On 30 May 2024, despite its rejection by the upper chamber, the lower chamber of the Spanish Parliament passed the Amnesty Act 2024 ‘for the institutional, political and social normalisation in Catalonia’ by absolute majority, with 177 votes in favour and 172 votes against.

In 2023, a controversial legislative proposal was agreed between the Spanish Government and the main Catalan pro-secession parties which grants amnesty for those actions that may incur criminal, administrative or accounting liability carried out in the context of the votes held in Catalonia on 9 November 2014 and on 1 October 2017, including their preparations and their consequences. In essence, acts linked to the ‘Catalan Process’, such as those of promotion and achievement of independence, as well as those of resistance and public disorder related to this process.

Like most legal orders, Spanish Law distinguishes between pardons (indultos) and amnesties (amnistías). Pardons are non-legislative acts issued by the Executive that affect specific individuals, whereas amnesties are legislative acts themselves passed by the Legislature that potentially apply to all persons. The Spanish Constitution remains silent on amnesties, although it does forbid ‘general pardons’ (indultos generales). Should this prohibition be understood as extending to amnesties? Besides limiting the powers of the Executive more than those of Parliament, this prohibition also pushes for amnesty statutes to express themselves in a general, abstract and impersonal manner in order to comply with the separation of powers and the rule of law, which demand respect for independent and impartial courts, and granting them the power to decide on whether individual cases are eligible for amnesty.

Ordinary amendments or repeals of criminal offences have a general, future application. By contrast, amnesties apply only retrospectively and to persons under certain circumstances in extraordinary contexts. As amnesty laws exempt from prosecution and punishment, the principle of equality demands justifying amnesties properly. This principle, as well as the rule of law, requires treating like cases alike. However, exceptional circumstances may justify exceptional responses.

Whether or not an amnesty is constitutionally justified may depend on different ways of reasoning. Arguably, a first question could require a more political and philosophical perspective while a successive question a more legal and technical analysis:

1. Does the Amnesty Act pursue legitimate purposes considering the relevant facts and circumstances as well as the relevant legal rules and principles? We may call this the question of reasonable ends.
2. If the previous question is answered affirmatively, the subsequent question could be the following: is this law drafted coherently, adequately and proportionally taking into consideration both the legitimate purposes of the amnesty and the relevant legal provisions? We may call this the question of acceptable means.

Typical legitimate purposes of amnesty laws may be divided into more deontological ends (such as rectifying past wrongs and compensating the victims of a harsh conflict) and more utilitarian ones (such as smoothing processes of self-determination and democratisation, as well as facilitating reconciliation).

Reconciliation seems the aim of the ‘Agenda del Reencuentro’, an ongoing plan of the Spanish Government intending to set the basis for a project for unity, to recover affections and share a future in common that can only be based on dialogue and mutual trust. Beyond favouring political dialogue between the Spanish and Catalan governments, the Agenda also includes the target of ‘avoiding the judicialisation of politics’.

As part of this agenda, amnesty and its will for appeasement, reconciliation and dialogue between Spain and Catalonia seem not the product of laudable principles or a clear electoral mandate, but that of PM Sánchez and his left-wing coalition government needing parliamentary support from the Catalan pro-secession parties to remain in power. Moreover, it may look like a self-amnesty since it was promoted by secessionist parties to protect their members and voters. Despite all this, a legitimate purpose may still exist from a legal perspective.

Reconciliation of political and national pluralism was a key purpose of the 1978 Spanish Constitution, and this was pursued through a dialogue that resulted in a broad compromise. This purpose may be regarded in line with the Amnesty Act 2024. In fact, the most important precedent of this statute is the Amnesty Act 1977, which was passed while the Spanish Constitution was being drafted by its seven founding fathers.

Spanish acts of mercy do not challenge the unity of the Spanish State and the sovereignty of the Spanish People (enshrined in Articles 1 and 2 of the Constitution). In fact, clemency and magnanimity by the Spanish leading forces may strengthen rather than weaken Spanish unity and sovereignty, as indicated by the results of the Catalan elections of 12 May 2024.

As amnesties may embolden their beneficiaries to commit further crimes, the United Nations has opposed amnesties for gross violations of human rights, including in the context of peace negotiations. Despite the initial intention of excluding such crimes from the amnesty of 2024, exclusions were narrowed following the widely criticised prosecution of secessionist leaders on terrorism charges. Perhaps a case could be made in favour of distinguishing amnesties for systematic violations of human rights, which are often orchestrated, encouraged or tolerated by the deep state, from other amnesties to make up for the opponents and victims of the state.

Read more:

• Catalonia: Human Rights Violations in the Imprisonment and Conviction of the Pro-Independence Political Leaders
• The dark side of amnesty laws: impunity guaranteed. The case of Nicaragua
• Catalonia: The Right to Secede and the Right to Self-Determination
• Reconciliation and the Northern Ireland Legacy Act: A Human Rights Perspective