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Excessive indulgence

In quashing a pardon, the Supreme Court has warned the government not to abuse its power

After three days of deliberations, which offers an idea of the importance attached to this ruling, the Supreme Court decided by 19 votes to 17 to quash the pardon granted by the government in 2012 to a so-called "kamikaze" driver who had been sentenced to 13 years in prison for killing a 25-year-old man after traveling five kilometers on the wrong side of a highway. While we have yet to see the juridical details of the ruling, the decision weighs heavily into an issue which has caused great discontent of late: the abuse by governments of their legal prerogative to grant pardons.

Apart from the large number of supposedly "exceptional" pardons granted — more than 400 each year — the list includes many dubious cases. Among the most controversial have been the pardons granted to the military officers convicted for their part in the Yak-42 plane crash, to officials from the Popular Party and Unió Democrática accused of corruption, and the double pardon to four members of the Mossos d'Esquadra Catalan police force who had been found guilty of torture. But these are by no means the only questionable instances in which, as in the case of the kamikaze driver, the government would seem to have gone beyond what is acceptable for a supposedly disinterested arbiter.

As 200 judges joined together to point out after the Mossos officers were pardoned for a second time, the Cabinet's decision constituted a de facto overruling of the Barcelona court which had decided that, despite the government-imposed sentence reduction from four years and six months to two years, the agents still had to go to prison. (It is habitual for Spanish courts to suspend jail sentences which do not exceed two years for first-time offenders.)

Many magistrates believe that the government has crossed the boundary in its use of this discretionary power into the realm of arbitrariness, something which is expressly prohibited in Article 9 of the Constitution. It is also true that the law does not demand that the government provide explanations for its decisions to grant pardons, but neither is it barred from doing so. The fact that the executive does not choose to justify itself constitutes a certain lack of respect for the work of the judiciary and the authority of the country's courts.

The pardon for the kamikaze driver from the Valencia region was not the only time such clemency had been granted to someone for dangerous driving, but it was the most controversial. Both the family of the victim and road-safety associations considered the decision to be not only unjust, but also a dangerous contribution to the sense of impunity surrounding crimes committed at the steering wheel. The misuse that has been made up to now of the executive pardon means that a new law is required to set limits on the government in this area and force it to explain its decisions. It is a clear imbalance that reports by the prosecution and the sentencing court have to be justified, and the government's decisions do not.

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