Generic pardon of sentences
Rights of victims of crime
RULING Nº 488/08
7 of October of 2008
It is for the ordinary legislature to decide, under its discretionary powers, to grant a pardon from punishment and determine the categories of offences concerned and whether the pardon shall be subject to conditions, provided that it does so in a general, abstract way and with regard to all eligible persons and situations concerned.
The appellant complained that she had not benefited from the pardon of a one-year prison sentence because she had failed to repair the damage sustained by an injured party through the payment of compensation within 90 days of her conviction and sentencing. She maintained that this condition was to her detriment on account of her financial situation, that it failed to comply with the principle of equality before the law and that it restricted her rights and freedoms without this restriction being of a general, abstract nature.
The Constitutional Court held that, although it was for the ordinary legislature to grant a general pardon under its crime policy, its discretionary legislative power was not without bounds. On the contrary, it must comply with constitutional standards and principles. One such principle which the ordinary legislature must uphold in this context was equality before the law.
The Constitutional Court considered that the legislature had not breached the principle of equality before the law. The pardon had been granted to all persons convicted of the same offence as the appellant and who therefore found themselves in the same situation. Furthermore, the time-limit for payment of the compensation, constituting a condition for granting the pardon, had also been imposed in a general, abstract manner, in so far as all those sentenced to prison and to pay compensation had been treated in the same way as regarded their entitlement to benefit from the clemency measure.
With regard to the question whether the impugned legislation breached the principle of equality enshrined in the law or resulted in unlawful discrimination on account of the appellant's financial situation, the Constitutional Court considered that the impugned condition making the pardon void in certain circumstances had not been imposed without sufficient rational or tangible grounds and, consequently, could under no circumstances be deemed to constitute an unreasonable or arbitrary measure.
The compensation was not only justified by reason of the commission of the offence, it was also a legal consequence thereof, in the same way as the criminal sentence imposed.
The body holding the power to grant clemency and, simultaneously, the right to punish ("jus puniendi") - the state - could consider that, where the punishment was pardoned, legal stability would be fully achieved only if a defendant ordered to pay compensation in respect of the offence committed had effectively repaired the damage caused to the injured party.
Since a pardon is a measure of clemency which cancels in full or in part the penalty applied to the offence of which the defendant has been convicted, but does not nullify the criminal and civil unlawfulness of the acts committed, the legislature's decision not to grant a pardon in cases of non-payment of civil compensation, of even more relevance to the need for legal peace with the injured party, is indeed justified. There is accordingly a sufficient tangible ground for failing to take into consideration the beneficiary's financial situation when granting a general pardon.
The Constitutional Court therefore held that the legislation in question was not unconstitutional.
One judge voted against since he was of the opinion that the rules in question could be incompatible with the Constitution from a certain standpoint, since they allowed the convicted person 90 days to pay the compensation due to the injured party, failing which the pardon would be revoked. He considered that imposing this condition, whereby the pardon became void in certain circumstances, was itself constitutionally valid, but that the lack of a "safeguard clause" making it possible to exclude cases of manifest absolute incapacity to pay was not.
By entirely ignoring financial situations in which it is effectively impossible to make the payment within the time-limit, the legislation in question treats dissimilar situations in the same way, without sufficient grounds, and thereby breaches the principle of equality.
In addition to voting, one judge submitted a written opinion, as he considered that, although he had voted for the decision, it had not settled all the doubts raised with regard to the principle of equality.