Ejercicio de la potestad de la gracia y postulados del estado de derecho

Resum

Taking as a reference the presentation of the Organic Law Proposal on amnesty for institutional, political and social normalization in Catalonia, the author addresses some of the issues surrounding the scope of the power of mercy (in its manifestations of pardon and amnesty). and its eventual (in-)compatibility with axiological and constitutional postulates on which the rule of law is supported (equality, separation of powers, justice, proportionality, etc.) as well as with the preventive function of criminal law. The difficulty (or impossibility) of predetermining the limiting and legitimizing causes or assumptions of a concession of clemency (particularly in amnesty), requires a special argumentative effort to articulate rational and objective criteria based on the accreditation of a factual and evaluative situation of a extraordinary and presumably unrepeatable gravity in the same historical setting (the existence of “convulsive times”). The corrective perspective of the dysfunctions and insufficiencies inherent to any regulatory system and the goal of achieving material justice in the specific case, within the framework of a democratic State, must be carried out preferably through the ordinary mechanisms provided for in the legal system, reserving grace a subsidiary position and, in any case, without attributing to it a political-criminal decriminalizing mission.