Government as judge and jury

Drug trafficking, violent robbery, injuries resulting in permanent disfigurement, embezzlement, abuse of authority, murder, sexual abuse, torture, pimping, and a long list of etceteras. Just about every offense imaginable is pardoned by the government every year. Over the course of 2012, the administration of Prime Minister Mariano Rajoy has issued 468 pardons, a similar figure to that of previous governments.

The law that allows the government to issue pardons dates back to 1870, and allows it to do so without having to give any account or explanation. Only a handful of ministers and senior civil servants are privy to the circumstances as to why some people are let off and others not, and there is no appeal, nor procedure that lets the electorate in on the secret.

Of the pardons issued this year, 44 were approved by the Justice Ministry, and 34 by the Ministry of Defense, the latter related to desertion. Far and away the largest number of pardons were related to drug trafficking: 193, or 41 percent. These were followed by robbery, 59; embezzlement and fraud, 56; injury, 42; failing to obey a police officer, 24; theft, 11; abuse of authority, 9; environmental offenses, 9; and involuntary manslaughter, 7.

The largest number of pardons were related to drug trafficking

These are simply the numbers. A more meaningful assessment of the type of offense that is most frequently pardoned means comparing the figure with the number of people convicted for each crime. For example, there are six pardons for abuse of authority, but in 2011, only 33 people were jailed for this offense. The percentage of pardons seems high, but the figures cannot be properly contrasted, because the cases were tried in previous years. Then there are the cases involving figures in authority. The most recent case is the pardon given to four police officers in Catalonia who had been convicted of torture. Some 200 judges have now signed an open letter accusing the government of undermining their authority, calling the pardon "abusive" and "ethically inadmissible." Barcelona's main court had ruled against pardoning the officers, but was overruled by the Justice Ministry in Madrid.

The letter has been signed by two Supreme Court judges, as well as by Margarita Robles, a former under-secretary of state at the Justice Ministry, and now a member of the General Council of the Judiciary, the body that oversees the Spanish legal system. Gaspar Llamazares, a member of Congress for the United Left coalition, describes the government's decision as "a kind of parallel justice, based on privileges. A hangover from the past, when there was a two-tier system of justice: one for the government's friends, who are not required to obey the law; and another for the rest of us, who are subject to the rule of the courts. Pardons need to be gotten rid of, or at worst, applied only in very special cases, with the reasons clearly explained, and they should be subject to independent control." The Criminal Policy Research Group, made up of more than 180 members of the legal profession, also questions the existence of legislation it describes as "dating back to before the liberal revolution, and closely tied to the right of the monarch to grant an amnesty," in a democracy based on the strict separation of powers. They suggest that pardons should be subject to public scrutiny.

Judges have accused the government of undermining their authority

In theory, the government cannot question the veracity of events proved in court, and much less the sentence handed down. It can only reduce the sentence. But in reality, what happens in most cases is that it questions the evidence, in effect converting itself into a quasi-court able to overrule a judge's decision, and without having to explain its decision.

In the case of the four police officers in Catalonia, the crime of which they have been found guilty, torture, is so serious that it would not normally be eligible for a pardon. Responding to the public outcry, the Justice Ministry explained its decision by saying there were doubts about the guilt of the officers, and because the request for a pardon had been backed by the victim. In this case, it is clear the government is acting as an appeals court, overruling the legal system.

Spain has one of the least-open governments in the developed world. Successive administrations, Socialist and conservative, have repeatedly resisted opening up public records and denied journalists and the public access to even the most basic information. Earlier this year, the government passed legislation that was supposed to allow for greater transparency, but it fell far short of the kind of freedom of information act that exists in the United States. There are no figures available to the public about who is pardoned, or why. EL PAÍS had to search through the Official State Bulletin (BOE) to find every one of the 468 pardons issued by the government this year. The BOE only mentions the name of the person being pardoned, the court that tried them, the sentence and their crime. There is no explanation as to why they were let off.

There are different types of pardon. The most common relates to serious crimes laid out in the criminal code, such as drug trafficking or theft. In such cases, pardons are granted because judges' hands are often tied, and they are obliged to hand down stiff sentences to people who may never have committed an offense before. Most of these relate to drug trafficking, whereby the government reduces the minimum sentence of three years to two years, thus allowing offenders with no previous record to avoid prison, although they will likely have been held for up to two years before their case goes to trial. In effect, they have already served their sentence. If successive Spanish governments believe the sentences the country's courts are handing down for drug trafficking are unduly harsh - on average they have granted around 150 a year since the mid-1990s - might it not make more sense simply to change the law? The Justice Ministry says almost all pardons are applied to similar cases: young people who committed their offense several years before, and are now leading normal lives. It says there are no plans to change the law any time soon. Pardons apply to judicial decisions that were the right ones at the time they were applied, but that circumstances have made them redundant, it states. There are also cases involving petitions for a pardon immediately after sentencing, on the grounds the sentence is disproportionate. Changes to the criminal code in 2010 allow a judge to reduce a sentence. We will have to wait to see if this reduces the number of pardons the government grants.

One aspect relating to the pardons handed down in 2012 stands out: a government that has clearly issued police with instructions to be heavy handed during demonstrations has significantly increased the number of pardons for resisting arrest or failing to obey a police officer. This year it has pardoned 24 people, compared to four last year, and 12 in 2010.

There are other crimes that stand out: murder, or inflicting serious injury resulting in the loss of an organ. The Justice Ministry says that in the case of lengthy sentences, such pardons are granted to people already in prison, allowing them to apply for early-release programs based on good behavior, and only at the recommendation of prison authorities. In 2012, two pardons were granted by the outgoing government of José Luis Rodríguez Zapatero involving a case of sexual abuse and one of pimping.

More contentious are those relating to politicians, police officers, members of the business community and figures in authority, of which there are around 20 pardons a year. Again, no explanations are given. In the case of the four police officers from Catalonia, the government merely limits itself to saying that it is acting within the law.

In 1812, the authors of Spain's first Constitution addressed the question of pardons, and how best to limit the powers of the monarch in a fast-changing world. The solution was to make a clear distinction between the different powers of the executive. Nevertheless, the monarch, as head of state, retained the right to grant pardons based on the perceived need to temper a criminal code that still retained vestiges of what one of the authors described as "gothic barbarism," as well as the fact that there was no universal suffrage and that the populace were not citizens, but subjects. Two centuries later the government now has the monopoly on pardons, but the principle remains the same: it can do so entirely at its own discretion.