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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 executivelegislative
pardon authority. In nearly all of the states surveyed, the granting of a pardon does not erase the underlying criminal record.
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 executivelegislative
pardon authority. In nearly all of the states surveyed, the granting of a pardon does not erase the underlying criminal record.
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 executivelegislative
pardon authority. In nearly all of the states surveyed, the granting of a pardon does not erase the underlying criminal record.
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 Limitations and Oversight 9 Pardon Practice and Public Perception 9 Lessons Learned 10
Germany 10 Issuing Authority 10 Limitations and Oversight 12 Pardon Practice and Public Perception 13 Lessons Learned 13
Spain 14 Issuing Authority 14 Limitations and Oversight 15 Pardon Practice and Public Perception 16 Lessons Learned 16
Bulgaria 17 Issuing Authority 17 Limitations and Oversight 18 Pardon Practice and Public Perception 20 Lessons Learned 20
Finland 21 Issuing Authority 21 Limitations and Oversight 23 Pardon Practice and Public Perception 24
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 Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE 56-59 (2002). 4 Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE 56-59 (2002). 5 Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE 56-59 (2002). 6 Leslie Sebba & Richard S. Frase, ENCYCLOPEDIA OF CRIME AND JUSTICE 56-59 (2002). 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. Pardons: European State Practices, March 2014
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. Pardons: European State Practices, March 2014
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 BELGIUM CONST. art. 110 (1994). 15 BELGIUM CONST. arts. 103. 111 (1994). 16 BELGIUM CONST. art. 125 (1994). 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 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. 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/. Pardons: European State Practices, March 2014
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 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. 22 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. 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 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. 25 French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 26 French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 27 French 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 at http://www.xpats.com/no- collective-pardon-from-king-philippe. 29 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 30 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. Pardons: European State Practices, March 2014
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 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 32 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 33 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/. 34 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 35 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/. 36 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 37 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. 38 French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 39 French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 40 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. Pardons: European State Practices, March 2014
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 French Senate, Le Amnistie Et La Grace, 17 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 42 French Senate, Le Amnistie Et La Grace, 18 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 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 http://www.rtbf.be/info/belgique/detail_le-roi-a-octroye-53-graces-en-2012?id=7910152. 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 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. 47 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. Pardons: European State Practices, March 2014
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 SWITZERLAND CONST. art. 157 (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. 51 SWITZERLAND CONST. art. 157 (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. 52 Criminal Code art. 381 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. 53 Criminal Code art. 382 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. Pardons: European State Practices, March 2014
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 Criminal Code art. 382 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. 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 Federal Act on the Federal Assembly art. 40 (Switzerland, 2002), available at http://www.admin.ch/ch/e/rs/171_10/a40.html. 58 Criminal Code art. 381 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. 59 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 60 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 61 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 62 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. Pardons: European State Practices, March 2014
9 Limitations and Oversight
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
Practice and Public Perception
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 Criminal Code art. 383 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. 64 Criminal Code art. 383 (Switzerland, 1937), available at http://www.admin.ch/opc/en/classified- compilation/19370083/index.html. 65 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. 66 Federal Act on the Federal Assembly art. 40 (Switzerland, 2002), available at http://www.admin.ch/ch/e/rs/171_10/a40.html. 67 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 68 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 69 French Senate, Le Amnistie Et La Grace, 37 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. Pardons: European State Practices, March 2014
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 Federal Act on the Federal Assembly art. 40 (Switzerland, 2002), available at http://www.admin.ch/ch/e/rs/171_10/a40.html. 73 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. Pardons: European State Practices, March 2014
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 French Senate, Le Amnistie Et La Grace, 12 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 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- 346_Public_Kellner.pdf. 77 Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL 339, 340 (2004), available at http://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339- 346_Public_Kellner.pdf. 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 French Senate, Le Amnistie Et La Grace, 12 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 81 French Senate, Le Amnistie Et La Grace, 12 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 82 French Senate, Le Amnistie Et La Grace, 12 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. Pardons: European State Practices, March 2014
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
Limitations and Oversight
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 French Senate, Le Amnistie Et La Grace, 12 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 84 Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL 339, 340 (2004), available at http://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339- 346_Public_Kellner.pdf. 85 Matt Kellner, Tax Amnesty 2004/2005: An Appropriate Revenue Tool?, 5 GERMAN LAW JOURNAL 339, 340 (2004), available at http://www.germanlawjournal.com/pdfs/Vol05No04/PDF_Vol_05_No_04_339- 346_Public_Kellner.pdf. 86 Code of Criminal Procedure art. 452 (Germany, 1987), available at http://www.gesetze-im- internet.de/englisch_stpo/englisch_stpo.html#p2512. 87 French Senate, Le Amnistie Et La Grace, 13 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 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). Pardons: European State Practices, March 2014
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.
Practice and Public Perception
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 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. 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. Pardons: European State Practices, March 2014
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 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. 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 http://noticias.juridicas.com/base_datos/Penal/lregi.html. 105 Rules for the Exercise of the Grace of Pardon art. 30 (Spain, 1988), available in Spanish at http://noticias.juridicas.com/base_datos/Penal/lregi.html. 106 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. Pardons: European State Practices, March 2014
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
Limitations and Oversight
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 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. 108 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. 109 Rules for the Exercise of the Grace of Pardon art. 2 (Spain, 1988), available in Spanish at http://noticias.juridicas.com/base_datos/Penal/lregi.html. 110 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. 111 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. 112 French Senate, Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 113 French Senate, Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 114 SPAIN CONST. art. 62 (1978). 115 SPAIN CONST. art. 62 (1978). 116 French Senate, Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. Pardons: European State Practices, March 2014
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
Practice and Public Perception
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 SPAIN CONST. art. 102 (1978). 118 Rules for the Exercise of the Grace of Pardon art. 15 (Spain, 1988), available in Spanish at http://noticias.juridicas.com/base_datos/Penal/lregi.html. 119 Rules for the Exercise of the Grace of Pardon art. 15 (Spain, 1988), available in Spanish at http://noticias.juridicas.com/base_datos/Penal/lregi.html. 120 French Senate, Le Amnistie Et La Grace, 24 (Oct. 2007), available in French at http://www.senat.fr/lc/lc177/lc177.pdf. 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 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 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. Pardons: European State Practices, March 2014
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 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. 125 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. 126 Ivan Nenov, CRIMINAL LAW OF BULGARIA, GENERALITIES (1992). 127 Ivan Nenov, CRIMINAL LAW OF BULGARIA, GENERALITIES (1992). 128 Ivan Nenov, CRIMINAL LAW OF BULGARIA, GENERALITIES (1992). 129 Ivan Nenov, CRIMINAL LAW OF BULGARIA, GENERALITIES (1992). 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. Pardons: European State Practices, March 2014
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
Limitations and Oversight
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 Criminal Code art. 74 (Bulgaria, 1968), available at http://www.vks.bg/english/vksen_p04_04.htm#3s. 138 Criminal Code art. 74 (Bulgaria, 1968), available at http://www.vks.bg/english/vksen_p04_04.htm#3s. 139 Alexander Stoinov, CRIMINAL LAW (1992). 140 President of the Republic of Bulgaria, Pardons Committee (Oct. 24, 2012), available at http://www.president.bg/cat21/Pardons-committee/&lang=en. 141 BULGARIA CONST. art. 103 (1991). 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 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. Pardons: European State Practices, March 2014
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 President of the Republic of Bulgaria, Pardons Committee (Oct. 24, 2012), available at http://www.president.bg/cat21/Pardons-committee/&lang=en. 146 President of the Republic of Bulgaria, Pardons Committee (Oct. 24, 2012), available at http://www.president.bg/cat21/Pardons-committee/&lang=en. 147 President of the Republic of Bulgaria, Pardons Committee (Oct. 24, 2012), available at http://www.president.bg/cat21/Pardons-committee/&lang=en. 148 President 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. 149 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. 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 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. 152 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. Pardons: European State Practices, March 2014
20 Practice and Public Perception
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 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. 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), available at http://www.novinite.com/view_news.php?id=137044. 158 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. 159 Novinite, Bulgarian Pardon Decrees Dont Require Countersignatures: Justice Minister (Feb. 16, 2012), available at http://www.novinite.com/view_news.php?id=136722. Pardons: European State Practices, March 2014
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), available at http://www.novinite.com/view_news.php?id=136722. 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 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. Pardons: European State Practices, March 2014
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 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. 169 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. 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 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. 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. Pardons: European State Practices, March 2014
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
Limitations and Oversight
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 http://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf. 177 Criminal Records Act sec. 3 (Finland 1999), available at http://www.finlex.fi/en/laki/kaannokset/1993/en19930770.pdf. 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 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. Pardons: European State Practices, March 2014
24 Practice and Public Perception
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 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. 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 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. 187 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. 188 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. 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. Pardons: European State Practices, March 2014
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. Pardons: European State Practices, March 2014
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/. Pardons: European State Practices, March 2014
27 memorandum can provide insight into how to design a transparent and accountable pardon process.