Pardon of Penalties and Amnesty of Offenses | Law No. 38-A/2023 of August 2, 2023

The regime of pardon of penalties and amnesty of offenses resulting from the Pope's visit to Portugal comes into effect today. A&A clarifies the scope and extent of this law.

Following the Pope's visit, and similar to what happened previously on three occasions in 1967, 1982, and 1991, a regime of pardon of penalties and amnesty of offenses has been instituted through Law No. 38-A/2023, dated August 2, 2023.

This current law establishes the pardon of certain penalties and offenses, and with its entry into force, there is an urgent need to clarify its scope and extent. In this regard, we aim to briefly address the main questions it has raised and, in some way, attempt to better understand how it will be applied to its beneficiaries.

In this context, the scope of its application encompasses three categories of sanctions: criminal, administrative, and disciplinary – which includes military disciplinary infractions. Although there was initially some discussion about what would be properly covered by the law, these initial questions have dissipated with its approval. Regarding criminal sanctions, crimes committed by individuals aged between 16 and 30 years until June 19, 2023, are eligible. However, not all crimes are eligible, and not all penalties are covered. Therefore, only one year of imprisonment will be pardoned for sentences with a duration of up to 8 years. A different situation applies to crimes for which the applicable penalty is not more than 1 year or 120 days of fine, in which case complete pardon is granted.

In the realm of criminal sanctions, fines of up to 120 days, either as the principal penalty or as a substitute, will be pardoned. This includes prison sentences that are subsidiary to the conversion of a fine, prison sentences for failure to serve a substitute fine, and other substitute penalties with some exceptions.

Regarding administrative offenses, contrary to initial expectations, only ancillary sanctions are pardoned, contingent upon the payment of the fine. Therefore, amnesty will only apply to ancillary sanctions (e.g., driving disqualification) for all individuals who committed a minor, serious, or very serious administrative offense with a maximum fine of €1,000.00 until June 19, regardless of age, but subject to the condition that the imposed fine has been paid.

Concerning disciplinary and military infractions, they are treated in the same manner as administrative offenses, except for infractions that simultaneously constitute non-amnestied criminal offenses under this law and others whose applicable penalty is not higher than disciplinary suspension or imprisonment.

However, just as amnesty does not have an automatic application, the new law provides for a fairly broad range of exceptions to its application. Among these exceptions, it is worth noting crimes involving violence, domestic violence and abuse, serious and aggravated physical harm offenses, crimes against freedom and self-determination of sexual orientation, abuse of trust and fraud involving the falsification of documents, extortion, crimes against cultural identity and personal integrity, discrimination and hatred, torture and degrading or inhuman treatment. Crimes against societal order, such as arson, driving under the influence, criminal association, and crimes against the state, including crimes against the rule of law and corruption, are also exceptions.

It should also be noted that the application of amnesty and pardon recognizes some conditional resolutions. Specifically, legally granted pardons are given on the condition that the beneficiary does not commit a willful offense in the year following its entry into force. In the event of a new offense, the penalty for the subsequent offense will be increased by the enforcement of the previously pardoned penalty or part thereof. The granted pardon also depends, when applicable, on the payment of any compensation or restitution the beneficiary has been ordered to pay, which must be fulfilled within 90 days of notification. Failure to meet any of these obligations will result in the revocation of the pardon for the beneficiary.

Lastly, the pardon of penalties does not extinguish civil liability arising from the amnestied acts. Therefore, even if the perpetrator of the crime has their sentence pardoned, victims or civil claimants can still pursue civil compensation claims, continuing the process solely regarding this matter. New time limits will apply for the submission of these claims if they have not yet been filed. It is important to note that these rights are not affected by the pardon, thus ensuring the rights of victims and civil claimants.