking regulations were applied, which as it stood, disqualified him from being a banker.

These banking norms required him to be legally held in "good repute", a status essential to continue working as a bank manager, and thus he was required to have no criminal record to do his job. The pardon was appealed by several businesspeople whom Sáenz falsely accused of fraud during his time at Banesto. Thus, the Supreme Court's decision only affected one paragraph of the pardon, the section relating to the effect of the clemency measure in the banking regulations that disqualified the banker.

Pardons granted despite Supreme Court opposition

Only six of the 137 pardons granted by the Spanish government in the last five years - 4.37% - were approved with a contrary report from the sentencing court and prosecutors, whose opinions are not binding but are taken into account in the immense majority of cases. In the case of those convicted in the Catalan independence leaders' trial, public prosecutors announced their opposition to a hypothetical pardon in December, and this Wednesday the Supreme Court also issued its report opposing the measure, considering that the sentences were proportionate to the seriousness of the crime, and underlining the lack of remorse shown by the independence leaders.

The granting of pardons, based on a law dating from 1870, is a discretionary power which the Spanish government holds, and which it is not obliged to explain or justify. The decrees published in the official state gazette only reveal the name of the pardoned person, the court that convicted him and the crimes, guaranteeing, without further detail, that "reasons of justice and equity" apply.

In reports that the Spanish justice ministry presents to Congress every six months, very little more information is revealed: the percentage of pardons granted and denied is listed, and whether the recommendations of the sentencing court, prosecutors and victim, if any, were followed. The trend in recent years is to reject the vast majority of pardon requests that are presented. In the last semester of 2020, for example, 18 were granted, 1.08% of those requested.

According to six-monthly balance sheets, between 2016 and 2020, the Spanish government granted 137 pardons and 95 of these (69.4%) were seen favourably in the reports from the sentencing court and the prosecutors. In 33 of the pardons granted, the sentencing court supported the clemency measure and the prosecutors opposed it; and in three of them the court said no and the prosecution service supported the measure.

The last two pardons to be granted with both reports, from court and prosecutors, opposed, were granted in the first half of 2019. Several MPs in Congress's justice committee inquired about them and justice undersecretary Miguel Bueno limited himself to recalling that the reports are not binding for the government. "If the criteria of an unfavourable report had to be followed, the decision would not be, as the law says, in the hands of the cabinet, but rather, of those who issued the report," he said. "The current legislation does not recognize the binding nature of these reports, despite the fact that, as you can see in the data, the very general line is that their criteria are followed - because here resides a good part of the motivation on many occasions - but, as I say, they are not binding reports," he stated.