Pardons Memo

PARDONS:
EUROPEAN STATE PRACTICES

Legal Memorandum

March 2014

PARDONS: EUROPEAN STATE PRACTICES

Executive Summary

The purpose of this memorandum is to compare European state practices
regarding 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. The
Belgian 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 Assembly
has 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 Constitution
splits 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.

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 of
government 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 an
initial 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 and
cannot 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.

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
Lessons Learned 10

Germany 10
Issuing Authority 10
Lessons Learned 13

Spain 14
Lessons Learned 16

Bulgaria 17
Lessons Learned 20

Finland 21

Lessons Learned 25

Conclusion 25
Pardons: European State Practices, March 2014

1
PARDONS: EUROPEAN STATE PRACTICES

Statement of Purpose

The purpose of this memorandum is to compare European state practices
regarding 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

1
Leslie Sebba, The Pardoning Power: A World Survey, 68 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 83, 84-
111 (1977), available at
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6010&context=jclc.
2
Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE 56-59 (2002).
3
4
5
6
7
Leslie Sebba, The Pardoning Power: A World Survey, 68 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 83, 111
(1977), available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6010&context=jclc.

2
in the next election cycle. Nevertheless, because the power to pardon is an
exception within the separation of powers principle,
8
the 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

8
Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL 339, 341 (2004),
available at http://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339-
346_Public_Kellner.pdf.
9
Roman Herzog, Art. 60, in GRUNDGESETZ- KOMMENTAR, para. 38 (Brun-Otto Bryde, Manfred Gubelt, and Ingo
Von Munch, eds.,6th ed., 2012).
10
President of the Republic of Bulgaria, Decree No. 80 of the President of Bulgaria setting forth the Rules of
Procedure of the Committee on Pardons art. 8 (Feb. 23, 2012), available in Bulgarian at
http://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.

3
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 grce may 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 de grce request.
18
Then, the
agent gives his or her analysis and opinion on the matter to both the head of the
Service des Grces and 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 the
Attorney General issues an opinion.
20
The driot de grce request 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

13
BELGIUM CONST. art. 110 (1994).
14
15
BELGIUM CONST. arts. 103. 111 (1994).
16
17
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/.
18
Didier 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.
19
20

4
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 may
be 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 grces were 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

21
22
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
25
French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at
http://www.senat.fr/lc/lc177/lc177.pdf.
26
27
28
The Bulletin, No Collective Pardon from King Philippe (Jul. 23, 2013), available at http://www.xpats.com/no-
collective-pardon-from-king-philippe.
29
30

5
King typically grants droit de grces to 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 or
reduction 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 Grces received an average of 2,000 pardon requests each year.
38

Between 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

31
32
33
34
35
36
37
38
39
40

6
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 Belgiums
Regions. 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 Grces and 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

41
42
43
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.
44
Tomas 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
45
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.
46
47

7
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 the
Federal 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

48
SWITZERLAND CONST. art. 173 (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.
49
SWITZERLAND CONST. art. 173(k) (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.
50
51
52
Criminal Code art. 381 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified-
compilation/19370083/index.html.
53

8
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 crime
falling 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 vest
the 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

54
55
Federal Act on the Federal Assembly art. 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.
57
58
59
60
61
62

9

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 or
partial 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,

63
64
65
66
67
68
69

10
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 the
popular 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 the
public 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

70
Raphal Leroy, Pas de grce pour le plus vieux dtenu de Suisse, 20 MINUTES (Sept. 19, 2013), available in
French at http://www.20min.ch/ro/news/geneve/story/13366713.
71
Raphal Leroy, Pas de grce pour le plus vieux dtenu de Suisse, 20 MINUTES (Sept. 19, 2013), available in
French at http://www.20min.ch/ro/news/geneve/story/13366713.
72
73

11
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 to
pardon 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 against
federal 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

74
75
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 JOURNAL 339, 341
(2004), available at http://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339-
77
78
The first instance court is the court where evidence is first admitted and considered; Code of Criminal Procedure
art. 452 (Germany, 1987), available at http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p2512.
79
Code of Criminal Procedure art. 452 (Germany, 1987), available at http://www.gesetze-im-
internet.de/englisch_stpo/englisch_stpo.html#p2512.
80
81
82

12
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 punitive
justice 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

83
84
85
86
Code of Criminal Procedure art. 452 (Germany, 1987), available at http://www.gesetze-im-
internet.de/englisch_stpo/englisch_stpo.html#p2512.
87
88
BAVARIA CONST. art. 47 (Germany, 1946), available at http://www.taxi-muenchen-
online.de/programme/bavarian_const.pdf.
89
NORTH 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.
90
THURINGER 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 at http://www.landtag-
niedersachsen.de/ltnds/download/21561/nds_verfassung_englisch.pdf.
92
GERMANY CONST. art. 60 (1949).

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

93
See GERMANY CONST. art. 60 (1949); Code of Criminal Procedure art. 452 (Germany, 1987), available at
http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p2512.
94
Deutsche 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.
95
96
Stephanie 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.

14
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, the Boletn 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

100
101
SPAIN CONST. art. 102 (1978), available at
http://www.tribunalconstitucional.es/es/constitucion/Paginas/ConstitucionIngles.aspx.
102
SPAIN CONST. art. 62(i) (1978), available at
http://www.tribunalconstitucional.es/es/constitucion/Paginas/ConstitucionIngles.aspx.
103
Rules 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
105
Rules for the Exercise of the Grace of Pardon art. 30 (Spain, 1988), available in Spanish at
106

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 for
the 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

107
108
109
110
111
112
113
114
SPAIN CONST. art. 62 (1978).
115
116

16
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 must
not 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, for
instance, 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 individual
applicants 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.

117
118
119
120
121
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
123

17
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 provisions
within 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 pardon
process. 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

124
125
126
Ivan Nenov, CRIMINAL LAW OF BULGARIA, GENERALITIES (1992).
127
128
129
130
BULGARIA CONST. art. 98 (1991), available at http://www.vks.bg/english/vksen_p04_01.htm.
131
BULGARIA 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.

18
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 pardon
process. 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

134
Criminal Code art. 74 (Bulgaria, 1968), available at http://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.
137
138
139
Alexander Stoinov, CRIMINAL LAW (1992).
140
141
142
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.
143
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.

19
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
The
President 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, the
President 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

145
146
147
148
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.
149
150
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.
151
152

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 partial
pardons 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 press
157
led to the establishment of new rules outlining the petition
review, 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 an
act 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

153
154
Bulgarian Committee on Pardons, Annual Report, 14 (Jan. 23, 2013), available in Bulgarian at
http://president.bg/cat96/Annual-reports-pardons/.
155
Novinite, Bulgarias Decorated VP Pardoned 209 High-Profile Felons (Jan. 13, 2012), available at
http://www.novinite.com/view_news.php?id=135697.
156
Novinite, Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinion of Advisors (Feb. 27, 2012),
available at http://www.novinite.com/view_news.php?id=137044.
157
Novinite, Ex Bulgaria Vice President Granted 49 Pardons Despite Negative Opinion of Advisors (Feb. 27, 2012),
158
159
Novinite, Bulgarian Pardon Decrees Dont Require Countersignatures: Justice Minister (Feb. 16, 2012),

21
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 and
conferences. 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 or
public 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 grant
pardons. 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

160
Novinite, Bulgarian Pardon Decrees Dont Require Countersignatures: Justice Minister (Feb. 16, 2012),
161
President of the Republic of Bulgaria, Monthly Reports of Pardons Committee (Nov. 5, 2012), available at
http://president.bg/cat95/Monthly-reports-pardons/.
162
President of the Republic of Bulgaria, Analysis and Research of Pardons Committee (Nov. 6, 2012), available at
http://president.bg/cat97/Analyses-and-researches-pardons/.
163
FINLAND CONST. art. 105 (1999), available at http://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

22
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 have
been 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 all
pardon 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

166
The Law Dictionary, General Pardon (last accessed Feb. 11, 2014), available at
http://thelawdictionary.org/general-pardon/.
167
Kimmo 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
169
170
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.
171
172
Criminal Records Act sec. 4(1) (3) (Finland 1999), available at
http://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf.
173
Finland 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 at http://www.tpk.fi/public/default.aspx?nodeid=44844&contentlan=2&culture=en-US; 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..
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.

23
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 court
decisions, 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 give
a 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

175
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.
176
Criminal Records Act sec. 10(2) (Finland 1999), available at
177
Criminal Records Act sec. 3 (Finland 1999), available at
178
Finland 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).
180
Kimmo 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

24

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 Tarja
Halonens 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 that
included 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

182
Helsingin 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.
183
69867.
184
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.
185
objectors.html.
186
objectors.html.
187
69867.
188
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.

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 of
having 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 petitions
and 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

190
FINLAND CONST. art. 105 (1999).
191
GERMANY CONST. art. 60 (1949).
192
Novinite, 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.

26
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 Pardons
198
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 BiH
considers new reforms to its pardon process, the lessons learned from the
legislative and administrative frameworks of the states surveyed in this

194
VENEZUELA 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.
196
FINLAND CONST. art. 105 (1999), available at http://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf.
197
Shubhankar Dam, Presidential Pardon in Singapore: A Comment on Vong Vui Kong v. Attorney-General, 42
Common Law World Review 48, 57 (2013).
198
Office 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 at
http://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/.

27
memorandum can provide insight into how to design a transparent and accountable
pardon process.

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