According to the terms of the amnesty law, the expulsion should be annulled and the students allowed to continue with their academic lives.
Por Jose Zamyr Vega Gutierrez* (Confidencial)
HAVANA TIMES – If there’s anything in the tragic Nicaraguan reality that captures the essence of what could be called a “Kafka-esque situation” it’s the legal treatment given to the university students who participated in the anti-government protests that began in April 2018.
In reality, although some of the deputies have dedicated themselves to defending the contents and results of the Amnesty Law, the conceptual errors present in that law are so apparent that they’ve generated some paradoxical situations.
To mention one: the prohibition of “any repetition” – in view of which the beneficiaries of the amnesty should abstain from repeating the behaviors that constituted the crimes contemplated there under pain of revoking the law’s benefits – absolutely doesn’t fit in with the concept of amnesty as regulated in our legislation, since said category has the effect of terminating all responsibility and the penal action.
That is, it creates a legal status that, once applied by the judicial authorities, can’t be revoked, so that no person released under the auspices of the Amnesty Law could be returned to prison for the same events that motivated their trial or their sentence.
This is so because amnesty, a word that comes from the Greek “amnestia” and signifies “forgetting”, is an act of grace that affects the very existence of the crime. In other words, it implies that the crime is considered as never produced and the citizen should have all their rights restored.
So, given this latter fact, it’s convenient to pose a question that up until now hasn’t been answered by any government, legislative or university authority, to wit: What happens to the students expelled from their studies for having committed, hypothetically, “grave faults” in the context of the protests? Doesn’t the benefit of amnesty affect these disciplinary sanctions in the university environment?
Certainly, judging by the multiple cases of university students expelled from their careers with no previous notification and without a disciplinary process with legal guarantees, it seems evident that the field of application of the amnesty is being limited to the penal process, and is considered outside the sphere of the body administering the academic sanctions.
As a result, a contradiction indisputably arises, since from this perspective, a university student could be made exempt from the penal responsibility for crimes of special gravity, such as terrorism, but the expulsion imposed for events intimately related to that penal sentence can’t be lifted.
Clearly, something doesn’t fit, leading me to put forth some arguments that, in my judgment lead to the conclusion that the sanction of expulsion should be annulled and, as a result, the students should be allowed to continue with their academic lives.
There are those who maintain with respect to this question that it’s more a matter of justice than of legality, so that the amnestied individuals should have all of their rights restored, including the continuation of their university studies.
A similar argument put forth in favor of the students’ reintegration into their careers, is that if the basis of the disciplinary sanction revolves around the commission of a crime, and the same crime has ceased to exist per the amnesty, therefore the university sanction has been left a posteriori, with no factual base, and the revocation of the aforementioned sanction must follow.
In my opinion, there are at least four additional arguments that leave without effect the expulsion sanction: first, the general principal of the law that states “what covers the greater, covers the lesser”, so that if the amnesty covers serious crimes, it should also cover administrative infractions whose legal value is, by definition, substantially less than that of a crime.
In second place, if the events that triggered the expulsion coincide, as seems to be the case, with the events for which the students were legally tried, then we stand before an inadmissible bis in idem [from Wikipedia: a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action].
Thirdly, the Amnesty Law itself states that “the competent authorities should close any administrative processes initiated”, which could be interpreted in the sense that the “forgetting” extends to the administrative infractions.
Finally, in the area of laws that cover administration sanctions, the analogous application of the amnesty rules established in the penal legislation and process can be invoked.
*Jose Zamyr Vega Gutierrez holds a doctorate in penal law