Pardons Memo

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PARDONS:

EUROPEAN STATE PRACTICES

Legal Memorandum

March 2014


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PARDONS: EUROPEAN STATE PRACTICES

Executive Summary

The purpose of this memorandum is to compare European state practicesregarding pardons. This memorandum surveys several aspects of European states

pardon practice, including constitutional frameworks addressing pardons, limits on

the authority to grant pardons, and public reactions to historical uses of pardons.

The authority for issuing a pardon lies with the executive branch (either the head of

state or the monarch) in Belgium, Spain, Bulgaria, and Finland. Switzerland grants

its pardon issuing authority to Parliament, while Germany has a mixed executive-

legislative pardon authority. In nearly all of the states surveyed, the granting of a

pardon does not erase the underlying criminal record.

Belgiums Constitution grants the King discretion to issue pardons. TheBelgian Constitution also provides limitations and oversight mechanisms for the

pardon process. For instance, if the Supreme Court convicts a public official, the

King cannot pardon that person unless the House of Representatives or Parliament

has requested a pardon. By requiring different processes for granting pardons to

public officials as opposed to other citizens, Belgiums pardon system is different

from most states pardon processes.

Switzerlands Constitution and Criminal Code split the authority to grant

pardons between the Federal Assembly and the Cantons. The Federal Assemblyhas the authority to grant pardons for Criminal Chamber of the Federal Criminal

Court or federal administrative authority judgments. Cantons can grant pardons

when the respective Cantonal court issued the judgment. In practice, the Federal

Assembly and Cantons grant relatively few pardons and follow strict procedural

guidelines. For instance, the Federal Assembly demands justification beyond the

personal hardships of the applicant. As a result, Switzerland has had few public

scandals relating to the pardon process.

Germanys legal framework allows pardons for individuals and for groups of

individuals convicted under the same criminal statute. The German Constitutionsplits the pardon authority between the Federation and the Lnder. Germany

maintains few limitations and oversight mechanisms for the pardon process. For

instance, the Presidents only restriction for granting pardons is that he or she may

only grant a pardon for federal offenses. The practice of pardons in Germany has

occasionally caused scandals. For instance, one German President has been

criticized for considering pardoning an infamous criminal.


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Spains Constitution authorizes the King of Spain to grant pardons. Pardons

may be total, partial, or they can reduce the individuals sentence. The

Constitution provides limitations through relevant laws that control the pardon

process. For instance, the King cannot pardon the President or other members ofgovernment if they are convicted with criminal offenses. To provide for

transparency, pardons are published in a public journal. Spanish authorities grant a

comparatively large number of pardons, and have been criticized publicly for

pardoning individuals for seemingly political motives.

The Bulgarian Constitution gives the President the power grant a pardon at

his or her discretion. A pardon is considered an act of clemency and constitutes an

unconditional and final decision of the state not to impose a sentence that has

entered into force. Although the ultimate authority of the head of state to grant or

deny a pardon is largely unchecked, other government officials often provide aninitial review of the pardon package and make recommendations to the head of

state. For instance, Bulgaria has a Presidential Pardon Committee, which is

comprised of experts in criminal law, psychology, and criminology and is

responsible for organizing meetings and holding hearings to review pardon

applications. Bulgarias pardon system has led to widespread accusations of

corruption, cronyism, and political abuse.

The Finnish Constitution provides the Finnish President with the power to

grant pardons. In Finland, pardons are limited to criminal offenses or penalties andcannot be granted for civil or public law offenses. Even if a pardon is granted, the

individual will still have the crime on his or her record. The President acts on his

or her own discretion when granting pardons. Because Finnish Presidents rarely

grant pardons, however, the Finnish public does not view the current pardon

process as controversial.


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Table of Contents

Statement of Purpose 1

Introduction 1

Belgium 2

Issuing Authority 2

Limitations and Oversight 3

Pardon Practice and Public Perception 4

Lessons Learned 6

Switzerland 7

Issuing Authority 7

Limitations and Oversight 9Pardon Practice and Public Perception 9

Lessons Learned 10

Germany 10

Issuing Authority 10



Lessons Learned 13

Spain 14




Lessons Learned 16

Bulgaria 17



Pardon Practice and Public Perception 20Lessons Learned 20

Finland 21





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Lessons Learned 25

Conclusion 25


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Pardons: European State Practices, March 2014

1

PARDONS: EUROPEAN STATE PRACTICES

Statement of Purpose

The purpose of this memorandum is to compare European state practicesregarding pardons. This memorandum surveys several aspects of European states

pardon practice, including constitutional frameworks addressing pardons, limits on

the authority to grant pardons, and public reactions to historical uses of pardons.

Introduction

Most jurisdictions around the world include a power to pardon.1 Some

states, such as Belgium, rarely use pardons, while other states, such as Spain and

Bulgaria, regularly use pardons. The term pardon derives from the Latin word

perdonare (to grant freely), suggesting a gift bestowed by a sovereign.2 Thus,pardons have the connotation of somewhat personal concessions by a head of state

to the perpetrator of an offense.3 During the 18th century, a sovereigns power to

grant pardons in individual cases came under attack.4 Skeptics perceived

permitting a sovereign to interfere with the implementation of laws as a threat to

the concept of separation of powers.5 They viewed the pardon as a source of

uncertainty and an opportunity for corruption and abuse.6 Such political favors can

create the impression that pardons are given as patronage or because of back-room

deals, thereby weakening a states governance and accountability.

Although European states vary on the specific issuing authority, most

jurisdictions vest the power to pardon in the head of state.7 Other states, such as

Switzerland and Germany, do not use their heads of state as the sole decision

maker for pardons. Regardless of the issuing authority, many states use their

respective constitutions, legislation, or both to limit the issuing authoritys power

and to provide oversight mechanisms for the pardon process. Without oversight,

pardoning power is left unchecked, except perhaps through the democratic process

1Leslie Sebba, The Pardoning Power: A World Survey, 68 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY83, 84-111 (1977), available at

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6010&context=jclc.2Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE56-59 (2002).3Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE56-59 (2002).

4Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE56-59 (2002).5Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE56-59 (2002).

6Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE56-59 (2002).

7Leslie Sebba, The Pardoning Power: A World Survey, 68 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY83, 111

(1977), available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6010&context=jclc.


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in the next election cycle. Nevertheless, because the power to pardon is an

exception within the separation of powers principle,8the decision to pardon often

takes into consideration the interests of the other two branches of power, is

reasonably comprehensible, and is often exercised in accordance with the

principles of the penal system.

9

Several states have created initiatives to increase transparency and better

inform the public of the pardon process. For instance, Bulgaria has organized

seminars and conferences to educate Bulgarian society about the institution of

pardons.10

Spain publishes information about requesting a pardon on its Ministry

of Justice website, and the application process itself is informal and does not

require the specialized knowledge of a lawyer.11

Such initiatives lead to more

transparency, while also increasing the accessibility of pardons.

Belgium

Belgiums Constitution provides the legal basis for the Belgian Kings right

to pardon, as well as for some minimal limitations regarding granting pardons for

public officials. Belgiums pardon process is widely accessible, and can be

initiated by either the convicted individual or an interested party. Nevertheless, the

number of pardons granted has decreased over time. Despite the decreased use of

pardons, critics remain concerned about the disproportionate distribution of

pardons between the Regions.

Issuing Authority

Pursuant to the Belgian Constitution, the right to pardon is vested only in the

King of Belgium.12

The King has the right to dismiss or reduce sentences that

8Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL339, 341 (2004),

available athttp://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339-

346_Public_Kellner.pdf.9Roman Herzog,Art. 60, in GRUNDGESETZ-KOMMENTAR, para. 38 (Brun-Otto Bryde, Manfred Gubelt, and Ingo

Von Munch, eds.,6th ed., 2012).10President of the Republic of Bulgaria, Decree No. 80 of the President of Bulgaria setting forth the Rules of

Procedure of the Committee on Pardonsart. 8 (Feb. 23, 2012), available in Bulgarian athttp://www.president.bg/docs/1351452736.pdf.11

Minister of Justice,Personal Formalities and Procedures: Pardon Application(last visited Jan. 20, 2014),

available at http://www.mjusticia.gob.es/cs/Satellite/en/1200666550200/Tramite_C/1215326296688/Detalle.html.12

BELGIUM CONST. art. 110 (1994), available at

http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.


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judges have issued against individuals.13

This right to dismiss or reduce sentences

is commonly referred to as droit de grce.14

Limitations and Oversight

Belgium has a number of limitations and oversight mechanisms for the

power of pardon, particularly regarding the Kings ability to pardon public

officials. For instance, if the Supreme Court has convicted a minister or member

of a Community or Regional government, then the King cannot issue a pardon

unless the House of Representatives or the respective Parliament has submitted a

pardon request.15

Similarly, in order to receive a request for pardon from the

respective Community or Regional government, a member of a Community or

Regional Government who committed an offense must have been acting within the

scope of his or her duties.16

Belgium also maintains administrative mechanisms that provide some

oversight for the pardon process. Requests for a droit de grcemay be sent to the

attention of the King, the Ministry of Justice, or directly to the Ministrys specific

department handling pardon requests the Service des Grces.17

Regardless, an

agent of the Ministry of Justice analyzes the driot degrcerequest.18

Then, the

agent gives his or her analysis and opinion on the matter to both the head of the

Service des Grcesand to the head of the Directorate General of Legislative and

Fundamental Rights and Liberties.19

Both department heads submit their opinion

on the pardon requests to the Attorney Generals offices for further review, and theAttorney General issues an opinion.20

The driot degrcerequest is then

transferred to the Minister of Justice along with the previously mentioned opinions,

the relevant court judgment, the individuals criminal record, and a report on the

13BELGIUM CONST. art. 110 (1994).

14BELGIUM CONST. art. 110 (1994).

15BELGIUM CONST. arts. 103. 111 (1994).16BELGIUM CONST. art. 125 (1994).

17Ministry of Justice, Grace(last accessed Jan. 20, 2014), available in French athttp://justice.belgium.be/fr/themes_et_dossiers/jugement_penal_et_consequences/grace/.18Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),

available in French at http://www.sudinfo.be/824041/article/actualite/belgique/2013-10-01/grace-royale-le-roi-

gracie-de-moins-en-moins-de-condamne.19Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),


gracie-de-moins-en-moins-de-condamne.20

Ministry of Justice, Grace(last accessed Jan. 20, 2014), available in French at

http://justice.belgium.be/fr/themes_et_dossiers/jugement_penal_et_consequences/grace/.


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individuals behavior while detained (if applicable).21

The Minister of Justice

provides his or her conclusions to the King, who then makes the final decision.22

Ultimately, the King makes each final decision based on the facts of the

individual case. For instance, according to the Service des Grces, a pardon maybe granted in instances where new light is shed on facts that were unknown or

insufficiently addressed at the time the sentence was rendered.23

Other factors

taken into consideration include whether the individual has taken steps towards

redemption since the conviction, whether there was a delay between conviction

and the start of a punishment, and whether the individual was unlawfully detained

prior to his or her conviction.24

The Kings decision is contained in a signed Royal

Decree,25

which is countersigned by the Minister of Justice.26

The King, however,

is under no obligation to provide his rationale for granting or denying a pardon

request.27

Practice and Public Perception

Traditionally, droit de grceswere granted collectively at major public

events, such as the Kings birthday or the anniversary of the Kings accession to

the throne. In recent history, the King issued eight collective droit de grces

between the years 1980 and 1993.28

However, this practice is not used very

often.29

The last collective pardon was granted on August 9, 1993.30

Today, the

21Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),


gracie-de-moins-en-moins-de-condamne.22Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),

available in French at http://www.sudinfo.be/824041/article/actualite/belgique/2013-10-01/grace-royale-le-roi-gracie-de-moins-en-moins-de-condamne.23

RTBF Info,Le Roi a Octroy 53 Graces en 2012(Jan. 18, 2013), available in French at

http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152.24


http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152.25French Senate,Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at

http://www.senat.fr/lc/lc177/lc177.pdf.

26French Senate,Le Amnistie Et La Grace, 18 (Oct. 2007), available in French athttp://www.senat.fr/lc/lc177/lc177.pdf.27French Senate,Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at

http://www.senat.fr/lc/lc177/lc177.pdf.28

The Bulletin,No Collective Pardon from King Philippe (Jul. 23, 2013), available athttp://www.xpats.com/no-collective-pardon-from-king-philippe.29

French Senate,Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at





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King typically grants droit de grcesto individuals, rather than general classes of

persons convicted for similar offense.31

Either the convicted individual or an interested party may request a driot de

grce.

32

These requests are examined on a case-by-case basis.

33

The dismissal orreduction of a sentence can be issued to an individual whose sentence is not subject

to further appeal.34

These individuals can (i) have the execution of their sentence

waived entirely or partially; (ii) have the sentence reduced or modified for their

benefit; or (iii) be granted parole.35

In each scenario, however, the sentence

remains in the individuals criminal records. Additionally, the droit de grce can

be granted subject to conditions, such as compensation of the victim, public

interest work, training, or rehabilitation obligations.36

The practice of pardons in Belgium is declining.37

Between 2000 and 2005,

the Service des Grcesreceived an average of 2,000 pardon requests each year.38Between 2003 and 2005, however, the King granted only one partial remission of

an inmates sentence and 550 pardon measures for non-detained criminals.39

Recently, the number of pardons granted has declined even further. For instance,

in 2012, the King granted approximately 5.5 percent (53 out of 955 requests).40

31French Senate,Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at

http://www.senat.fr/lc/lc177/lc177.pdf.32French Senate,Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at

http://www.senat.fr/lc/lc177/lc177.pdf.33Ministry of Justice, Grace(last accessed Jan. 20, 2014), available in French at

http://justice.belgium.be/fr/themes_et_dossiers/jugement_penal_et_consequences/grace/.34



Ministry of Justice, Grace(last accessed Jan. 20, 2014), available in French at

http://justice.belgium.be/fr/themes_et_dossiers/jugement_penal_et_consequences/grace/.36French Senate,Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at

http://www.senat.fr/lc/lc177/lc177.pdf.37Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),



French Senate,Le Amnistie Et La Grace, 18 (Oct. 2007), available in French athttp://www.senat.fr/lc/lc177/lc177.pdf.39




http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152.


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During the first half of 2013, only 14 pardons were granted.41

Royal Decrees

waiving the entirety of a sentence also remain rare.42

Although the pardon has been used less frequently in recent years, critics

remain concerned about the unequal distribution of pardons between BelgiumsRegions. Approximately 77 percent of the Kings pardons have been granted to

Walloons, while only 23 percent were granted to Flemish individuals.43

Because

of this unequal distribution of pardons between Regions and as part of a larger

effort to modernize the Belgian monarchy, the Belgian people are contemplating

abolishing the Kings right to pardon altogether.44

A bill was introduced to that

effect in November 2010.45

There is no indication, however, that the parliamentary

process has made much progress on abolition since 2010.

Lessons Learned

The Kings right to grant pardons is almost unfettered. The King is not

bound by recommendations from the Service des Grcesand the Attorney

Generals office.46

The only statutory limitation is with respect to pardons of

public officials, which must be requested by the relevant legislative body. On the

other hand, the administrative practice by which several officials review and opine

on pardon requests does provide a limited check on the Kings otherwise expansive

pardon authority. Despite the minimal limitations on the pardon process, the

practice of pardons in Belgium has decreased significantly since the early 2000s.47


http://www.senat.fr/lc/lc177/lc177.pdf. 42



Le Vif, LOpen Vld Veut Abolir le Droit de Grace(Nov. 29, 2010), available in French at

http://www.levif.be/info/actualite/belgique/l-open-vld-veut-abolir-le-droit-de-grace/article-1194879415362.htm.44Tomas Jivanda,King of Belgium Has Used Powers to Pardon 11 People for Driving Offences in Just Five

Months, THE INDEPENDENT(Dec. 4, 2013), available at http://www.independent.co.uk/news/world/europe/king-of-

belgium-has-used-powers-to-pardon-11-people-for-driving-offences-in-just-five-months-8983098.html; RTBF Info,Le Roi a Octroy 53 Graces en 2012 (Jan. 18, 2013), available in French at

http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152.45Le Vif, LOpen Vld Veut Abolir le Droit de Grace(Nov. 29, 2010), available in French at

http://www.levif.be/info/actualite/belgique/l-open-vld-veut-abolir-le-droit-de-grace/article-1194879415362.htm.46Didier Swysen, Grace Royale: le Roi Gracie de Moins en Moins de Condamns, SUDINFO(Oct. 2, 2013),




http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152.


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Switzerland

Switzerlands Constitution and the Criminal Code provide the legal

framework for Switzerlands pardons process. The Swiss Criminal Code provides

that the Federal Assembly can grant pardons when the Criminal Chamber of theFederal Criminal Court or a federal administrative authority issued judgment.

Cantons can grant pardons when the respective Cantonal court issued the

judgment. The respective pardon authority can grant whole or partial pardons, as

well as reduce sentences. The Swiss pardon process is broadly accessible. In

addition to the convicted person, several different individuals and entities may

request a pardon on behalf of the convicted person. In practice, however, pardons

are rarely applied for or granted, either at the Federal or Canton level.

Issuing Authority

Pursuant to the Swiss Constitution and the Swiss Criminal Code, the right to

pardon is shared between the Federal Assembly and the Swiss Cantons. The Swiss

Federal Constitution grants the right to pardon to the Swiss Federal Parliament,

known as the Federal Assembly.48

The Constitution also provides the Federal

Assembly with the authority to issue pardons and amnesties.49

The two houses of

the Federal Assembly share this authority.50

The two houses are the Council of

States (representing the Swiss Cantons) and the National Council (elected directly

by and representing the Swiss people).51

The Swiss Criminal Code allows the Federal Assembly to grant pardons in

cases in which the Criminal Chamber of the Federal Criminal Court or an

administrative authority of the Confederation passed judgment.52

The Criminal

Code also establishes the basic procedure for the pardon application.53

For

instance, the convicted individual, his/her legal representative, or, with permission,

his/her spouse or registered partner may file the pardon request. Additionally, if

48SWITZERLAND CONST. art. 173 (1999), available athttp://www.admin.ch/ch/e/rs/1/101.en.pdf.49SWITZERLAND CONST. art. 173(k) (1999), available athttp://www.admin.ch/ch/e/rs/1/101.en.pdf.50

SWITZERLAND CONST. art. 157 (1999), available athttp://www.admin.ch/ch/e/rs/1/101.en.pdf.51SWITZERLAND CONST. art. 157 (1999), available athttp://www.admin.ch/ch/e/rs/1/101.en.pdf.52

Criminal Codeart. 381 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified-

compilation/19370083/index.html.53


compilation/19370083/index.html.


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the individual is a public official, the Federal Council or the respective Canton

government may initiate a pardon request.54

The Commission for Pardons is the authority that grants pardons in the

Federal Assembly. In the event the pardon is requested with respect to a crimefalling within the Federal Assemblys legal authority, the Federal Assemblys

Commission for Pardons examines the request and issues a recommendation to the

Assembly.55

The Commission for Pardons is composed of twelve members from

the National Council and five members from the Council of States.56

The head of

the Commission for Pardons alternates between a member of the National Council

and a member of the Council of States.57

The Criminal Code also provides the Cantons with authority to grant

pardons in cases in which a Cantonal authority issued the judgment.58

Although

each Canton individually determines where to vest the right to pardon, most vestthe pardon authority in their respective Parliaments.

59 Often, the Cantons justice

commission will process the request. In special cases and in large Cantons, a

dedicated pardon commission will process the request.60

When a dedicated pardon

commission processes the request, the Cantons parliament delegates power to the

pardon commission to grant pardon for misdemeanor offenses.61

In a few Cantons,

the Cantons executive branch exercises the right to pardon.62

54Criminal Codeart. 382 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified-

compilation/19370083/index.html.55Federal Act on the Federal Assemblyart. 40 (Switzerland, 2002), available at

http://www.admin.ch/ch/e/rs/171_10/a40.html.56

Swiss Federal Assembly, Committee on Pardons(last visited Jan. 20, 2014), available at

http://www.parlament.ch/e/organe-mitglieder/kommissionen/weitere-

kommissionen/begnadigungskommission/Pages/default.aspx.57Federal Act on the Federal Assemblyart. 40 (Switzerland, 2002), available at

http://www.admin.ch/ch/e/rs/171_10/a40.html.

58Criminal Codeart. 381 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified-compilation/19370083/index.html.59French Senate,Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at








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Switzerland has established few limitations or oversight mechanisms for its

pardon process. However, the Criminal Code does require the pardon decree to

specify the extent of a pardon.

63

It also limits the effects of a pardon to whole orpartial remittance of sentence or a reduction in the severity of the sentence.64

Switzerland has also established an administrative review mechanism that

provides limited oversight over the pardon process. The pardon review process

begins in the Commission for Pardons within the Federal Assembly. The

Commission for Pardons reviews the investigation files, the court proceedings, and

the execution of the judgment.65

The Commission for Pardons then submits a

report and recommendation to the Federal Council.66

Under the direction of the

National Councils president, the Federal Assembly takes a majority vote on

whether to grant the pardon application.67


Few pardon requests are filed in Switzerland. Between 1999 and 2003, three

requests for pardon were filed at the Federal level, and the Federal Assembly

granted only one of these pardons.68

At the Cantonal level, the pardon practice

varies. In 2005, 48 requests were filed in Geneva Canton whereas only four were

filed in Bern Canton.69

Public information regarding the pardon applications considered by the

Cantons is sparse, but it appears that the Cantons apply relatively stringent criteria

in the pardon review process. The difficult personal circumstances of an inmate,

63Criminal Codeart. 383 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified-

compilation/19370083/index.html.64


compilation/19370083/index.html.65Swiss Federal Assembly, Committee on Pardons(last visited Jan. 20, 2014), available at

http://www.parlament.ch/e/organe-mitglieder/kommissionen/weitere-kommissionen/begnadigungskommission/Pages/default.aspx.66Federal Act on the Federal Assemblyart. 40 (Switzerland, 2002), available at








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by themselves, are not considered sufficient to justify granting a pardon.70

For

instance, in August 2013, the Geneva Cantonal Council refused to grant a partial

pardon to a 90 year-old inmate who was on his eighth year of a ten-year sentence

for rape, despite his suffering from cancer and dementia.71

Lessons Learned

Unlike the other states compared, Switzerland gave the right to grant

pardons to the legislative branch.72

For efficiency purposes, pardon requests

undergo a sequential process: (1) the initial review and recommendation by a

dedicated commission within the relevant parliament, and (2) a decision whether or

not to pardon made by a majority of votes from the representatives of the relevant

parliament.73

Given the legislatures prominent role in the pardon process, the

stringent criteria used to consider applications, and the low number of applications

considered and granted, the Swiss pardon process is less likely to experience thepopular criticisms levied at other states pardon processes.

Germany

Germany allows pardons for both individuals and groups of individuals

sentenced for the same or similar crimes. Although Germanys Constitution

provides the legal framework for pardons, it establishes few limitations or

oversight mechanisms for the pardon process. Pardons are not generally

announced publically, though some recent high-profile stories have leaked to thepublic and led to public controversy.

Issuing Authority

Germany utilizes two methods for issuing pardons. One method involves an

executive pardon in individual cases, and the other method, also known as

70Raphal Leroy,Pas de grce pour le plus vieux dtenu de Suisse, 20MINUTES(Sept. 19, 2013), available in

French at http://www.20min.ch/ro/news/geneve/story/13366713.71Raphal Leroy,Pas de grce pour le plus vieux dtenu de Suisse, 20MINUTES(Sept. 19, 2013), available in

French at http://www.20min.ch/ro/news/geneve/story/13366713.72Federal Act on the Federal Assemblyart. 40 (Switzerland, 2002), available at


Swiss Federal Assembly, Committee on Pardons(last visited Jan. 20, 2014), available at

http://www.parlament.ch/e/organe-mitglieder/kommissionen/weitere-

kommissionen/begnadigungskommission/Pages/default.aspx.


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amnesty, involves a legislative pardon for broad categories of cases.74

Individual

executive pardons can be granted at two different levels of government. The

German President, acting on behalf of the German state, has the authority to grant

pardons.75

In addition, each of the Lnder, typically the heads of Lnder

governments, has the authority to issue pardons.

76

The two-tiered approach topardon issuing authority results from the federalist legal system of Germany.77

Germany splits the authority for issuing individual pardons between the

German state and the sub-state Lnder. Although the German Constitution

provides the German President with the power to pardon, the German Code of

Criminal Procedure specifies that the Presidents power to pardon is limited to

those individuals convicted in Federal courts at the first instance.78

The individual

Lnder handle all other individual matters not in the first instance.79

In practice,

this limits the German Presidents pardon power to a small sphere of criminal

matters, including espionage, terrorism, and disciplinary proceedings againstfederal civil servants (including federal judges and soldiers).

80 Each individual

Lnder administers pardons for all other criminal matters.81

Germany has established few procedural requirements for individuals

applying for a pardon. Any person convicted in a Federal court by a final

judgment may submit a pardon request.82

The plea does not have to be submitted

by a legal representative, and it only has to claim that the further execution of the

prison sentence would entail an unreasonable hardship beyond the purposes of the



GERMANY CONST.art. 60 (1949), available at http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0012.76

Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL339, 341

(2004), available athttp://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339-

346_Public_Kellner.pdf.77

Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL339, 340


346_Public_Kellner.pdf.

78The first instance court is the court where evidence is first admitted and considered; Code of Criminal Procedureart. 452 (Germany, 1987), available at http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p2512.79Code of Criminal Procedureart. 452 (Germany, 1987), available at http://www.gesetze-im-

internet.de/englisch_stpo/englisch_stpo.html#p2512.80







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sentence.83

In deciding whether to grant a pardon, the relevant pardon issuing

authority has the right to entirely or partially waive the penalty, amend the penalty,

or suspend the execution of a sentence.84

The verdict containing the conviction,

however, remains unaltered. Although the granting of a pardon is an executive

exercise in the judicial sphere, the pardon functions as a counterpart of punitivejustice in order to balance undue hardship and to eliminate inequities.85

The Lnder may also grant pardons. Because the Lnder are responsible for

administering the non-federal criminal courts, the Lnder have the discretion to

grant pardons to those convicted in non-federal criminal courts.86

Each Lnder

makes an individual decision regarding the responsible pardon issuing authority.87

In most Lnder, however, the head of the Lnders executive branch exercises the

power to pardon. This is the practice in Bavaria,88

North Rhine-Westphalia,89

Thuringer,90

and Lower Saxony.91


Germany maintains few limitations on the authorities to grant pardons. One

limitation is that the German President can only pardon individuals, as compared to

the King of Belgium who can pardon classes of convicted individuals en mass.92

The split of pardon issuing authority between the German state and the Lnder


http://www.senat.fr/lc/lc177/lc177.pdf.84Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL339, 340


346_Public_Kellner.pdf.85Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL339, 340


346_Public_Kellner.pdf.86

Code of Criminal Procedureart. 452 (Germany, 1987), available at http://www.gesetze-im-

internet.de/englisch_stpo/englisch_stpo.html#p2512.87French Senate,Le Amnistie Et La Grace, 13 (Oct. 2007), available in French at


88BAVARIA CONST.art. 47 (Germany, 1946), available at http://www.taxi-muenchen-online.de/programme/bavarian_const.pdf.89NORTH RHINE-WESTPHALIA CONST. art. 59 (Germany, 1952), available at

https://www.landtag.nrw.de/portal/WWW/GB_II/II.1/OeA/International/en/North_Rhine_Westphalia_Constitution_

revised.jsp.90THURINGER CONST. art. 78 (Germany, 1993), available in German at http://www.thueringer-

landtag.de/apps/Publikationen/pic/pubdownload3.pdf.91

LOWER SAXONY CONST. art. 36 (Germany, 1993), available athttp://www.landtag-

niedersachsen.de/ltnds/download/21561/nds_verfassung_englisch.pdf.92

GERMANY CONST.art. 60 (1949).


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13

provides another limit to the use of the pardon power.93

The only other oversight

mechanism for the German pardon system is public opinion, and the resulting re-

election pressure faced by those with the authority to grant pardons.


There are no statistics about the number of pardon pleas submitted in

Germany or about their rate of success. Additionally, the rationale behind a

decision on whether or not to grant a pardon is typically not made public.

However, a few pardon requests have been discussed in public. The most notable

recent example of a Federal Presidents decision on a grant of pardon is Christian

Klars 2007 pardon request.94

Klar was convicted and sentenced to multiple life

sentences for his participation in attacks and killings carried out by the Red Army

Faction organization in the 1970s and early 1980s.95

In 2003, after over 20 years

in prison, Klar submitted a pardon request to then-Federal President Johannes Rau,who declined to make a decision.

96 President Raus successor, President Horst

Koehler, considered the request and faced opposition from the public and the

leading political parties in Germany.97

Ultimately, President Koehler denied Klars

request.98

This instance highlights the broad discretion of the German President

and demonstrates that the only counterweight to the presidential pardon power in

Germany is negative public publicity.99

Lessons Learned

In Germany, the Presidents pardon power is restricted to individual federal

offenses and federal administrative claims. Beyond these restrictions, the

Presidents pardon power is largely unrestrained. This nearly unchecked power to

pardon caused the public and political turmoil in 2007, when the then-President

93See GERMANY CONST.art. 60 (1949); Code of Criminal Procedureart. 452 (Germany, 1987), available at

http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p2512.94Deutsche Welle, German President to Decide on Pardon for RAF Terrorist Klar(May 5, 2007), available at

http://www.dw.de/german-president-to-decide-on-pardon-for-raf-terrorist-klar/a-2474572.

95Deutsche Welle, German President to Decide on Pardon for RAF Terrorist Klar(May 5, 2007), available athttp://www.dw.de/german-president-to-decide-on-pardon-for-raf-terrorist-klar/a-2474572.96Stephanie Kirchner, Germany Still Haunted By its Homegrown Terrorists, TIME, Nov. 26, 2008, available at

http://content.time.com/time/world/article/0,8599,1862327,00.html#ixzz2kM92uNG0.97

Deutsche Welle, Statement by Convicted Terrorist Casts Doubt on Pardon(Feb. 26, 2007), available at

http://www.dw.de/statement-by-convicted-terrorist-casts-doubt-on-pardon/a-2366065.98

Patrick Donahue, German President Denies Pardon to RAF Terrorist Klar, BLOOMBERG(May 7, 2007), available

at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aFyHYRdCHfR8.99

Patrick Donahue, German President Denies Pardon to RAF Terrorist Klar, BLOOMBERG(May 7, 2007), available

at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aFyHYRdCHfR8.


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considered a pardon in the controversial case of Christian Klar.100

The Klar case

highlights the potential for unrest and discontent when the power to pardon is

granted to an individual office without either mandatory oversight mechanisms or

the possibility of review.

Spain

The Spanish Constitution establishes the legal authority to grant pardons. In

Spain, pardons may be total, partial, or provide a reduction in the individuals

sentence. The Constitution also includes provisions that limit the authority to grant

pardons. For instance, the King cannot pardon the President or other members of

government if they are charged or sentenced with criminal convictions.101

To

provide for transparency, pardons are published in a public journal. The King

regularly grants pardons, a practice that can cause negative press when pardon

decisions are questioned by public officials or the media.

Issuing Authority

The Spanish Constitution authorizes the King of Spain to grant individual

pardons, but not general pardons, in accordance with the law.102

The procedural

rules relating to the grant of pardons are set out in the Rules for the Exercise of the

Grace of Pardon.103

Pardons are granted by royal decree and are published in the

official public journal in Spain, theBoletn Oficial del Estado.104

Under Spains legal framework regulating pardons, pardons can be total,

partial, or involve a reduction or modification of a sentence.105

A total pardon

involves reprieve from all of the convicted individuals sentences or penalties.106

100Deutsche Welle, German President to Decide on Pardon for RAF Terrorist Klar(May 5, 2007), available at

http://www.dw.de/german-president-to-decide-on-pardon-for-raf-terrorist-klar/a-2474572.101SPAIN CONST.art. 102 (1978), available at

http://www.tribunalconstitucional.es/es/constitucion/Paginas/ConstitucionIngles.aspx.

102SPAIN CONST.art. 62(i) (1978), available athttp://www.tribunalconstitucional.es/es/constitucion/Paginas/ConstitucionIngles.aspx.103Rules for the Exercise of the Grace of Pardon(Spain, 1870 as amended), available in Spanish at

http://noticias.juridicas.com/base_datos/Penal/lregi.html.104

Rules for the Exercise of the Grace of Pardon(Spain, 1870 as amended), available in Spanish at


Rules for the Exercise of the Grace of Pardonart. 30 (Spain, 1988), available in Spanish at



available at http://www.mjusticia.gob.es/cs/Satellite/en/1200666550200/Tramite_C/1215326296688/Detalle.html.


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15

A partial pardon provides remission from only part of a sentence.107

In either

situation, the pardon will affect the sentence, but it will not annul or otherwise

affect any civil liability associated with the crime.108

Spains pardon system allows multiple individuals to request a pardon forthe convicted individual. Any person who has been convicted of an offense and

has received a final sentence is eligible to apply.109

This convicted individual,

another person on his/her behalf, the court, the public prosecutor, and the Spanish

government are authorized to request a pardon.110

The petitioner must send the

pardon request, which contains all information regarding the individual and the

case, to the Ministry of Justice.111

Once the Ministry of Justice has compiled the

materials for the application, it presents the complete application to the Cabinet.112

If the Cabinet approves the application, the Ministry of Justice will present it to the

King and recommend that he grant the pardon.113


The Spanish Constitution includes several limitations regarding the pardon

process. First, the right of pardon must be exercised in accordance with the

law.114

Second, the law does not allow for general pardons.115

The Constitution

does not define the scope of these limitations. However, the prohibition against

general pardons likely refers to collective pardons, and thereby only permits

individual pardons under Spanish law.116

In addition, the Constitution expressly

107Minister of Justice,Personal Formalities and Procedures: Pardon Application(last visited Jan. 20, 2014),




Rules for the Exercise of the Grace of Pardonart. 2 (Spain, 1988), available in Spanish at

http://noticias.juridicas.com/base_datos/Penal/lregi.html.110Minister of Justice,Personal Formalities and Procedures: Pardon Application(last visited Jan. 20, 2014),


111Minister of Justice,Personal Formalities and Procedures: Pardon Application(last visited Jan. 20, 2014),available at http://www.mjusticia.gob.es/cs/Satellite/en/1200666550200/Tramite_C/1215326296688/Detalle.html.112French Senate,Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at



SPAIN CONST.art. 62 (1978).115

SPAIN CONST.art. 62 (1978).116




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provides that the King may not pardon the President or other members of

government if a court holds them criminally liable.117

The Rules for the Exercise of the Grace of Pardons specify two public policy

conditions for an individual to obtain a pardon. First, the grant of the pardon mustnot cause harm to any third party or their rights.118

Additionally, the pardon

process must allow the offended third party to present his or her grievances during

the process.119


Pardons are granted regularly in Spain and can be controversial. The King

grants between 250 and 500 pardons each year.120

With a comparatively large

number of persons being pardoned each year and a transparent pardon process, the

public has more opportunity to protest against specific pardons. In 2012, forinstance, 200 magistrates from across Spain signed a statement protesting the

pardon of four police officers that had misidentified and tortured a Romanian

residing in Spain.121

The pardons angered the magistrates because the policemens

cases lacked mitigating factors, and because the Spanish government had been

criticized by the European Union for failing to investigate such cases.122

Lessons Learned

The Spanish pardon process includes efforts to ensure that individualapplicants can access the pardon process. All of the information relating to the

process for making a pardon application is accessible on the Ministry of Justice

website.123

This accessibility creates an impression of transparency about the

availability of pardons and about the process for obtaining them. Additionally, the

pardon application process is fairly straightforward and involves few formalities.

117SPAIN CONST.art. 102 (1978).

118Rules for the Exercise of the Grace of Pardonart. 15 (Spain, 1988), available in Spanish at

http://noticias.juridicas.com/base_datos/Penal/lregi.html.

119Rules for the Exercise of the Grace of Pardonart. 15 (Spain, 1988), available in Spanish athttp://noticias.juridicas.com/base_datos/Penal/lregi.html.120French Senate,Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at


El Pais,Judges Angered by Pardons for Policemen Convicted of Torture(Nov. 30, 2012), available at

http://elpais.com/elpais/2012/11/30/inenglish/1354293134_880372.html.122

El Pais,Judges Angered by Pardons for Policemen Convicted of Torture(Nov. 30, 2012), available at

http://elpais.com/elpais/2012/11/30/inenglish/1354293134_880372.html.123




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For instance, the application can be made by the individual seeking the pardon or

by a family member; it does not need to be drafted by a lawyer.124

The lack of oversight over the Kings decision to pardon could lead to abuse

and controversial decisions.

125

However, the existence of explicit provisionswithin the Rules for the Exercise of the Grace of Pardons protect the interests of

third parties and require a forum for their grievances, thereby providing a limited

check on potential excesses within the pardon process.

Bulgaria

The Bulgarian Constitution provides the legal basis for the Bulgarian pardon

process. In Bulgaria, the pardon is considered an act of clemency, and it

constitutes the states unconditional and final decision not to impose a sentence

that has entered into force. Bulgaria has established four goals for its pardonprocess. The first goal is to apply principles of justice.

126 The second is to serve as

a means of rehabilitation for the convicted.127

The third is to limit the repressive

nature of punishment.128

The final goal is to serve as a means for developing

international relations.129

Despite the laudable goals of the Bulgarian pardon

process, the lack of oversight within Bulgarias pardon system has led to criticism

of officials seen as using pardons for political purposes.

Issuing Authority

The Bulgarian Constitution vests a delegable right to pardon in the Bulgarian

President.130

The President can,131

and often does, delegate the pardon authority to

the Vice President.132

The pardon itself is issued in the form of a presidential (or

vice presidential) decree.133

The Constitution does not subject the Presidents right

124Minister of Justice,Personal Formalities and Procedures: Pardon Application(last visited Jan. 20, 2014),

available at http://www.mjusticia.gob.es/cs/Satellite/en/1200666550200/Tramite_C/1215326296688/Detalle.html.125El Pais,Judges Angered by Pardons for Policemen Convicted of Torture(Nov. 30, 2012), available at

http://elpais.com/elpais/2012/11/30/inenglish/1354293134_880372.html.

126Ivan Nenov, CRIMINAL LAW OF BULGARIA,GENERALITIES(1992).127Ivan Nenov, CRIMINAL LAW OF BULGARIA,GENERALITIES(1992).128Ivan Nenov, CRIMINAL LAW OF BULGARIA,GENERALITIES(1992).129Ivan Nenov, CRIMINAL LAW OF BULGARIA,GENERALITIES(1992).130

BULGARIA CONST. art. 98 (1991), available athttp://www.vks.bg/english/vksen_p04_01.htm.131BULGARIA CONST. art. 103 (1991).132

Novinite,Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinions of Advisors (Feb. 27,

2012), available at http://www.novinite.com/view_news.php?id=137044.133

Novinite,Bulgarian Vice President Granted 1st Pardon (May 7, 2012) available at

http://www.novinite.com/view_news.php?id=139119.


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to pardon to further legislation and with the exception of the relevant provisions

of the Bulgarian Penal Code, no statutes affect the pardon process.134

The Bulgarian pardon process only recognizes individual pardons.135

It is

possible, however, to pardon more than one person with the same decree.

136

Additionally, a pardon can be complete or partial.137

A partial pardon decreases

the term of imprisonment or the size of the fine.138

If the same pardon applicant

has committed several crimes, the pardon may be limited to only one of the crimes

or punishments.139

Pardons have been granted in situations where a portion of the

prison time has been served, as well as in situations where the prison term has not

yet commenced.140


Bulgaria maintains only minimum limitations and oversight over the pardonprocess. Only the Constitution limits the Presidents exercise of the right to

pardon. For instance, the Constitution provides that the President cannot act

arbitrarily and unreasonably.141

In fact, the Constitutional Court has held that a

presidential decree granting a pardon is not subject to review by any other

governmental body.142

Because the basis for the Presidents pardon power is the

Constitution, the legislature cannot modify or condition it without a constitutional

amendment.143

Additionally, the Presidents pardon decrees do not have the status

of administrative acts under Bulgarian law, and thus they are not subject to the

review and appeal procedure set forth in the Law on Administrative Acts.

144

134Criminal Codeart. 74 (Bulgaria, 1968), available athttp://www.vks.bg/english/vksen_p04_04.htm#3s.135

President of the Republic of Bulgaria,Pardons Committee (Oct. 24, 2012), available at

http://www.president.bg/cat21/Pardons-committee/&lang=en.136

Spiegel Online International,Libya Frees Nurses: Bulgaria President Pardons Medics in Sofia(Jul. 24, 2007),

available at http://www.spiegel.de/international/world/libya-frees-nurses-bulgarian-president-pardons-medics-in-

sofia-a-496168.html.137Criminal Codeart. 74 (Bulgaria, 1968), available athttp://www.vks.bg/english/vksen_p04_04.htm#3s.

138Criminal Codeart. 74 (Bulgaria, 1968), available athttp://www.vks.bg/english/vksen_p04_04.htm#3s.139Alexander Stoinov, CRIMINAL LAW(1992).140President of the Republic of Bulgaria,Pardons Committee (Oct. 24, 2012), available at


BULGARIA CONST. art. 103 (1991).142Novinite,Bulgarian MPs Mull New Ad-Hock Committee for Ex VPs Pardons(Apr. 12, 2012), available at

http://www.novinite.com/~novinite/newsletter/print.php?id=138465. 143

BULGARIA CONST. art. 155 (1991).144

Novinite,Bulgarian MPs Mull New Ad-Hock Committee for Ex VPs Pardons(Apr. 12, 2012), available at

http://www.novinite.com/~novinite/newsletter/print.php?id=138465.


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Although the Bulgarian Constitution does not establish an oversight body to

review the Presidents pardon decisions, Bulgaria has created a presidentially

mandated committee, called the Presidential Committee on Pardons (Pardon

Committee), to oversee the pardons process. The Pardon Committee consists of

experts in the areas of criminal law, psychology, and criminology.

145

ThePresident appoints each Pardon Committee member.146

The Pardon Committee

reviews each pardon petition and prepares reasoned opinions with

recommendations.147

The Pardon Committee meets at least twice a month and

holds hearings, at which it can invite and take the opinions of other members of the

administration, non-government organizations, or outside experts.148

However, the

representatives of non-governmental organizations invited to participate in the

meetings do not have the right to vote at the meetings.149

Despite the Pardons Committees oversight role, the President is under no

obligation to follow its recommendations.150 In fact, in several instances, thePresident has either refused to grant a pardon recommended by the Pardon

Committee or has granted one against the Pardon Committees recommendation.151

Because the President and the Vice President can act without disclosing their

rationale for exercising the pardon power, it remains unclear why they refused to

follow the Pardon Committees recommendations.152

145President of the Republic of Bulgaria,Pardons Committee (Oct. 24, 2012), available at

http://www.president.bg/cat21/Pardons-committee/&lang=en.146President of the Republic of Bulgaria,Pardons Committee (Oct. 24, 2012), available at





http://www.president.bg/cat21/Pardons-committee/&lang=en; President of the Republic of Bulgaria,Rules:

Commission for Pardons Under the President (Feb. 2012), available in Bulgarian at

http://www.president.bg/docs/1351452683.doc.149President of the Republic of Bulgaria,Decree No. 80 of the President of Bulgaria setting forth the Rules of

Procedure of the Committee on Pardonsart. 8 (Feb. 23, 2012), available in Bulgarian at

http://www.president.bg/docs/1351452736.pdf.150

President of the Republic of Bulgaria,Rules: Commission for Pardons Under the President (Feb. 2012),available in Bulgarian athttp://www.president.bg/docs/1351452683.doc.151




2012), available at http://www.novinite.com/view_news.php?id=137044.


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20


In comparison to the other states reviewed in this memorandum, Bulgaria

has maintained a relatively active pardon practice. From 2002 to 2012 (spanning

the two terms of Vice President Angel Marin), a total of 533 full and partialpardons were granted.153

The most frequently cited reasons for the decision to

grant a pardon include good behavior in prison, no prior convictions, deteriorated

health, low level of the offense, and dependent family status.154

Critics have expressed concerns regarding the pardon system, particularly

where pardons were granted for serious offenses.155

Pardons have been granted for

crimes such as robbery, theft, murder, libel, extortion, and drug possession. In

2012, Vice President Marin granted pardons to individuals who were convicted of

murder, and even exceptionally brutal murder in some cases.156

The resulting

negative press157led to the establishment of new rules outlining the petitionreview, recommendation, and granting process, as well as a salaried committee

dedicated to processing petitions.158

Lessons Learned

The appointment of a special committee responsible for reviewing pardon

petitions and making recommendations to the President provides administrative

oversight over the pardon process. A special pardon committee may be

particularly useful in states, like Bulgaria, where the act of pardon is considered anact within the sole discretion of the President and is not subject to supervision,

appeal, or other forms of review.159

Neither the Bulgarian Department of Justice,

nor the Parliament has issued any official guidance or best practices with respect to

153Novinite,Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinions of Advisors (Feb. 27,


Bulgarian Committee on Pardons,Annual Report, 14 (Jan. 23, 2013), available in Bulgarian at

http://president.bg/cat96/Annual-reports-pardons/.155Novinite,Bulgarias Decorated VP Pardoned 209 High-Profile Felons(Jan. 13, 2012), available at

http://www.novinite.com/view_news.php?id=135697.156Novinite,Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinion of Advisors(Feb. 27, 2012),

available athttp://www.novinite.com/view_news.php?id=137044.157Novinite,Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinion of Advisors(Feb. 27, 2012),

available athttp://www.novinite.com/view_news.php?id=137044.158President of the Republic of Bulgaria,Decree No. 80 of the President of Bulgaria setting forth the Rules of

Procedure of the Committee on Pardonsart. 8 (Feb. 23, 2012), available in Bulgarian at

http://www.president.bg/docs/1351452736.pdf.159

Novinite,Bulgarian Pardon Decrees Dont Require Countersignatures: Justice Minister(Feb. 16, 2012),

available at http://www.novinite.com/view_news.php?id=136722.


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pardons, precisely because pardoning is solely vested with the President.160

The

Pardon Committee has taken steps to fill in this vacuum.

Additionally, the Pardon Committee educates Bulgarian society about the

pardons process. For instance, the Pardon Committee has organized seminars andconferences. It has published annual and monthly reports containing brief

summaries of pardon petitions and the Pardons Committees recommendations

and decisions.161

The Pardon Committee has also conducted various surveys and

studies on the legal frameworks of other European states for the purpose of

modernizing Bulgarias pardon process.162

Finland

The Finnish Constitution provides the legal basis for the pardon. In Finland,

pardons are limited to criminal offenses or penalties and do not apply to civil orpublic law offenses. Even if a pardon is granted, the individual will still have the

crime on his or her record. Finland maintains limited executive and judicial

oversight on the pardon process. Despite this oversight, the Finnish President acts

based on his or her own discretion when granting pardons. Pardons are granted

infrequently in Finland. This may explain the lack of public interest in pardons.

Issuing Authority

The Finnish Constitution provides authority to the President to grantpardons. Under the Constitution, the President may grant an individual pardon, but

only to a sentence or penalty imposed for a criminal offense such as a fine,

imprisonment, or forfeiture.163

The President cannot waive obligations based on

civil or public law, such as taxes, maintenance payments, or bank loans.164

In

addition, the President may only grant an individual pardon after a final judgment,

and there is no mention of preemptively exempting an individual from the law.165

160Novinite,Bulgarian Pardon Decrees Dont Require Countersignatures: Justice Minister(Feb. 16, 2012),

available at http://www.novinite.com/view_news.php?id=136722.161President of the Republic of Bulgaria,Monthly Reports of Pardons Committee(Nov. 5, 2012), available at

http://president.bg/cat95/Monthly-reports-pardons/.162President of the Republic of Bulgaria,Analysis and Research of Pardons Committee(Nov. 6, 2012), available at

http://president.bg/cat97/Analyses-and-researches-pardons/.163FINLAND CONST. art. 105 (1999), available athttp://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf.164

Office of the President of the Republic of Finland, Duties: Pardons(last accessed Jan. 20, 2014), available at

http://www.tpk.fi/public/default.aspx?nodeid=44821&contentlan=2&culture=en-US#Pardons.165


http://www.tpk.fi/public/default.aspx?nodeid=44821&contentlan=2&culture=en-US#Pardons.


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Unlike the Spanish Constitution, the Finnish Constitution does not discuss whether

the President is permitted to pardon public officials.

Finland also has a concept of collective pardon, known as general amnesty

or general pardon. General amnesty is granted to a group of individuals that havebeen convicted of the same crime, such as a political crime.166

In contrast with

individual pardon, general amnesty must be enacted by special legislation;

however, there is not much guidance on its limits and principles.167

The Finnish pardon application process is relatively simple. Like Spain,

anyone can submit a petition for a pardon and it does not require the consent of the

person to be pardoned.168

Finland does not have a specific official format for

pardon petitions.169

Although the President makes the ultimate decision regarding

the pardon, he or she does not handle petitions and does not respond to inquiries

regarding the petitions.170 Instead, the Ministry of Justice handles and processes allpardon requests.

171 The Ministry of Justice collects reports and statements relating

to the pardon request, such as a statement from the Supreme Court and the pardon

petitioner's criminal records.172

The Administrative Unit of the Ministry of Justice processes pardon requests

and presents the pardon application to the President for approval.173

The President

then makes the decision whether to grant the pardon request.174

Once the President

166The Law Dictionary, General Pardon(last accessed Feb. 11, 2014), available at

http://thelawdictionary.org/general-pardon/.167Kimmo Nuotio,LHarmonisation des Sanctions Pnales en Europe: Finland, UNITE MIXTE DE RECHERCHE DE

DROIT COMPARE DE UNIVERSITE DE PARIS, 63 (April 2013), available at

http://hal.inria.fr/docs/00/41/96/45/PDF/RAPPORTS_NATIONAUX_-_Finland_-_Kimmo_NUOTIO.pdf.168

Office of the President of the Republic of Finland,Duties: Pardons(last accessed Jan. 20, 2014), available at


Office of the President of the Republic of Finland,Duties: Pardons(last accessed Jan. 20, 2014), available at


Office of the President of the Republic of Finland, Frequently Asked Questions(last accessed Feb. 8, 2014),

available at http://www.tpk.fi/public/default.aspx?nodeid=44844&contentlan=2&culture=en-US.171Office of the President of the Republic of Finland, Duties: Pardons(last accessed Jan. 20, 2014), available at


172Criminal Records Actsec. 4(1) (3) (Finland 1999), available athttp://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf.173Finland Ministry of Justice,Administrative Unit(last accessed Jan. 20, 2014), available at

http://oikeusministerio.fi/en/index/theministry/organization/administrativeunit.html; Office of the President of the

Republic of Finland,Frequently Asked Questions: How Can a Pardon be Petitioned from the President(Jul. 17,

2012), available athttp://www.tpk.fi/public/default.aspx?nodeid=44844&contentlan=2&culture=en-US; Office ofthe President of the Republic of Finland,Duties: Pardons(last accessed Jan. 20, 2014), available at

http://www.tpk.fi/public/default.aspx?nodeid=44821&contentlan=2&culture=en-US#Pardons..174

Office of the President of the Republic of Finland, Frequently Asked Questions(last accessed Jan. 20, 2014),

available at http://www.tpk.fi/Public/default.aspx?nodeid=44844&culture=en-US&contentlan=2.


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makes the decision, the petitioner, other concerned parties, and the authorities are

informed.175

Pardons do not eliminate the individuals criminal record.176

Criminal

records in Finland include, inter alia, the persons name, information on courtdecisions, offenses of which the person has been convicted, penalties to which the

person has been sentenced, the serving of those sentences, and pardons.177


Finlands pardon process includes limited administrative and judicial

oversight. The Administrative Unit at the Ministry of Justice, for instance, plays

an important role in compiling and presenting pardon applications; however, it is

unclear whether it has the authority to deny requests before their consideration by

the President.178 In addition, the Constitution requires that the Supreme Court givea statement to the President regarding a pardon request.

179 Although they are not

determinative, initial administrative reviews and judicial statements regarding a

pardon request may provide some limited oversight for the pardon process.

Nevertheless, the Finnish President retains the ultimate authority to make the

decision.180

Another limitation on Finlands pardon practice is the type of offenses that

can be pardoned. Only criminal offenses can be pardoned; civil or public law

obligations cannot.

181

175Office of the President of the Republic of Finland, Frequently Asked Questions(last accessed Jan. 20, 2014),

available at http://www.tpk.fi/Public/default.aspx?nodeid=44844&culture=en-US&contentlan=2.176Criminal Records Actsec. 10(2) (Finland 1999), available at

http://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf.

177Criminal Records Actsec. 3 (Finland 1999), available athttp://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf.178Finland Ministry of Justice,Administrative Unit(last accessed Jan. 20, 2014), available at

http://oikeusministerio.fi/en/index/theministry/organization/administrativeunit.html.179

FINLAND CONST. art. 105 (1999).180Kimmo Nuotio,LHarmonisation des Sanctions Pnales en Europe: Finland, UNITE MIXTE DE RECHERCHE DE

DROIT COMPARE DE UNIVERSITE DE PARIS, 63 (April 2013), available at

http://hal.inria.fr/docs/00/41/96/45/PDF/RAPPORTS_NATIONAUX_-_Finland_-_Kimmo_NUOTIO.pdf.181




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Presidential pardons are not granted frequently.182

From 2008 to 2010, the

Finnish President only approved 17 of approximately 100-160 applications for

pardon each year.

183

Recent high-profile cases included former President TarjaHalonens pardoning of at least 12 conscientious objectors who had refused to

perform civilian or military service.184

In granting these pardons, President

Halonen exercised her right to disregard both the Supreme Courts advice not to

grant the pardons and the Courts prior rejection of the pardon candidates appeals

cases.185

In her last two years in office, President Halonen pardoned approximately

ten people each year.186

Because the President is not required to offer any explanations for the

pardons, the Finnish Presidents right to pardon prisoners has been somewhat

controversial.187 Current President Sauli Niinist ran on a political platform thatincluded revoking the presidential right to pardon prisoners in favor of using the

judicial process.188

According to a survey regarding the presidential election in

2012, however, Finns considered granting pardons to be the least important of all

presidential functions.189

182Helsingin Sanomat,Niinist Willing to Abolish Presidential Pardon for Criminals (Feb. 20, 2011), available at

http://www.hs.fi/english/article/Niinist%C3%B6+willing+to+abolish+presidential+pardon+for+criminals/11352700

69867.183Helsingin Sanomat,Niinist Willing to Abolish Presidential Pardon for Criminals (Feb. 20, 2011), available at


69867.184

Helsinki Times,Halonen Took Pity on Conscientious Objectors(Mar. 8, 2012), available athttp://www.helsinkitimes.fi/finland/finland-news/from-the-finnish-press/1614-halonen-took-pity-on-conscientious-

objectors.html.185

Helsinki Times,Halonen Took Pity on Conscientious Objectors(Mar. 8, 2012), available at

http://www.helsinkitimes.fi/finland/finland-news/from-the-finnish-press/1614-halonen-took-pity-on-conscientious-

objectors.html.186 Helsinki Times,Halonen Took Pity on Conscientious Objectors(Mar. 8, 2012), available at

http://www.helsinkitimes.fi/finland/finland-news/from-the-finnish-press/1614-halonen-took-pity-on-conscientious-

objectors.html.187Helsingin Sanomat,Niinist Willing to Abolish Presidential Pardon for Criminals (Feb. 20, 2011), available at


69867.188

Helsingin Sanomat,Niinist Willing to Abolish Presidential Pardon for Criminals (Feb. 20, 2011), available athttp://www.hs.fi/english/article/Niinist%C3%B6+willing+to+abolish+presidential+pardon+for+criminals/11352700

69867.189

Helsinki Times,HBL: Finns Want a Patriotic, Multilingual President(Dec. 27, 2011), available at

http://www.helsinkitimes.fi/finland/finland-news/domestic/814-hbl-finns-want-a-patriotic-multilingual-

president.html.


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25

Lessons Learned

Although the Finnish Supreme Court advises the President in pardon cases,

the President is not obligated to follow the Courts advice.

190

Thus, the benefits ofhaving multiple parties advise the Finnish President are reduced if the President

does not have to explain or justify his or her decision. Unfettered presidential

authority over pardons also increases the probability that the pardon will be used in

a political manner. In contrast, if the Ministry of Justice, the Supreme Court, or

another party were granted the authority to review and/or challenge the Presidents

pardon decisions or if the President were required to explain the decisions, Finland

would increase transparency and provide less opportunity for abuse.

Conclusion

European state practice consistently grants the pardon issuing authority to

the head of state. As in Germany and Finland, the head of state typically does not

have to provide the rationale underlying the decision, and does not face a review

mechanism for the decision.191

Some states, however, like Belgium and Bulgaria,

are moving towards greater transparency and accountability in the pardon

process.192

By publicizing the decision and the underlying rationale to grant or

deny a pardon, states add transparency to the pardon process. In Spain, for

instance, pardons are published in the official public journal. Similarly, Bulgaria

publishes yearly and monthly reports that contain brief summaries of the petitionsand the reasons for the Pardon Committees recommendations.

Limiting the types of offenses for which pardons can be granted would

provide a relatively straightforward solution to potential public corruption.

Legislation could exclude or limit public officials or individuals convicted of

official crimes from obtaining a pardon. For instance, in Mexico, pardons are

not available for federal government officials acts that injure public interest or the

proper conduct of business.193

In Venezuela, pardons cannot be granted for human

190FINLAND CONST. art. 105 (1999).191

GERMANY CONST.art. 60 (1949).192Novinite,Bulgarian Vice President: Pardons Must Be Granted by Experts(Jan. 28, 2012), available at

http://www.novinite.com/articles/136153/Bulgarian+Vice+President%3A+Pardons+Must+Be+Granted+by+Experts

.193

MEXICO CONST. arts. 111-112 (1966), available at http://www.oas.org/juridico/mla/en/mex/en_mex-int-text-

const.pdf.


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rights abuses.194

In Belgium, the King cannot grant pardons to public officials

unless the legislative branch requests the pardon.195

In Finland, only criminal

offenses are eligible for pardon, a limit that can prevent heads of state from

abusing the right to forgive debt owed to the state.196

These are useful examples of

limitations that could be placed on the availability of pardons.

European states tend to lack oversight and review of the head of states

decision to grant or deny a pardon. Even though several states involve various

levels of government whether the Ministry of Justice or separately constituted

commissions or committees in a review or advising capacity, the head of state is

often not bound to adhere to others recommendations. Furthermore, the head of

states decision is not explained, justified, or subject to review. Globally, this is

not always the case. In Singapore, for instance, the granting or denial of a pardon

can be challenged in court if the president was unduly influenced by other

considerations or if the pardon decision contravenes the Constitution.197

Similar to states that frequently grant pardons with few limitations or

oversight mechanisms, Bosnia and Herzegovinas (BiH) pardon practice has been

controversial. In November 2004, the Office of the High Representative

suspended the BiH Law on Pardons198

because pardons were being used for

political ends.199

Although a new state-level Law on Pardons was passed in

December 2005, with versions adopted in the Republika Srpska in March 2007,

Br!ko District in February 2007, and the Federation of BiH in March 2009,200

the

general population generally views the pardon practice as corrupt.

201

As BiHconsiders new reforms to its pardon process, the lessons learned from the

legislative and administrative frameworks of the states surveyed in this

194VENEZUELA CONST. art. 29, (2009), available at

http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf.195

BELGIUM CONST. arts. 111 (1994), available at

http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.196FINLAND CONST. art. 105 (1999), available athttp://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf.

197Shubhankar Dam,Presidential Pardon in Singapore: A Comment on Vong Vui Kong v. Attorney-General, 42Common Law World Review 48, 57 (2013).198Office of High Representative,Decision Enacting the Law Repealing the Law on Pardon of Bosnia and

Herzegovina(Nov. 26, 2004),available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=33591.199

Freedom House,Nations in Transit 2006: Bosnia and Herzegovina(last accessed Feb. 8, 2014),available athttp://www.freedomhouse.org/report/nations-transit/2006/bosnia-and-herzegovina#.UvZl2146Fyg.200

The Center for Investigative Reporting,Pardoning for Officeholders(Jan. 16, 2011),available at

http://www.cin.ba/en/pomilovanje-funkcionerima-radovanje/.201

The Center for Investigative Reporting,Pardoning for Officeholders(Jan. 16, 2011),available at

http://www.cin.ba/en/pomilovanje-funkcionerima-radovanje/.


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memorandum can provide insight into how to design a transparent and accountable

pardon process.

Documents

Pardons Memo