Amnesty for politically motivated infractions
Principle of equality
General application of the law
RULING Nº 444/97
25 of June of 1997
The legal notion of amnesty consistently raises two problems:
1. Is it a legislative act generating standards forming an integral part of the system of the rule of law and, as such, subject to the jurisdiction of the Constitutional Court?
2. Should the question of the constitutionality of the purposes of an amnesty be examined in relation to the State's aims as a whole or solely in relation to the specific aims of criminal policy?
The theories of exemption and of just cause properly linked amnesty with theories of law and the rule of law by defining the many forms of pardon such as self-correction of the judicial system (Selbstkorrektur der Gerechtigkeit in Jehring's famous phrase) and by explaining how exemption from the law may serve the purposes of the rule of law. If a just cause does exist, then any amnesty may be given general effect; therefore the scope of the law of amnesty is general not only in the sense that it defines the relevant facts by means of generic categories but also in the sense that, where there is a just cause, the amnesty has a general nature (and therefore is a substantive law) because by the same token it is a rational proposition and hence capable of being given general effect.
The argument that the law of amnesty (whose constitutionality, in terms of reasons and rationale must be weighed against the principle of equality) presupposes an exemption from legal sanction is compatible with the «autonomy» of the power to «grant amnesties and general pardons» in relation to the power to «legislate on all matters» (according to the terms of the Portuguese Constitution). Moreover, even though the principle of equality is applicable to the law of amnesty, such an application is nevertheless compatible with the inevitable inequality of always judging the facts in terms of the legal sanction (which is general and, in theory, the subject of the amnesty).
The terms of an amnesty automatically suspend the application of a provision of the criminal law in relation to part of the facts provided for in the criminal norm. The extent of this part depends, above all, upon the fact that the amnesty is temporary and is related to its original circumstances. Nevertheless, this does not mean that all circumstances are temporary. Only some have to be temporary, in order to avoid unequal treatment between facts preceding and subsequent to the amnesty.
Further, it is necessary to indicate the grounds for granting amnesty - explaining the advisability of the legal act of pardon as a whole - as well as the grounds for each provision contained in the act of pardon. Substantive unconstitutionality could affect only each individual provision of the law of amnesty (even though the question of unconstitutionality may be derived from the whole body of circumstances specific to the pardoned acts).
In this case, the Constitutional Court was required to rule on the decision of a criminal court, which had refused the application of Act no. 9/96 of 2 March on the grounds of unconstitutionality. This Act had pardoned politically motivated offences committed between 27 July 1976 and 21 June 1991 and had been approved by a majority of deputies in the Assembly of the Republic in the exercise of its power to «grant amnesties» embodied in Article 164, as part of its «political and legislative powers».
The Act on amnesty had been initiated (in the form of a bill) by the Government re-echoing, inter alia, the President of the Republic's address to the Assembly on this matter in which he had emphasised that this was the second opportunity to approve an amnesty aimed at the political resolution of the case known as Caso Frente de Unidade Popular / Forças Populares 25 de Abril. (FUP/FP 25 DE ABRIL was a semi-clandestine, leftist organisation which advocated the use of violence to establish a people's revolutionary regime. One of its members, and perhaps its leader, was Otelo Saraiva de Carvalho, the military commander of the coup d'Etat of 25 April 1974 and a former candidate for the post of President of the Republic.)
Two grounds had been invoked during the legislative procedure concerning Act no. 9/96 to justify the amnesty. First, the amnesty sought to rectify the law, since the legal complexity of Caso FUP/FP 25 de Abril made a judicial solution extraordinarily difficult. Second, the amnesty aimed to promote peace after a historical period of politically motivated violence, and such an amnesty had long been advocated in order to consolidate democracy and to foster political stability and social peace.
However, the constitutionality of the above-mentioned bill had immediately been challenged in the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees of the Assembly of the Republic, on the basis of three legal arguments:
a. the text only allowed for the amnesty of certain crimes, committed in a particular period, within the context of a particular terrorist organisation and therefore violated the principle of equality established by Article 13 of the Constitution;
b. the crimes concerned (armed robbery, kidnapping, holding persons against their will and even murder and similar crimes) were not amenable to amnesty;
c. the law related to a single terrorist organisation, whose members would thus receive privileged treatment because of their political and ideological beliefs - contrary to the explicit provision of Article 13.2 of the Constitution.
However, the (left-wing) majority of this Committee and also the plenary session of the Assembly of the Republic decided that this bill was indeed constitutional. The legal argument used in the parliamentary debate reflected the controversy prevalent throughout the development of Portugal’s legislation and case law on amnesties. The Constitutional Court considered all these points in detail and unanimously concluded that the amnesty Act concerned was constitutional.
The Constitutional Court decided that the Law no. 9/96 on amnesty does not violate the Constitution.
The Constitutional Court had already settled several questions of unconstitutionality in the numerous criminal proceedings arising from Caso FUP/FP 25 de Abril. Furthermore, in its Judgement 184/86 (published in the Official Gazette, Diário da República, Series II, of 21.05.1996) - which had been considered in plenary assembly since the decision also concerned the powers of the Constitutional Court itself in relation to other courts - it had had cause to reaffirm its previous case-law on the unconstitutionality of certain standards of criminal procedure, concerning in particular appeals on grounds connected with the facts of a case.