Understanding Pardons and the Vicarious System in Spain
Understanding Pardons in Spain
Pardon: Regulated by law of June 18, 1870, as amended by the Act of January 14, 1988. It represents a waiver of the *ius puniendi* by the state. It is a right of pardon and representative of executive interference in judicial functions (Delas).
Its purpose is to soften the penalty’s excessive rigor, both in general terms in the law itself (amnesty) and as a result of applying this general law to a specific case (pardon). Criminal records do not disappear, and it does not affect liability. Beneficiaries are those who have been convicted.
General pardons are prohibited by Article 62 of the Spanish Constitution.
Types of Pardons:
- Total pardon of the sentence
- Partial pardon of the sentence
The pardon of the principal penalty extends to accessory penalties.
Exception: Penalties of disqualification from public office and political rights will be particularly pardoned (Art. 6).
Initiative and Concession
The initiative can be taken by the prisoner, anyone on their behalf, the trial court, the prosecutor, or the government.
Concession: Upon deliberation of the Council of Ministers and proposals of the Minister of Justice, it is the exclusive power of the King by Royal Decree.
Assumptions:
Section 4.3 of the law.
Article 4 Classes: Total or partial. A full pardon is the remission of all penalties that had been imposed and had not yet been complied with by the offender.
Article 2: No Pardon Law:
- For criminal proceedings that have not yet resulted in a final conviction.
- For those who were available to the sentencing court for the enforcement of the sentence.
- For repeat offenders of the same or any offense for which they had been convicted by a final sentence.
Exceptions: Cases where, in the opinion of the sentencing court, there are sufficient reasons of justice, equity, or public convenience to grant them grace.
The Vicarious System in Spanish Criminal Law
Vicarious System (Article 99 of the Criminal Code): Only applicable to those with diminished responsibility.
It does not eliminate responsibility but attenuates it by one or two degrees. It is an INCOMPLETE defense.
It is applied jointly with grief and security measures (MS). If the penalty is reduced by one or two degrees, it is done in conjunction with the MS.
Article 99 of the Criminal Code states: “In the event of multiple penalties and custodial measures, the judge or court shall order the implementation of the measure, to be served before the penalty. Once the security measure has been served, the judge or court may, if the execution of the sentence is endangering the impact achieved through those measures, stay the enforceability of the remainder of the sentence for a term not exceeding its duration, or apply any of the measures provided for in Article 96.3 (disqualification, expulsion of foreign nationals, required residence, prohibition of approach…) and 105.”
Non-Custodial Measures (Article 96.3)
The non-custodial measures covered in Article 96.3 are:
- Professional Disqualification
- Expulsion of foreign nationals legally residing in Spain
- Obligation to reside in a specific place
- Prohibition from staying in a designated place or territory. The individual is obliged to declare their chosen home and any changes that occur.
- Prohibition from going to certain places or territories, sporting or cultural events, or visiting establishments that serve alcohol or offer gambling.
- Family custody. The subject of this measure is subject to the care and supervision of their family, who must accept the appointment as custodian. The family shall exercise custody in relation to the prison security court and without prejudice to the educational or work activities of the guarded individual.
- Deprivation of the right to drive motor vehicles and motorcycles.
- Deprivation of the right to possess and carry weapons.
- Prohibition from approaching the victim, or their relatives or other persons identified by the judge or court.
- Prohibition from communicating with the victim, or their relatives or other persons identified by the judge or court.
- Submission to outpatient treatment at medical centers or socio-health facilities.
- Submission to training programs, including cultural, educational, professional, and sex education programs.