There are many concepts and terms within the legal field that we often hear but we do not quite understand what they are. This can be the case, for example, with amnesty and pardon.
Do you know these concepts? Would you know what the differences are between amnesty and pardon ? In this article we will see what each of them means, and what their essential differences are, which will allow you to understand them more clearly.
What are these concepts of the judicial world?
The main difference is found in their own definitions, since pardon implies the forgiveness of the punishment, and amnesty implies the forgiveness of the crime .
This first difference means that, in practice, only that part of the sentence which the pardoned person has not yet served can be pardoned; in the case of amnesty, on the other hand, it may be that the person receiving the amnesty is rehabilitated, in terms of rights already lost.
Thus, these are two terms related to the legal and judicial field, which allude to an abolition of the penalties and/or offences of the convicted persons. Before explaining in more detail and concretely what the differences between amnesty and pardon are, let us explain what each of these concepts consists of, in broad terms.
According to the Royal Spanish Academy of Language (RAE), amnesty is the “pardon of certain types of crimes, which extinguishes the responsibility of their authors”.
According to the different definitions of amnesty, we find that it implies the forgiveness of certain types of crimes (mostly political crimes). On the other hand, the amnesty also extinguishes the responsibility of such crimes to their authors, and eliminates any possible criminal background caused by such crimes . In short, in the amnesty the penalty and the crime are eliminated, and the convicted person is no longer considered guilty.
On the other hand, the amnesty intervenes directly on a category of crimes, and therefore it is not directed to a single individual, but to a whole collective (let’s think about the case of the Catalan process, where the condemned are a collective of people, and not just one).
Thus, the aim of amnesty is to “bury” a source of conflict, which is why, in a way, it is based on oblivion. In other words, is intended to turn the page, in order to promote reconciliation and start a new phase.
In this case, according to the RAE, the pardon has two meanings; the first “Grace by which a sentence is totally or partially remitted or commuted”, and the second “Grace exceptionally granted by the Head of State, by which he totally or partially forgives a sentence or commutes it to a more benign one”.
Other definitions of pardon qualify it as a measure of exceptional grace, which remits the penalties of those convicted, either totally or partially (i.e. some, some or part of them); this measure is given by final judgement.
On the other hand, the pardon affects all kinds of crimes, but it only extinguishes the criminal responsibility of the convicted person. This means that does not suppress the criminal record of the same, as is the case with amnesty . That is, the guilty party remains “guilty”, even if the penalty, or part of it, is pardoned or suppressed.
Main differences between amnesty and pardon
Now that we have known, in broad terms, what these concepts mean, let us see what the main differences between amnesty and pardon are.
1. Object of Forgiveness
The first of the differences between amnesty and pardon is found in the object of the pardon; thus, while in the case of amnesty what is pardoned is the crime (which also includes the punishment), in the case of pardon what is pardoned is only the punishment (but not the crime).
Furthermore, it should be specified that in the case of a pardon, the “central” penalty is usually forgiven, but not the accessory ones . To understand this better, let’s take an example: let’s remember the case of the process in Catalonia (independence); if the prisoners are pardoned, their years in prison are pardoned (central sentence), but not the years of disqualification (accessory sentence). However, each case requires its own study and specifications.
2. Civil liability
Another of the differences between amnesty and pardon has to do with the extinction of civil liability; thus, the pardon does not extinguish the convicted person from the civil liability derived from the crime , while the amnesty does.
Let us remember that civil liability, in understandable terms, is the obligation to compensate (i.e. “to give a thing or benefit to a person as reparation for a damage”), which arises as a consequence of a damage caused.
3. Type of offences
Although both amnesty and pardon are applied to different types of crimes, amnesties are generally applied to political crimes, and pardons to crimes of all kinds .
Take, for example, the case of the trial in Catalonia, where many are calling for amnesty (and not so much a pardon) for the politicians who led the independence movement.
4. Criminal history
As we have seen previously, another of the differences between amnesty and pardon is that amnesty extinguishes the convicted person from the criminal record , while pardon does not (or not necessarily).
5. Requirement of a final judgement
In the case of amnesty, at a legal level, a final sentence is not required (that is, it is not necessary); however, in the case of a pardon, this is necessary.
6. Administrative act or law
Generally, for a pardon to be granted, an administrative act is required, which consists of a “manifestation or declaration by a public authority in which it imposes its will on the rights of another person, as well as on his freedoms or interests of some kind”.
On the other hand, for an amnesty to be granted, a specific law is needed regarding the crimes in question and their period of annulment. Thus, an amnesty would require the “yes” of most of the deputies of Congress in order to be granted.
7. Guilt of the condemned
The last of the differences between amnesty and pardon refers to the guilt or not of the convicted person; thus, while in the pardon the person is still considered guilty , in the amnesty he is no longer guilty.
Macia, J. (2016). Amnesty and pardon. Law studies. Learn Online.
REAL ACADEMIA ESPAÑOLA (RAE): Diccionario de la lengua española, 23.ª ed., [version 23.3 online]. https://dle.rae.es [date of reference: December 12, 2019].
Requejo, J.L. (2001). Amnesty and pardon in Spanish historical constitutionalism. Constitutional history: Revista Electrónica.