pardon

from Wikipedia, the free encyclopedia

A pardon is the remission, conversion, reduction or suspension of a legally enforceable penalty , ancillary penalty , disciplinary penalty or a fine in the case of administrative offenses . It is controversial whether it also applies to measures for improvement and security . In the general understanding of language, pardon is the granting of grace (show of grace ) in individual cases. If a group of people is pardoned, one speaks of (general) amnesty . The right to grant grace is referred to as a grace or grace or pardon . The pardon can be issued ex officio or on application , the request for clemency.

The pardon is mostly the power of heads of state (in Switzerland, however, a cantonal authority or the federal parliament), the individual perpetrators can waive the punishment assigned to them under criminal law . In this practice, a remnant of the monarchical prerogative has been preserved, according to which rulers can override applicable rules (“mercy before justice”). Abolition, on the other hand, means the discontinuation of ongoing criminal proceedings and is only possible within the framework of the procedural termination reasons.

The concept of grace implies that a convict has no right to grace. The right of grace is not justiciable. The “Lord of Grace” can decide on the request for grace without giving reasons. As a result, there is no legal remedy against the granting or rejection of a pardon. In the constitutional state, however, human dignity requires a right to be heard and to examine the petition for clemency.

Legal position

In most states that have a monarchical head of state (king, prince, duke, etc.), the right to pardon is a privilege of this head of state. This is a legacy of absolutist cabinet justice and sovereignty . In republics, they are usually replaced by the president or the corresponding body. An exception is Switzerland, where the parliament (of a canton or the federal government) is usually responsible for pardons.

In many constitutions, however, this right is restricted by the fact that the countersignature of a minister is required; Sometimes certain offenses such as criminal offenses or misconduct by a minister and the like are excluded from the head of state's right to pardon, and are made dependent on the consent of the entire government or parliament. In such cases, a pardon from the head of state could appear to favor persons directly subordinate to him. In most countries, amnesties are only possible by law.

Germany

Because the Imperial Criminal Code of 1871 largely adopted the Prussian Criminal Code, the death penalty was reintroduced in the countries that had already abolished it. It was intended as a punishment for murder (Section 211) and for attempted murder on the emperor or one's own sovereign (Section 80). A lay jury passed death sentences. A one-time appointment process was possible. According to this, in the case of Section 211, the convicted person could seek pardon from his sovereign or the Senate of the respective Free City; in the case of section 80, the emperor, if the Reich was affected. Only when the clemency had been explicitly rejected, the judgment could be enforced.

In today's Germany , the federal government has the right to pardon in criminal cases in which a decision was made in the first instance in "exercise of federal jurisdiction " (§ 452, sentence 1 StPO ), e.g. B. in state security crimes such as the formation of terrorist organizations .

The right of pardon for the federal government is exercised by the Federal President in accordance with Article 60, Paragraph 2 of the Basic Law , insofar as the conviction was carried out by a federal court or the courts of the Länder have exercised federal jurisdiction in accordance with Article 96, Paragraph 5 in organ lending . Since the federal government does not have a court of entry in criminal matters, the Federal Public Prosecutor sues in the cases in which he is responsible for the indictment (cf. § 142a GVG) at the Higher Regional Court (in Berlin: Kammergericht ), which then acts as a federal court. The Federal President can transfer the powers of grace to other authorities in accordance with Article 60.3 of the Basic Law. The Federal President's pardon is not subject to judicial control. However, it must be countersigned by a member of the federal government . Usually this is the Federal Minister of Justice .

Under the title The Federal President's Right to Pardon , the Scientific Service of the German Bundestag has stated, among other things: "[...] the right to pardon can only be exercised in individual cases."

In the other cases, i.e. in those cases in which a regional or district court has pronounced the judgment, the right of pardon lies with the federal states. According to the state constitutions , it is exercised by:

The state constitutions usually also allow the right to pardon to be transferred - e.g. B. to the Minister of Justice - for example in Lower Saxony . In less significant cases, the holders of the right to pardon have regularly transferred their powers to subordinate bodies in pardon orders, usually to the enforcement authority ( public prosecutor's office ); in North Rhine-Westphalia, for example, the mercy office is responsible. Amnesties, on the other hand, require a law, as they do not only refer to individual cases.

A sensational recent case in the spring of 2007 was the petition for clemency from RAF terrorist Christian Klar, who was sentenced to life imprisonment for several murders and attempted murders . Clearly wanted to achieve an early release almost two years before the end of his minimum serving period of 15 years. The request for clemency was the cause of a broad public debate about how to deal with the RAF history in Germany. At the center of the discussion was the question of whether repentance and the willingness to fully investigate the crimes, which many of Klar missed, are necessary conditions for a grace. On May 7, 2007, Federal President Horst Köhler rejected Klar's petition for clemency after a personal hearing.

It is controversial whether a judicial review of the pardon is possible. This was rejected by the Federal Constitutional Court in 1969, because the grant of grace represents a deliberate breach of the principle of separation of powers , so the legal protection from Art. 19 IV GG is not given. On the other hand, a view expressed in the literature assumes that the act of grace has no legal character.

statistics

In 2006 around 4,000 requests for clemency were made in North Rhine-Westphalia , and the clergy offices of the regional courts, the Ministry of Justice and the Prime Minister approved every tenth request. The Office of the Federal President does not provide any information about positive or negative pardon decisions by the Federal President, and no information at all about the decisions of the incumbent Federal President.

From July 1, 1974 to the end of Joachim Gauck's term of office on March 18, 2017, 898 decisions on disciplinary grounds and 97 decisions on penal grounds were made by the Federal Presidents.

Austria

In Austria , the Federal President has the right to pardon among others (Art. 65 Paragraph 2 lit. c B-VG, § 25 Paragraph 3 ÜG 1920, § 10 HDG).

Switzerland

In Switzerland , the pardon in cases in which the criminal chamber of the Federal Criminal Court or a federal administrative authority has ruled is a matter for the United Federal Assembly (Art. 381 lit. a of the Criminal Code ; cf. Art. 157 of the Federal Constitution ). If a cantonal authority has made a judgment, the respective cantonal pardon authority is responsible (Art. 381 lit. b StGB). With the consent of the convicted person, the request for pardon can be made not only by himself but also, for example, by the spouse (cf. Art. 382 StGB).

Belgium

In Belgium the king is responsible (Art. 110 of the Constitution ) with the countersignature of a Minister (Art. 106 of the Constitution); Government members can only be pardoned after parliamentary approval (Art. 111 of the Constitution).

Luxembourg

In Luxembourg the Grand Duke has jurisdiction (Art. 38 of the Constitution), countersigned by the Government (Art. 45); Pardons for members of the government require a request from the Chamber of Deputies (Art. 83).

Non-German speaking EU states

  • Denmark : The king is responsible; Ministers can only be pardoned with the consent of parliament (Constitution § 24); Ministerial countersignature is required (§ 14 of the Constitution).
  • Estonia : The President of the Republic is competent (Section 78, No. 19 of the Constitution).
  • Finland : The President of the Republic is responsible, he decides on the opinion of the Supreme Court (§ 105 of the Constitution in conjunction with § 58 of the Constitution).
  • France : The President of the Republic is competent (Art. 17 of the Constitution); Countersignature by the Prime Minister or the responsible minister is required (Art. 19 of the Constitution).
  • Greece : The President is responsible; it requires a proposal and the countersignature of the Minister of Justice as well as the report of a council consisting of a majority of judges (Art. 47 I of the Constitution); Ministers can only be pardoned with the consent of parliament (Art. 47 II of the Constitution ).
  • Ireland : The president is responsible, the law can declare other authorities responsible (constitution Art. 13 VI of the constitution); the president needs the council of the government (Art. 13 IX of the Constitution).
  • Italy : The President of the Republic is responsible (Art. 87 of the Constitution) with the countersignature of a Minister (Art. 89 of the Constitution).
  • Latvia : The President of the Republic has jurisdiction in accordance with the law (Art. 45 Constitution); Ministerial countersignature is required (Art. 53 of the Constitution).
  • Lithuania : The President of the Republic is competent (Art. 84, No. 23 of the Constitution); no countersignature is required (Art. 85 of the Constitution).
  • Malta : The President is responsible; he needs a council / expert opinion of the government (Constitution Art. 93 in conjunction with Art. 85 of the Constitution).
  • Netherlands : The king has jurisdiction in accordance with the law and on the recommendation of a court (Constitution Art. 122 I); Ministerial countersignature is required (Art. 47 of the Constitution)
  • Poland : The President is responsible (Constitution Art. 139); no ministerial countersignature is required (Art. 144 III, No. 18). The right to pardon does not apply to persons convicted by the State Court. After President Andrzej Duda pardonedthe designated secret service coordinator Mariusz Kamiński , who had been sentenced to three years in prison in the first instance for abuse of office, before the appeal hearing was held and informed the court that the proceedings had ended, there is a debate in Poland as to whether the President may pardon people before their final conviction and thus evade criminal prosecution.
  • Portugal : The president is responsible after hearing the government (Art. 134, lit. f of the Constitution); Countersignature by the government is required (Art. 140 I of the Constitution).
  • Sweden : The government as a whole (cabinet) is responsible (Chapter 11, § 13 of the Constitution).
  • Slovak Republic : The President is responsible (Constitution Art. 102 I, lit. j) with a ministerial countersignature (Art. 102 II of the Constitution).
  • Slovenia : The President is responsible (Art. 107 of the Constitution).
  • Spain : The king is responsible (Art. 62, lit. i of the Constitution), ministerial countersignature is required (Art. 64 I).
  • Czech Republic : The President of the Republic is responsible (Constitution Art. 62, lit. g of the Constitution).
  • Hungary : The President of the Republic is responsible (Art. 30a I, lit. k of the Constitution), ministerial countersignature is required (Art. 30a II of the Constitution).
  • Cyprus : The President (or Vice-President; due to the separation into two parts currently in effect) is responsible, if necessary at the suggestion of the Public Prosecutor General (Art. 53 of the Constitution).

United Kingdom

Theoretically, the British Queen has the right to pardon within the framework of her prerogative ; in accordance with the general constitutional convention, the monarch acts exclusively on ministerial advice. In practice, the minister of the interior exercises the right to pardon on behalf of the crown. In the case of Reg. Secretary of State for the Home Department, ex p Bentley [1994] QB 349, the Queen's Bench Division of the High Court ruled, contrary to earlier opinion, that the pardon, although the minister had a wide margin of discretion, was in principle judicable.

Russia

In Russia, the President has the right to pardon (Art. 89; Статья 89). The most explosive example of this at the beginning of the 21st century is the pardon of Mikhail Khodorkovsky by the Russian President Vladimir Putin in December 2013.

United States

Deed of pardon for Joe Arpaio by President Trump
Federal Criminal Law

In the United States , only in federal criminal matters does the President have the sole power to pronounce grace. The wording of the constitution allows pardons to be pronounced before a conviction has taken place. This competence of the president has been controversial several times in recent history:

  • In 1974, after Richard Nixon's resignation from the presidency in the wake of the Watergate affair , the incoming Vice-President Gerald Ford granted him a general pardon for any offense committed in office. Ford was nominated as Nixon Vice President in October 1973 after Vice President Spiro T. Agnew resigned. Some say that this pardon caused lasting political damage to President Ford.
  • Caspar Weinberger and several other actors in the Iran-Contra affair were pardoned by George HW Bush during the investigation , with the result that the questioning of high-ranking members of the government was discontinued. As a result, the roles of Bush , Reagan, and Rumsfeld were never fully clarified.
  • On his last day in office, Bill Clinton issued 140 pardons. That of the entrepreneur and tax evader Marc Rich , whom the US judiciary had persecuted in vain for years and whose extradition had been rejected by the Swiss Federal Supreme Court, met with great criticism; his successor, George W. Bush , was asked to reverse this pardon, but this would probably not have been permitted. Bush said it was important to create legal certainty for those affected in the long term ; therefore there could be no question of undoing the pardon granted by Clinton. At the same time, Clinton had pardoned his half-brother, Roger Clinton Jr. He was banned from doing business across state borders because of a previous drug offense. Bill Clinton also pardoned his former associate Susan McDougal , who was sentenced to 18 months in prison for refusing to testify about Clinton's Whitewater business.
  • In 2017, Joe Arpaio , the controversial sheriff of Maricopa County for various reasons , was pardoned by Donald Trump . He should have served a prison sentence because he did not want to implement a federal court order. Joe Arpaio was already seen as a vehement supporter of Donald Trump during the 2016 election campaign. In January 2020, Trump overturned Rod Blagojevich's remaining sentence ; he had wanted to sell Barack Obama's vacant Senate seat in exchange for bribes; he also committed blackmail by withholding funds for a children's hospital. In July 2020, Trump pardoned his then campaign assistant Roger Stone , who was sentenced to 40 months in prison for obstruction of justice, perjury and influencing witnesses.

As a rule, the Minister of Justice prepares pardons and checks whether the applicant is worthy of a pardon.

“A presidential pardon is usually a sign of forgiveness . A pardon is not a sign of rehabilitation, neither does it mean or establish innocence. For this reason, when processing a petition for clemency, the recognition of responsibility, repentance and the atonement for the crime are taken into account. "

- Ministry of Justice guidelines

A pardon has the consequence that the person in the matter in which the pardon was given is no longer considered to be the accused. Thus he loses (in this regard) the right to refuse testimony . The president can reduce, mitigate or postpone the sentence of a person who has already been convicted. In this case one speaks of a commutation and the "pardoned" person is still considered guilty. Likewise, after serving the sentence in full, a person can be pardoned to restore his honor. The Supreme Court has ruled several times about the importance of a pardon . George Wilson, a condemned mail robber, was pardoned by President Jackson . George Wilson did not accept the pardon, and so the court ruled that the pardon therefore had no legal effect. Wilson was eventually hanged. In the case of Burdick v. United States (1915) stated that accepting a pardon was tantamount to admitting guilt. However, it remains to be clarified how non-acceptance would be possible in the case of people who have already died (e.g. the former slave Henry Ossian Flipper , pardoned by Clinton) or in the case of a general amnesty. If the pardon was given after a guilty verdict, the entry in the criminal record is retained.

Another question that the courts have not yet clarified is whether a president can pardon himself. In the case of President Nixon, the Justice Department concluded that this was not possible. However, according to the 25th Amendment to the Constitution , the President can declare himself temporarily incapable of office, whereupon the Vice President takes over his business, pronounces the pardon, and the President returns to his office.

In the states

In the US states there are largely similar regulations as for the federal level: As a rule, the governors of the states are solely responsible for grace; In some constitutions there are exceptions for certain criminal offenses or certain categories of perpetrators (e.g. members of the government and civil servants), the pardon of which requires the consent of parliaments , governments, a special commission or the like. Some states also have grace boards or commissions that advise the governor.

The pardon procedure is particularly regulated in Texas : The governor can only refuse a pardon or grant a temporary stay; in this case the request goes to a special commission, the members of which are partly elected by parliament and partly appointed by the governor. Only at the request of this commission can the governor finally approve a pardon. A successful petition for clemency must therefore be approved by the governor in a preliminary decision, approved by the commission and again confirmed by the governor.

The United States is a relatively common state where the death penalty is imposed (see Death Penalty in the United States ). To the multitude of pardons it should be mentioned:

  • George Ryan , Governor of Illinois , pardoned all those sentenced to death in his state in January 2003, days before the end of his term in office.
  • According to a study, whites were pardoned significantly more often than blacks.
  • Pardon does not always mean release. For example, the German Dieter Riechmann , imprisoned since 1987 and on death row for 22 years , was pardoned in 2010 - to life imprisonment .
  • Mississippi Governor Haley Barbour pardoned Scott Sisters , who had been sentenced to life imprisonment in 1994, on condition that Gladys donated the kidney she needed to her sister Jamie.
  • As a result of the lost of his gubernatorial election in November 2019 governor pardoned Kentucky , Matt Bevin 428 people, including many violent offenders. He was sharply criticized for this by both Republicans and Democrats. Bevin then accused his critics of not being familiar with the details of the cases.

literature

  • Dimitri Dimoulis: The pardon in a comparative perspective: legal philosophical, constitutional and criminal law problems . Duncker & Humblot , Berlin 1996, ISBN 978-3-428-08771-6 (Zugl .: Saarbrücken, Univ., Diss., 1994/95).
  • Johann-Georg Schätzler: Handbook of the law of grace: grace - amnesty - probation; a systematic presentation with the regulations of the federal and state governments . CH Beck , Munich 1992, ISBN 978-3-406-34143-4 .
  • Hansgeorg Birkhoff, Michael Lemke: right of grace. Manual . 1st edition. CH Beck , Munich 2012, ISBN 978-3-406-57665-2 .
  • Cornelius Böllhoff: pardon and delegation: the delegation of the decision-making competence of the pardon right and its limits . 1st edition. Duncker & Humblot , Berlin 2012, ISBN 978-3-428-13816-6 (Zugl .: Halle (Saale), Univ., Diss., 2011).

Web links

Single receipts

  1. Butzer in: Schmidt-Bleibtreu / Hofmann / Henneke, Art. 60 GG, Rn. 37; Herzog in: Maunz / Dürig, Art. 60 GG, Rn. 37; a. A. Funk, Gnade und Gesetz , 2017, p. 90; Weyde, Grundzüge des Gnadenrechts , in: Vordermayer / Heintschel-Heinegg (Ed.), Handbook for the Public Prosecutor , 5th edition 2016, Rn. 7; Kern / Roxin, Criminal Procedure Law , 14th edition 1976, § 58, p. 303; Fischer, Legitimation of grace and amnesty in the rule of law , Neue Kriminalpolitik 4/2001, p. 21 (23)
  2. ^ Christian Waldhoff: pardon in: Staatslexikon, ed. by the Görres-Gesellschaft , Herder-Verlag, October 22, 2019.
  3. Hania Siebenpfeiffer: Bad Lust. Violent Crimes in Discourses of the Weimar Republic. Böhlau, Vienna 2005, ISBN 3-412-17505-6 , p. 30 limited preview in the Google book search
  4. cf. Cornelius Böllhoff: pardon and delegation; the delegation of the decision-making authority of the pardon and its limits. Berlin: Duncker & Humblot, 2012
  5. ^ A b Anja Eiardt, Sarab Borhanian: The Federal President's Pardon . Ed .: Scientific Services of the German Bundestag. 2007 ( online at: bundestag.de [PDF] Current term).
  6. http://www.nds-voris.de/jportal/portal/t/d8s/page/bsvorisprod.psml/action/portlets.jw.MainAction?p1=a&eventSubmit_doNavigate=searchInSubtreeTOC&showdoccase=1&doc.hl=0&doc.id=VVND -VVND000020379 & doc.part = S & toc.poskey = # focuspoint
  7. BVerfG, decision of April 23, 1969 - 2 BvR 552/63
  8. http://www.wz.de/home/politik/nrw/gnade-gibt-8217s-auch-fuer-ganoven-1.464158
  9. BeckOK GG / Pieper, 33rd Ed. 1.6.2017, GG Art. 60 Rn. 20.1
  10. full text (German translation)
  11. Full text (Italian) Art. 87 penultimate sentence: Può concedere grazia e commutare le pene.
  12. Poland: Constitutional lawyers sound the alarm Deutschlandfunk from November 25, 2015, accessed on April 10, 2016
  13. ^ Constitutional lawyer on Poland: "That has a revolutionary character" taz of April 8, 2016
  14. Prezydent nad sądem, Gazeta Wyborcza of March 31, 2016, p. 1
  15. full text
  16. constitution.ru
  17. ^ Daniel Brössler: Khodorkovsky's release - prisoner by Putin's grace. In: sueddeutsche.de. December 22, 2013, accessed December 16, 2014 .
  18. ^ "A presidential pardon is ordinarily a sign of forgiveness," the office's instructions say. “A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner's acceptance of responsibility, remorse and atonement for the offense. " How far can Trump go in issuing pardons? In: New York Times. May 31, 2018, accessed May 31, 2018 .
  19. Supreme Court of the United States: United States v. George Wilson January 1833
  20. Jump up ↑ jubilation and indignation after pardons for death row inmates. In: FAZ.net . January 12, 2003, accessed December 16, 2014 .
  21. Christiane Oelrich: Whites are pardoned significantly more often in the USA. on: www.t-online.de , December 5, 2011.
  22. German Dieter Riechmann is allowed to leave death row. on: www.augsburger-allgemeine.de , May 14, 2010.
  23. Susan Donaldson James: Supporters Applaud Plan to Release Scott Sisters in Kidney Deal ABCNews, December 30, 2010
  24. ^ Morgan Phillips: GOP, Dems call for probe of hundreds of pardons issued by ex-Kentucky Gov. Bevin. In: Fox News. FOX News Network, LLC, December 13, 2019, accessed January 14, 2020 .