In the first place, the Constitutional Court has already told us (STC 147/1986, of November 25) that amnesty is an “exceptional operation”, that is, something that fits in our system if extraordinary circumstances concur. Therefore, it would be necessary to know the terms of this possible amnesty law in order to know on what exceptionality the legislator bases its approval, where its constitutional basis lies and how it justifies the non-application to specific facts of valid and democratically approved norms in such a way that this “amnesia of the order” does not undermine rights and goods protected by the Spanish Constitution (EC).
To focus on the “amnesty you are thinking about”, if we intend to legally forget, because they are linked to the “procés”, facts that, to cite an example, could be constitutive of the crime of public disorder, we would have to be very fine-tuned to find the “amnesty” that you are thinking about, it would be necessary to be very careful to find a reasonable basis to justify that they are not tried or sentenced for them and that those who participated in similar disorders in the context of an eviction or a labor dispute at a time of severe economic crisis and growing social vulnerability are tried and, if necessary, sentenced. Why would it be unfair to convict for the former and not for the latter?
If the legislature, faced with similar situations, establishes a clearly differentiated treatment, it acts arbitrarily and discriminates, since “discrimination always entails arbitrariness, or, even if it does not establish it, it lacks any justification, which would also entail arbitrariness, without a thorough analysis of all the possible motivations of the rule and all its possible consequences” (STC 196/2011, of December 13).
Such discrimination would not occur if specific persons convicted of the aforementioned acts were to benefit from a pardon, an institution with an express constitutional basis, although its legal development leaves much to be desired precisely because it does not require a statement of reasons.
Additionally, a hypothetical amnesty law that prevents the prosecution of acts that rationally fit into criminal offenses such as, for example, public disorder, would affect the “exercise of jurisdictional power in all types of proceedings, judging and enforcing what has been judged, [which] corresponds exclusively to the Courts and Tribunals determined by law, according to the rules of competence and procedure established therein” (Article 117. 3 EC), without forgetting that “it is obligatory to comply with judgments and other final decisions of the Judges and Courts” (Article 118 EC).
Here again, the exception to the exclusive judicial execution of what has been judged and compliance with final sentences lies in the aforementioned constitutional recognition of singular pardons (article 62.i) or, as the case may be, in the approval of a derogation or legislative modification favorable to the convicted person by virtue of the principle of the most favorable retroactivity, also included in the EC (article 9).