The government-approved amnesty now in the Assembly of the Republic (AR), which aims to mark the arrival of Pope Francis to Portugal for World Youth Day (WYD), could jeopardize the constitutional principle of equality.
The warning is issued by Parliament’s own services, which remind in the bill’s admissibility note that the measure is limited to “persons between the ages of 16 and 30 on the date of the commission of the offense or misdemeanor, until 19 June 2023”. “.
Well, the “differentiation between people criminally due to age”, even if “the type of crime was the same,” the document says, “may justify consideration that this standard is in line with the constitutional principle of equality”.
Contrary to common practice, the note’s conclusion is not final: “The presentation of this initiative appears to comply with the formal eligibility requirements set out in the Constitution and Rules of Procedure of the Assembly of the Republic”. As he always does when there are doubts about the constitutionality, the president of the AR, Augusto Santos Silva, draws the attention of deputies to these comments, which “must be taken into account during the legislative process”. A process that goes much faster than usual, as it is handled with urgency.
In the preamble to the bill, the government justifies the age limit of the measure with the nature of the event that will take place at the beginning of August: “Since WYD covers young people up to the age of 30, a regime of pardons and amnesty that has young people as protagonists is . In particular, young people from the age of criminal responsibility to age 30, the age limit for WYD”. The text adds that “as in previous pardon and amnesty laws in which young people received special benefits, and because the scope of the WYD is delineated, it is justified to adapt the leniency measures to be taken to the human reality for which they are intended”.
While the article speaks of “special benefits” for young people in previous amnesties, this was not the case for the three proclaimed on the occasion of other papal visits (in 1967, 1982 and 1991). And the AR’s memorandum says only three laws were discovered, “specific rules that established that certain jail sentences were replaced by fines, when applied to minors under age 18 or 21 or over 70.” The document cites several Constitutional Court rulings on amnesty and pardon, which emphasize the principle of equality.
For the constitutionalist Paulo Otero, there is “no doubt” that this measure is “unconstitutional”. “No one can benefit because of age. And, Clearly, since there is an amnesty between age W and age Y, an allowance is awarded according to age”, argues. A second aspect of the same principle of equality is that “all those who have committed the same crimes”, who are older than the stated age, “are disadvantaged”: “For them, the behavior adopted remains a crime” . Faced with this scenario, says Paulo Otero, Marcelo Rebelo de Sousa will have to choose between one of two hypotheses: political veto in the face of “screaming unconstitutionality”; or it can urgently initiate the preventive inspection of the diploma at the Constitutional Court.
Jorge Bacelar Gouveia also has no doubt that the age difference provided for by the government diploma is against the constitution and against the principles of equality and proportionality. “If it were a generic measure, go anyway…”, says the constitutionalist, who says he sees no reason for amnesty or remission of sentences on the occasion of the papal visit. “I think that a pope’s visit does not warrant any degree of penal clemency. This violates the principle of the secularity of the state, to favor a religion, even if it is the majority, is an authority superior to the other religious confessions. And I say this with ease, I am a practicing Catholic,” Bacelar Gouveia insists to DN. “Moreover, it can give the idea of a political use of a religious event,” he adds, defending that the principle should be different: “To God what is God’s, to Caesar what is Caesar’s”.
The government diploma stipulates a one-year pardon for all sentences up to eight years of imprisonment (always within the age group between 16 and 30 years old), and an amnesty scheme is also established for crimes whose maximum applicable fine limit does not exceed 1,000 euros and offenses for which the penalty does not exceed one year in prison or a fine of 120 days. There are several crimes that are exempt from this pardon such as cases of murder, infanticide, domestic violence, crimes against freedom and sexual self-determination, extortion, discrimination and incitement to hatred and violence, influence peddling, money laundering or corruption, among others . . Yesterday the government came to clarify that traffic crime also falls outside this measure.
Source: DN
