Amnesty

The amnesty (from the Greek amnestia, oblivion/forgiveness) is a legal instrument of the Legislative Power, which has the effect of preventing, in a period of time, (non-serious and judicially adjudicated offences) criminal prosecution and, in some cases, civil actions against certain persons or categories of persons for “specific” criminal conduct committed prior to the approval of the amnesty; or, the retrospective annulment of the previously determined legal responsibility.

Amnesties do not prevent legal liability from being enforced for conduct that has not yet taken place, which would constitute an invitation to violate the law.

With amnesty, it is possible to forgive people who were forced to work with organized crime or to commit crimes (growing and transporting drugs are the main examples) or forgive people who were unfairly blamed.

Etymology

Amnesty, Greek word composed of the private a and memory, that is, without memory or mutual and general forgetfulness of past things. This name was given for the first time to a law made by Thrasybulus in which he commanded a general oblivion of all that was past, after having thrown out the thirty Tyrants of Athens. With this measure, the Republic recovered its former strength, peace and freedom.

The orator Andocides, in his harangue on the mysteries, has preserved the formula of amnesty and the oaths that accompanied it or were sworn to its publication.

Features

• It is a general rule that tends to benefit a group of people.
• It is a law of oblivion, which results in forgetting certain infractions, that the proceedings are terminated and if they were already failed, the sentences imposed on the grounds of amnesty are without effect. The amnesty erases acts that have happened before or after a court ruling; suppresses the offence, the prosecution of the offence, the formation of trials.

• The behavior "for forgetfulness" is limited to a certain period of time, which implies a specific fact or circumstance, as a particular conflict.

• The legal consequences of human rights violations may be waived, provided that they are not serious, when the persons concerned have been punished for their acts of non-violent political dissent.
• Some amnesties are accompanied by repair measures.

Limits in an amnesty

International jurisprudence has established that amnesties cannot be established to forget human rights violations. That is, there can be no amnesty when:

• Proceedings of persons who may be criminally responsible for war crimes, enforced disappearance, genocide, crimes against humanity or serious human rights violations are prevented;
• They interfere with the right of victims to an effective remedy, including reparation;
• The right of victims and societies to know the truth about human rights violations and humanitarian law is limited.

In addition, amnesties that seek to restore human rights must be formulated with a view to ensuring that they do not limit the rights restored or in any way perpetuate the initial violations.

Justification

The amnesty is justified by the utility it can have for society, that certain facts are forgotten and has the effect of extinguishing public action, so that the benefit is inalienable and produces full-fledged effects, invalidating any sentence. Those sentenced to corporal punishment, recover their freedom; including fines and expenses paid to the treasury must be restored.
Similarly, the purpose of amnesty is to create favorable conditions to reach peace agreements or to promote national reconciliation.

Difference with pardon

Unlike a pardon, which extinguishes criminal responsibility by acting on the penalty derived from a crime (the person remains guilty, but the sentence has been pardoned), amnesty acts on the crime itself. For this reason, amnesty usually has retroactive effects and, among other things, extinguishes all criminal or civil liability and annuls criminal records. For the same reason, it is general, since it acts on all those who committed that crime, and not on specific individuals.

The amnesty usually supposes a new value judgment on the advisability of prohibiting or sanctioning a conduct. For this reason, amnesty laws or acts are more frequent in moments of social change or political regimes and, on occasions, they are associated with the pardon of political prisoners. However, its use can be the subject of controversy, since it can lead to impunity for those who committed serious acts during a previous regime.

Differences between pardon and amnesty:

• The pardon presupposes the pardon of the penalty, while the amnesty presupposes the forgiveness of the crime. That is why you can only pardon the part of the penalty that has not been fulfilled, while amnesty may involve rehabilitating the amnesty in rights already lost in fulfilling the penalty imposed.
• Pardon affects a particular person, amnesty affects a plurality.
• The pardon does not extinguish civil liability derived from the crime, amnesty does.
• In general, to grant pardon is necessary an administrative act, for amnesty a law is necessary.
• The amnesty extinguishes the criminal record, while the pardon does not necessarily.
• To grant a pardon, a firm sentence is necessary, for amnesty it is not necessary.
• Amnesty is generally applicable to political crimes.