Invalidity of Pardon Granted to Driver in Reckless Homicide Case

The SC, in a judgment of 17 March 2014, partially upheld the appeal lodged by the appellant against Royal Decree number 1632/2012, of 30 November, in which a partial pardon was granted to a driver who had been convicted of an offence against traffic safety in conjunction with three offences of reckless homicide to a sentence of 3 years and three months imprisonment and deprivation of the right to drive motor vehicles and mopeds for 6 years, which is annulled, ordering the reinstatement of the proceedings so that the report provided for in art. 23 of the Law on pardon by the PA, dismissing the appeal on the other points requested.

According to the High Criminal Court, it is necessary to determine, prior to other considerations, whether a ground for annulment has been incurred in the processing of the pardon, by considering that the report provided for in art. 23 of the Pardon Law of 1870 to be issued by the "Sentencing Court" has been drawn up by an incompetent judicial body.

And so the Court considers that, in this case, it is the Granada Provincial Court which, by upholding the appeal and raising the sentence imposed on the convicted person, must be considered as the "sentencing court" for the purposes of issuing the report in question and, consequently, it must be concluded that the Criminal Court lacks jurisdiction to issue the aforementioned report.

The Court adds that it is true that this irregularity is not attributable to the actions of the Ministry of Justice, since the latter addressed the President of the PA to issue the mandatory report and that this body, in a logical sequence of events, forwarded the official letter to the Criminal Court, which finally issued it. However, this does not alter the relevance of the irregularity detected because, whatever the reason for the irregularity, the fact is that it affects a regulated element of the procedure which could have influenced the decision adopted, not only because it is a mandatory report, although not binding, which must be part of the procedure, but also because the partial commutation of the sentence for another of lesser severity, requires, as stipulated in art. 12 of this regulation, that "there is sufficient merit for it, in the opinion of the sentencing court or the Council of State, and the convicted person also agrees to the commutation".

In this way, the report is of particular importance in shaping the will of the person called upon to grant or deny the requested right of pardon, providing data and containing evaluations that attempt to guarantee the correctness of the decision adopted, especially in a case such as the one in question, in which the partial pardon granted condones that part of the sentence that was aggravated by the intervention of the appeal court.

In the opinion of the Court, this determines the existence of a ground for annulment of the proceedings, due to the absence of a mandatory report that may be relevant to the decision on whether or not to grant the right to pardon and the scope of the pardon, which determines the nullity of the contested RD in order to remedy the defect noted, which requires ordering the proceedings to be taken back so that the report provided for in art. 23 of the Pardon Act can be issued by the Granada Provincial Court, with the content provided for in art. 25 of the 1870 Act.

Source. El Derecho