Generic pardon of sentences
Rights of victims of crime
RULING No. 488/2008
Case no. 35/08
Rapporteur: Justice Benjamim Rodrigues
Ruling of the 2nd Section of the Constitutional Court:
A – Report
1 – Under the terms of Article 70(1)b of the current version of Law no. 28/82 of 15 November 1982 (the LTC), A. has appealed to the Constitutional Court against a ruling which the Lisbon Court of Appeal handed down on 29 November 2007. In that ruling the latter court denied her appeal against an order issued by the 1st Bench of Almada Criminal Court in Case no. 3004/95.0 JA PRT, on the grounds that it was manifestly unfounded. In the present appeal A. would like this Court to consider the constitutionality of the part of the rule laid down by Article 5(1) and (2) of Law no. 29/99 of 12 May 1999 under which a resolutive pardon is granted on condition that reparation is made to the injured party in the form of due compensation to be paid in the 90 days following the notification which must be sent to the convicted person to that end. She argues that it “prejudices the convicted person because of his financial situation (Article 13), does not consider the convicted person equal before the law (Article 13), and restricts his rights, freedoms and guarantees (Article 18), without that restriction being of a general and abstract nature (Article 18; all references to the Constitution of the Portuguese Republic)”.
2 – Along with two other accused persons, the appellant was convicted of a crime and sentenced to an effective prison term of 2 years and 6 months, together with payment of compensation to the injured party.
The appellant only served part of that term, in that her prison sentence was reduced by one year under the terms of Law no. 29/99, but on condition that she paid the compensation which she had been ordered to make within 90 days of the notification that was sent to her for that purpose.
In the belief that she had complied with this resolutive condition, the accused person asked the court that had convicted her to declare it fulfilled, inasmuch as she was paying the debt which had been generated by her sentence, under the terms of an executive process in which part of her salary was attached; she also asked that if the court did not agree to her first request, it grant her another 90-day period counting from the issue of a new notification to pay.
The court of first instance denied both of the appellant’s requests.
The accused did not agree with this decision and appealed to the Lisbon Court of Appeal, before which she continued to defend the aforementioned points and raised the issue of the unconstitutionality of Article 5(1) and (2) of Law no. 29/99 of 12 May 1999, on the grounds that it “prejudices the convicted person because of his financial situation (Article 13), does not consider the convicted person equal before the law (Article 13), and restricts his rights, freedoms and guarantees (Article 18), without that restriction being of a general and abstract nature (Article 18; all references to the Constitution of the Portuguese Republic)”.
3 – The court whose decision is now the object of appeal rejected the earlier appeal on the grounds that it was manifestly unfounded, and decided the question of unconstitutionality that had been put to it with the following remarks:
“VIII. It now remains for us to turn deserved attention to the argument that Article 5(1) and (2) of Law no. 29/99 of 12 May 1999 is unconstitutional because it breaches the principle of the equality of all citizens enshrined by Articles 13(1) and (2) and 18(2) and (3) of the CRP.
The jurisprudence has been uniform in its view of the way in which the law should treat the principle of equality, in the latter’s role as a key structural principle of the overall constitutional system, with the meaning that no one may be privileged, prejudiced, or deprived of any right on the basis – among other things – of his financial situation. In the light of Article 13(1) of the CRP, one such uniform conclusion has been to prohibit unjustified forms of discrimination. This precept only forbids the unequal treatment of that which is equal – not the differentiated treatment of unequal situations.
The principle of equality is thus broken down into the obligation to treat that which is equal in an equal way, and to treat that which is not equal in an unequal way. The obligation to differentiate appears to be the fairest means – apart from anything else, as a manifestation of the principle of equality – of treating unequal situations.
The requirement for the principle’s application in practice is that measures must be based on material grounds from the points of view of legal security, proportionality, justice, and solidarity, and must not be based on any motive which the Constitution deems unfit. Differentiations are legitimate when they rest on an objective distinction between situations, seek to attain a legitimate purpose, and prove necessary, appropriate and proportionate to their objective (see Professors Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa, Anotada, Coimbra Editora, p. 128).
The appellant – who did not, however, give a real reason that would render the rule unconstitutional in the sense that it breaches the principle of equality when it leads to the revocation of her pardon due to her failure to perform the function of making reparation for the damage caused by her criminally unlawful conduct – is not correct in her argument. The fact is that the revocation of a pardon for failure to make reparation only applies to convicted persons who have not fulfilled the obligation to make reparation, and it is not possible to say that that obligation is materially unjust; or that it is “unreasonable and arbitrary” (see Constitutional Court Ruling no. 108/99, Series II of the Diário da República of 1/4/99). If an accused person wishes to benefit from a pardon, it is reasonable, fair and proportionate for the legislative authorities to charge him with making reparation for the damage he caused; the State can do as it will with its punitive power, but it cannot (or should not) do as it will with an injured party’s interests, which are protected by a sovereign authority.
Contrary to the argument before us, the legal requirement here is not to prejudice someone because of their financial situation, but rather to unconditionally prevent the person who is subject to the obligation from depriving the injured party of compensation – something that would unjustifiably work in the latter’s disfavour. At the end of the day, this results in differentiated treatment for someone who ought to be treated differently.
Nor is this a case of treating an accused person who has been convicted of committing a serious crime against someone else’s material interests and who does not think she is in a position to fulfil the condition imposed on her pardon because she does not have the financial means to do so on the one hand, any differently from other citizens who, for lack of financial means, do not pay the debts they have incurred on the other hand, because she has committed a crime; the reparation imposed by the court sentence is a consequence of the commission of an unlawful act (Article 129 of the Penal Code).
So the legislative authorities possess the legitimacy to establish requirements – which appear to us to be entirely pertinent – in accordance with the interests that need to be taken into consideration and the objectives targeted by the punishment, which lie outside the scope of the prohibition on arbitrary judgements (see Constitutional Court Ruling dated 2/11/99, in BMJ 491, p. 5).
At the same time, the law governing amnesties treats every citizen who finds himself in the position of the accused in the same way, and the law is not applied in a manner that represents any form of discrimination.
We refer the appellant to these arguments and this solution, with which she is in any case already familiar, given that she was notified of this decision.
Finally, at this point, for the reasons set out above in relation to the time that has passed since the unlawful act was committed, the sentence was handed down and the notification was issued (more than a year ago), it is not possible to grant the appellant’s request for a new 90-day period. This is because granting that request would only be putting the problem off until later – in short, running away from the problem in the hope that it will not catch up with the appellant, in a way that directly contradicts the reasons why the pardon was granted in the conditional format adopted by the law.
It is thus manifestly clear that the appellant’s argument cannot be upheld.”
4 – The appellant once again said that she did not agree with the court’s decision, and brought the present appeal before the Constitutional Court. Although the rapporteur initially decided that the appeal should not be heard, the Conference of Justices altered this position under the terms of Article 78-A of the LTC, and granted the appellant’s motion for an appeal.
5 – After being notified to present her case, the appellant concluded her arguments as follows:
“1. The accused person, who is the appellant herein, informed the plaintiff / execution creditor of her income, which the latter then attached in order to pay the compensation that had been awarded, and the notification referred to by Article 5(2) of Law no. 29/99 of 12.05.1999 was issued.
2. The accused’s salary has been attached from 05/2007 until the present time, and the amounts retained therefrom have been deposited at the Court’s disposal.
3. Given this attachment of the accused’s salary and the retentions therefrom which have been deposited at the Court’s disposal, we believe that by granting the pardon on the resolutive condition that reparation was made to the injured party in the form of the compensation due to her, with payment to be made within 90 days of the notification which must be sent to the convicted person to that end, Article 5(1) and (2) of Law no. 29/99 of 12.05.1999 prejudices the convicted person due to his financial situation (Article 13), does not consider him equal before the law (Article 13), and restricts his rights, freedoms and guarantees (Article 18), without that restriction being of a general and abstract nature (Article 18; all references to the Constitution of the Portuguese Republic).
4. What is more, in prison – in the event that her imprisonment is ordered along with the revocation of the pardon that has been granted – the accused person will not be able to pay the plaintiff / execution creditor the compensation which has been set, because she will cease to earn a salary.
5. Article 5(1) and (2) of Law no. 29/99 of 12.05.1999 – which, as a resolutive condition, requires the accused to pay the compensation to which she has been sentenced within 90 days of the notification that was sent to her, with revocation of the 1-year pardon that has been granted in the event that reparation is not made to the injured party by the deadline so notified – is unconstitutional. This unconstitutionality occurs because the convicted person is paying the injured party via the attachment of her income, the amount of which the former informed the latter, and because, other than those she declared for the purpose of the attachment, she has no other means of payment.
6. The part of Article 5(1) and (2) of Law no. 29/99 of 12.05.1999 which requires the revocation of a pardon that has been granted when the accused person’s salary (the amount of which she informed the injured party) is attached in order to pay the compensation that was awarded to the latter, is unconstitutional because it breaches Articles 13(1) and (2) and 18(2) and (3) of the Constitution of the Portuguese Republic”.
6 – The Assistant Attorney-General presented his counter-arguments to the Constitutional Court, and concluded as follows:
“1. The rule laid down by Article 5(1) and (2) of Law no. 29/99 of 12 May 1999 is not rendered unconstitutional by the fact that it requires payment of the due compensation within 90 days of notification of the convicted person as a resolutive condition for the grant of a pardon.
2. As such, the present appeal should be denied.”
B – Grounds for Decision
6 – The terms of the decision which permitted the present appeal mean that the latter’s object is limited to the question of whether the imposition of the requirement to pay compensation to the injured party within 90 days of the notification which is sent to the convicted person for that purpose under the terms of Article 5(1) and (2) of Law no. 29/99 of 12 May 1999, as a condition for the grant of the 1-year pardon granted by Article 1(1) of the same Law, is constitutionally invalid in the light of the rules and principles set out in the Constitution – be they those indicated by the appellant, or any others.
Article 1(1) of the aforesaid Law states that “in the case of infractions committed on or before 25 March 1999, one year of prison shall be pardoned […]”.
The grant of this pardon was, however, subjected to a resolutive condition. The fact is that paragraphs (1) and (2) of Article 5 state that:
“1 – Whenever the convicted person has also been sentenced to pay compensation, the pardon shall be granted subject to the resolutive condition that reparation is made to the injured party, or, in cases involving the issue of a cheque without funds, to the bearer of the cheque.
2 – The condition referred to by the previous paragraph shall be fulfilled within 90 days of the notification that shall be sent to the convicted person to this end”.
7 – It is important first of all to characterise the generic pardon of sentences, inasmuch as the concrete question before us deals with that category of legal theory and with the terms under which it is subject to the rules laid down by the Constitution.
Pardoning sentences is a measure of clemency or “the prince’s” grace, which is applied in accordance with the sentences that are imposed on the persons in question.
As a measure of clemency, a pardon is derived from a political act which becomes a legal source of effects on judicial sentences (on the view that clemency is a virtue of the legislative authorities, see Cesare Beccaria, Dos Delitos e das Penas, in the translation by José Faria Costa, 2nd edition, Calouste Gulbenkian Foundation, p. 161).
A pardon prevents the execution of a sentence that has been imposed for the commission of crimes (on the meaning of this concept and of similar formats, see, among others, Pedro Duro, “Notas sobre alguns limites do poder de amnistiar”, in Themis, Revista da Faculdade de Direito da UNL, Year II, no. 3, 2001, p. 323 et seq.; and Francisco Aguilar, Amnistia e Constituição, Almedina, p. 37 et seq.).
Inasmuch as in terms of the sentence’s fulfilment, a generic pardon makes the concrete sentence imposed for the commission of a crime which the law typifies and punishes irrelevant – or seen from another angle, results in total or partial disregard for the sentence which was imposed and which the legislative authorities abstractly laid down for infringement against the legal/penal property covered by the legal definition of the type of crime concerned – as a rule, a generic pardon of sentences is thus decreed by the body with the responsibility and the power to define that criminal offence.
From this point of view it is also a specific means of implementing criminal policy on the effective fulfilment of the sentences imposed for the commission of the crimes which are defined as such by law.
When a pardon takes the shape of a general measure of clemency that is applied to everyone, in accordance with their sentences, it is classed as a general pardon.
However, to the extent that a generic pardon operates in accordance with the sentences that are imposed, and in principle covers all convicted persons, it can be distinguished from an amnesty or a remission of sentence.
Since the 1982 constitutional revision and the addition of the expression “and generic pardons” to the last part of Article 164f (taken together with the reference to amnesties and with the existing provision which Article 137(1)e makes in relation to the President of the Republic’s power to grant remissions and commutations of sentences that have already been handed down), the Constitution itself has acknowledged the differentiation of these concepts.
And, basing itself on the traditional concepts set out in the Constitution and taking them particularly from the point of view of the effects they generate, Article 126 of the 1982 Penal Code (which was published after the constitutional revision of the same year, and now corresponds to Article 128 of the current Penal Code) states: that an amnesty “extinguishes the criminal procedure (a ‘specific amnesty’) and, in the event that there has been a conviction, causes the execution of both the sentence and its effects and of the security measure to cease” (‘specific amnesty’ in the first situation, and ‘non-specific amnesty’ in the second); that a generic pardon “extinguishes all or part of the sentence”; and that a remission of sentence “extinguishes all or part of the sentence, or replaces it with another, more favourable one provided for by law” (for a historical understanding of the concept of amnesty, see Constitutional Court Ruling no. 444/97, which is available for consultation at www.tribunalconstitucional.pt).
An amnesty thus affects the punishability of those acts which are defined as crimes; it functions in accordance with the crime in question, whereupon acts that have been committed up until the (historical and legal) moment in time set by the amnesty are no longer considered criminal acts.
An amnesty retroactively extinguishes the criminal punishability of the facts that previously typified the crime in question, albeit the same types of criminal fact continue to be considered as such in the future.
A remission of sentence, on the other hand, only affects the sentence which a court decision that has transited in rem judicatam specifically imposed on a specific person, which it extinguishes in full or in part, or alters, or suspends; in the latter situations the sentence is said to have been “commuted”.
The Constitution of the Portuguese Republic gives sole responsibility and power to grant generic amnesties and pardons to the Assembly of the Republic (Article 161f).
The material justification for giving this responsibility and power exclusively to the Assembly of the Republic lies precisely in the fact that the generic pardon is derived from an essentially political act with consequences for the criminal policy that the parliament specifically adopts when it defines types of criminal act and provides for the corresponding sanctionary measures.
The power to grant remissions and commutations of sentences is among the specific responsibilities entrusted to the President of the Republic, who must consult the Government before he exercises it (Article 134f of the CRP).
8 – Although the grant of a generic pardon (the only format that is of interest to us here) is the effect of a political act, which may be made for a very wide range of reasons (as regards amnesties, see Rulings nos. 444/97 and 510/98, both of which are available for consultation at www.tribunalconstitucional.pt) – examples include magnanimity on an exceptional occasio publicae laetitia, reasons related to a general policy designed to calm public opinion, or other reasons involving the correction of certain legal judgements made at an earlier time, or the way in which those judgements have been applied by jurisprudence or the public administration – it is expressed in a material sense by means of a law.
Inasmuch as the publication of such a law falls within those of the ordinary legislative authorities’ responsibilities that apply to the field of criminal policy, we must acknowledge that those authorities possess normative/constitutive discretion to shape the law’s content.
In its Ruling no. 42/02 (available for consultation at www.tribunalconstitucional.pt), the Constitutional Court said with reference to the fact that in the generic pardons they granted, Laws nos. 23/91 of 4 July 1991, 15/94 of 11 May 1994, and 29/99 did not address the security measure of internment, that:
“In this domain, the understanding of the Constitutional Court, which it has reiterated on a significant number of occasions, has been that within the obvious parameters of the democratic state based on the rule of law, the freedom to shape legislation enjoys a broad space in which there are preponderant considerations that are not necessarily limited to the specific purposes of the state’s sanctionary apparatus, but also others dictated by the public advantage which, at the end of the day, proceed from the concept of raison d’état”.
However, this normative/constitutive discretion is not without limit – it must respect the rules and principles laid down by the Constitution.
Those constitutional rules and principles always appear in the form of a limit on the legislative activity of the body to which the Constitution entrusts the responsibility and power to take decisions on the matter.
These principles, which the ordinary legislative authorities with the responsibility and power to take decisions on the generic pardon of sentences, include that invoked by the appellant – the principle of equality before the law and in law (in addition to the Rulings mentioned above, see Pedro Duro, op. cit., p. 336; and Francisco Aguilar, op. cit, p. 209).
It is important to recognise that the legislative authorities did not fail to respect the first of these two aspects when they legislated on this generic pardon.
In reality, the pardon was granted to all convicted persons who had committed the same crimes as the ones the appellant was found guilty of, and who found themselves in the same situation.
The pardon covers everyone who is convicted of having committed any of the categories of crime in question up until the point of time established by the Law, except for those convicted persons who are in a specific situation, which the Law defines in a general and abstract manner (Article 2 of Law no. 29/99), or who have committed certain categories of crime (paragraph  of the same Article).
At the same time, the requirement to pay the compensation within a given period time as a resolutive condition of the grant of the pardon was also established in a general and abstract way – every person who was sentenced to a prison term and was also ordered to pay compensation to injured parties, was placed in exactly the same situation as regards benefiting from clemency.
It falls within the ordinary legislative authorities’ normative discretion to choose both the extent to which sentences are pardoned – the quantum of the pardon – and, in principle, the kinds of crimes or infractions to which the sentence has been applied and have then been pardoned; both on condition that this is done in a general and abstract manner, for everyone and every situation that fits within the applicable framework.
At this point it is important to know whether the abovementioned precepts breach the principle of equality in law, or whether, on the contrary – as the appellant argues – they operate an illegitimate discrimination because of the convicted person’s financial situation.
From the appellant’s point of view, by granting the pardon subject to the resolutive condition of payment to the injured party of the compensation that was awarded, by a certain deadline, the Law discriminates against convicted persons who do not possess the financial capacity to pay, compared to a convicted person who does possess it, thereby treating the former unequally.
We have already seen that everyone who benefits from the pardon of their sentences is in the same situation as regards being subjected to the aforementioned resolutive condition that they must pay the compensation by a given deadline.
It can, however, happen that on the factual level the beneficiaries of the pardon possess differing financial abilities to pay the compensation to which they were sentenced and thus fulfil the resolutive condition.
In Article 13(2), the Constitution states that “No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of […] financial situation […]”.
But equality is not equalitarianism.
The Constitutional Court has produced a vast jurisprudence on the principle of equality.
In a passage that reflects the current understanding of the principle of equality in both Portuguese and foreign jurisprudence and legal theory, Constitutional Court Ruling no. 232/2003 (published in Series I-A of the Diário da República of 17 June 2003), various steps of the grounds for which rely on abundant arguments set out in earlier jurisprudence, says:
“[...] The principle of equality is a key structural principle of both the democratic state based on the rule of law and the overall constitutional system (in this respect, see Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa Anotada, 3rd edition, Coimbra, 1993, p. 125). It directly binds public authorities, whether their responsibilities are legislative, administrative or jurisdictional (see op. cit., p. 129). This results on the one hand from the fact that it is enshrined as fundamental right that accrues to citizens, and on the other from the "attribution of a specific legal force to the constitutional precepts concerning rights, freedoms and guarantees, which is reflected in their direct applicability, without the need for any law to regulate them, and from the fact that they are immediately binding on all public persons and bodies, whether their responsibilities are legislative, administrative or jurisdictional (Article 18 of the Constitution)”(see Constitutional Court Ruling no. 186/90, published in Series II of the Diário da República of 12 September 1990).
1.2.- In the opinion expressed in the aforementioned Ruling no. 335/94, given the legislative authorities’ freedom to shape legislation, the principle does not mean that they cannot (ought not to) establish “reasonable, rational, and objectively founded” differentiated forms of treatment, failing which “the legislative authorities are running the risk of being arbitrary by failing to provide for solutions that are objectively justified by constitutionally important values”. The point is that there must be sufficient material grounds that neutralise the arbitrariness and preclude unfounded discrimination (in the words of j.c. vieira de andrade – Os Direitos Fundamentais na Constituição Portuguesa de 1976, Coimbra, 1987, p. 299 – the important thing is not to discriminate for discrimination’s sake).
The profile of the principle of equality is thus that of a “principle of negative control” on the farthest limit of the legislative authorities’ ability to shape legislation (see Gomes Canotilho and Vital Moreira, op. cit., p. 127; and, e.g. Rulings nos. 157/88, published in Series I of the Diário da República of 26 July 1988, and nos. 330/93 and 335/94, to which we have already referred), but one which does not deprive that ability of the plasticity it needs in order to make provision for differences that will justify the law treating two (or more) groups targeted by a rule differently, when their concrete factual and legal situations in relation to a given point of reference are compared (“tertium comparationis”). In truth, a difference can justify unequal treatment, while nonetheless eliminating any arbitrary element (in this respect, see gomes canotilho, in Revista de Legislação e de Jurisprudência, year 124, p. 327; alves correia, O Plano Urbanístico e o Princípio da Igualdade, Coimbra, 1989, p. 425; Ruling no. 330/93).
However, the principal of equality does not operate solely in the formal, reductive sense of equality before the Law; it simultaneously implies the equal application of equal law (see gomes canotilho, Constituição Dirigente e Vinculação do Legislador, Coimbra, 1982, p. 381; alves correia, op. cit., p. 402), which presupposes casuistically assessing the "difference" and attaching a value to it, in such a way that those who are in similar situations receive similar treatment, and those who are in situations which legitimate differentiation are treated in a differentiated manner.
“[...] The Constitutional Court has held that the principle of equality means that situations in the same essential category must be treated in the same way, and that situations which belong to essentially different categories must receive a treatment that is also different. Differentiated forms of treatment are consequently acceptable, on condition that they are justified in the light of the axiological criteria imposed by the Constitution. Equality only prohibits forms of discrimination when the latter are lacking in rational grounds (in particular, see Rulings nos. 39/88, 186/90, 187/90 and 188/90, in Acórdãos do Tribunal Constitucional, vol. 11. (1988), p. 233 et seq., and vol. 16. , p. 383 et seq., 395 et seq. and 411 et seq., respectively; among the legal theorists, also see jorge miranda, Manual de Direito Constitucional, vol. IV, 2nd edition, 1993, p. 213 et seq., gomes canotilho, Direito Constitucional, 6th edition., 1993, pp. 564-5, and gomes canotilho and vital moreira, Constituição da República Portuguesa anotada, 1993, p. 125 et seq.)”.
Having established that it is possible to make differentiations, it is now necessary to control the rules before us in the light of the purpose they seek to achieve, the principle that discretionary treatment (Willkürverbot) is prohibited, and a criterion of reasonableness.
As the “inventor” of the principle that discretionary treatment is prohibited, Gerhard Leibholz (see f. alves correia, O plano urbanístico e o princípio da igualdade, Coimbra, 1989, p. 419 et seq.) argued that it is once the ratio of the provision in question has been determined that it is possible to assess whether the provision possesses “reasonable grounds” (vernünftiger Grund). Here in Portugal this idea has been reiterated by maria da glória ferreira pinto: “[I]nasmuch as what is at stake (...) is a given legal treatment of certain situations, the criterion that will govern whether those situations are qualified as equal or unequal is directly determined by the 'ratio' of the legal treatment which one wants to give them – i.e. it is functionalised by the goal which is to be achieved by the aforesaid legal treatment. The 'ratio' of the legal treatment is thus the ultimate point of reference for valuing and choosing the criterion” (see Princípio da igualdade: fórmula vazia ou fórmula 'carregada' de sentido?, published as separate sheets with Boletim do Ministério da Justiça, no. 358, Lisbon, 1987, p. 27). The same author goes on to say: “[The] structure of the principle of equality means that the valuation criterion which makes it possible to gauge equality is thus indissolubly linked to the 'ratio' of the legal treatment that determined the criterion. This does not mean, however, that the 'ratio' of the legal treatment demands that the criterion for gauging equality be this particular one – the specific criterion that is to be adopted – and not that, other one. When it comes down to it, this means that there must be a link between the criterion that is adopted and the 'ratio' of the legal treatment. So if one wants to create an exemption from an occupational tax, there will be compliance with the principle of equality if the criterion for determining the situations which are to be exempt consists of the choice of a set of professionals who are looked down on in the social context, just as there will be compliance with the principle if the criterion consists of the choice of a minimum income deemed indispensable to the subsistence of a family in a given society” (op. cit., pp. 31-32).
The imposition of the resolutive condition analysed above does not appear to be lacking in sufficient material or rational grounds, and certainly cannot be considered an unreasonable or arbitrary measure.
The justification for the compensation lies in the commission of the crime. It is the commission of a criminally unlawful act that is the cause or legal grounds for sentencing the accused person to pay compensation to the injured party.
To this extent it is also a legal effect of the commission of the crime, as is the imposition of a criminal sentence.
It is clear that the sentence essentially seeks to satisfy state interests in the reconstitution of legal pax between the social community and the criminal – something which is achieved by a measure which is functionalised in such a way as to promote the general prevention of crime and the resocialisation of the criminal – and that the purpose of the compensation is to “repair damage” which has been caused to the injured party, by seeking to reconstitute the situation which would have existed had it not been for the occurrence of the “event which requires compensation” (see Articles 483 and 562 of the Civil Code).
From this perspective, these are autonomous legal effects.
However, the court order to pay compensation is still a concrete consequence of the (criminal) unlawfulness of the act that was committed and of the legal system’s reaction thereto in the injured party’s favour or with a view to the latter’s protection.
The order continues to be intimately linked to the commission of the crime. What is more, the Penal Code expressly subscribes to this intrinsic relationship between the commission of the crime and the duty to make reparation for the damage caused, when Article 71 states that both the consequences of the crime and the conduct needed to repair them must be taken into account in determining the sentence, and when Articles 50(1) and (2) and 52(1)b provide for the possibility, under certain specified conditions, for the sentence to be suspended if the compensation is paid or its payment is guaranteed by a suitable bond. The Constitutional Court has considered the latter rule and has held that it is not unconstitutional (see Rulings nos. 596/99 and 440/87, the latter concerning the corresponding precept laid down by the 1982 Penal Code; on the part of Article 14(1) of the General Rules governing Tax-Related Infractions [RGIT] which subjects suspension of the execution of a prison term to payment by the accused person of the debt owed and of any additional amounts imposed by law, also see Rulings nos. 256/03, 335/03, 500/05 and 29/07, all of which are available for consultation at www.tribunalconstitucional.pt).
In fact, this intrinsic link was the reason why Article 34 of the 1929 Code of Criminal Process (CPP) already enshrined the principle that the court can award compensation on its own initiative: “in the event of conviction, the judge shall award the injured parties a sum as reparation for losses and damage, even if such compensation has not been requested”.
Moreover, notwithstanding the fact that the legislative authorities who wrote the current Code of Criminal Process opted for the principle that the civil suit should be joined to the criminal proceedings, thereby obliging the injured party to make the applicable request for compensation (Article 71: “requests for civil compensation based on the commission of a crime shall be made within the scope of the respective criminal proceedings, and may only be made separately to a civil court in the cases provided for by law”), this option is nevertheless based on the intimate connection between the compensation and the crime.
To this extent it is entirely understandable that the competent body (the Assembly of the Republic) of the entity (the state) which simultaneously possesses the power of clemency and that of “ius puniendi” may consider that in the event that a sentence is pardoned, legal pax will only exist if the convicted person who was also ordered to pay compensation effectively makes reparation for the damage he has caused to the injured party.
Inasmuch as a pardon is a measure of clemency that wholly or partially extinguishes the sentence imposed for the crime for which the accused person was convicted, but not the criminal and the civil unlawfulness of the acts which were committed, it is clearly justifiable that, within their discretionary power to weigh up all the (criminal and civil) legal damages involved, the legislative authorities who created the clemency feel that it should not be granted when there are civil compensatory effects which still create the need for legal pax with the injured party.
There is thus sufficient material reason to justify the irrelevance of the financial situation in which the beneficiary of the grant of grace in the form of a generic pardon finds himself.
There is thus no breach of the principle of equality.
Nor does the alleged breach of Article 18(2) and (3) of the CRP exist.
In reality, subjecting the grant of the pardon to the resolutive condition of fulfilment of the order to compensate by a certain deadline is not in opposition to any fundamental right, freedom or guarantee which is held by the sentenced person in question and which falls within the scope of the aforementioned precepts.
In addition, and be that as it may, it is clear that the condition has been imposed in a general and abstract manner and applies to everyone who is covered by the pardon and who has also been ordered to pay compensation to the injured party in their case, and that there are material grounds for the condition.
C – Decision
9 – Thus, in the light of the above, the Constitutional Court hereby decides to deny the appeal.
Costs to be paid by the appellant, with court costs set at 25 UCs.
Lisbon, 7 October 2008
João Cura Mariano
Mário José de Araújo Torres
Joaquim de Sousa Ribeiro (dissenting, as set out in the attached declaration)
Rui Manuel Moura Ramos. I voted in favour of the decision, even though it did not resolve all the doubts which the argument based on the principle of equality had raised in my mind, and which would require further study.
Albeit with a degree of doubt due to the impossibility of conducting an exhaustive process of reflection that would weigh up the systemic consequences of my position, I do not agree with the decision, because I believe that a certain aspect of the rules under consideration can be criticised from a constitutional point of view.
I say this to the extent that Article 5(2) of Law no. 29/99 of 12 May 1999 sets a period of 90 days in which the convicted person must pay the compensation due to the injured party, failing which the grant of the pardon must be revoked. While in its own right the imposition of this resolutive condition is constitutionally valid, the same cannot be said of the failure to provide for a “safeguard clause” that would permit an exception in situations in which it is proven that payment is absolutely impossible.
Inasmuch as it is entirely “blind” to financial situations that make it effectively impossible to comply within that deadline, the rule in question treats unequal situations equally, without sufficient grounds for doing so, and thus breaches the principle of equality.
Nor is it applicable to say – as does the sentence which is the object of the present appeal – that “the state can do as it will with its punitive power, but it cannot (or should not) do as it will with an injured party’s interests, which are protected by a sovereign authority”.
In truth the issue here is not about disposing of the injured party’s compensatory credit, which remains untouched within its legal sphere. What is at stake is not subjecting the exercise of the power to punish to the condition of the payment of compensation within a given period of time, without any margin for taking account of situations in which a total lack of financial resources prevents payment of the compensation owed, within the deadline that has been set (even if that deadline can be extended by as much again).
The case before us is a good example of both the lack of a reasonable justification for the fact that the rule considers this situation irrelevant, and the perverse effects to which it can lead. The convicted person proposed the attachment of the only income available to her – the salary she earned as remuneration for her work. The revocation of the pardon, and her consequent return to prison, brings about the loss of that income – something that when all is said and done, also rebounds to the prejudice of the injured party, without enabling us to glimpse the slightest value or interest that would provide sufficient grounds for this solution.
Joaquim de Sousa Ribeiro