Saturday, March 22, 2008
"Clemency" redirects here. For the town, see Clemency, Luxembourg.
A pardon is the forgiveness of a crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent church authority. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. The act of clemency is a reprieve. Today, pardons and reprieves are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise deserving (in the opinion of the pardoning official) of a pardon or reprieve. Pardons are sometimes offered to persons who, it is claimed, have been wrongfully convicted. However, accepting such a pardon implicitly constitutes an admission of guilt, so in some cases the offer is refused.
Pardons and clemency by country
Pardons
In Canada, clemency is granted by the Governor-General of Canada or the Governor in Council (the federal cabinet) under the Royal Prerogative of Mercy. Applications are also made to the National Parole Board, as in pardons, but clemency may involve the commutation of a sentence, or the remission of all or part of the sentence, a respite from the sentence (for a medical condition) or a relief from a prohibition (e.g., to allow someone to drive that has been prohibited from driving).
Clemency
Pardons and acts of clemency (grâces) are granted by the President of France, who, ultimately, is the sole judge of the propriety of the measure. The convicted person sends a request for pardon to the President of the Republic. The prosecutor of the court that pronounced the verdict reports on the case, and the case goes to the Ministry of Justice's directorate of criminal affairs and pardons for further consideration.
If granted, the decree of pardon is signed by the President, the Prime Minister, the Minister of Justice and possibly other ministers involved in the consideration of the case. It is not published in the Journal Officiel.
The decree may spare the applicant from serving the balance of his or her sentence, or commute the sentence to a lesser one. It does not suppress the right for the victim of the crime to obtain compensation for the damages it suffered, and does not erase the condemnation from the criminal record.
When the death penalty was in force in France, almost all capital sentences resulted in a presidential review for a possible pardon. Sentenced criminals were routinely given a sufficient delay before execution so that their requests for pardons could be examined. If granted, clemency would usually entail a commutation to a life sentence.
The Parliament of France, on occasions, grants amnesty. This is a different concept and procedure from that described above, although the phrase "presidential amnesty" (amnistie présidentielle) is sometimes pejoratively applied to some acts of parliament traditionally voted upon after a presidential election, granting amnesty for minor crimes.
Pardons and clemency in France
Similar to the United States, the right to grant pardon in Germany is divided between the federal and the state level. Federal jurisdiction in matters of criminal law is mostly restricted to appeals against decisions of state courts. Only "political" crimes like treason or terrorism are tried on behalf the federal government by the highest state courts. Accordingly, the category of persons eligible for a federal pardon is rather narrow. The right to grant a federal pardon lies in the office of the President of Germany, but he or she can transfer this power to other persons, such as the chancellor or the minister of justice. In early 2007 there was a widespread public discussion about the granting of pardons in Germany after convicted Red Army Faction terrorist Christian Klar, serving a six times life imprisonment sentence since 1982 and not eligible for parole until at least 2009, filed a petition for pardon. President Horst Köhler ultimately denied his request. For all other (and therefore the vast majority of) convicts, pardons are in the jurisdiction of the states. In some states it is granted by the respective cabinet, but in most states the state constitution vests the authority in the state prime minister. As on the federal level, the authority may be transferred.
Amnesty can be granted only by federal law.
Pardons in Germany
The Constitution of Greece grants the power of pardon to the President of the Republic (Art. 47, § 1). He can pardon, commute or remit punishment imposed by any court, on the proposal of the Minister of Justice and after receiving the opinion (not the consent necessarily) of the Pardon Committee.
Pardons in Greece
Prior to the handover of Hong Kong to China in 1997, the power of pardon was a royal prerogative of mercy of the monarch of the United Kingdom. This was used and cited the most often just prior to the handover from British to Chinese rule from inmates who had been given the death penalty (which was abolished in 1993) and did not have an alternative sentence from the court, and they, therefore, requested the Queen to exercise her power of mercy.
Since the handover, the Chief Executive of Hong Kong now exercises the power to grant pardons and commute penalties under HK Laws. Chap 211 Criminal Procedure Ordinance, Sec, 118 Saving of prerogative of mercy.
Pardons and clemency in Hong Kong
In the Islamic Republic of Iran, the Supreme Leader has the power to pardon and offer clemency under Article 110, § 1, §§ 11.
Pardons in Islamic Republic of Iran
Under the Constitution of Ireland Art 13 Sec 6 the President of Ireland can pardon convicted criminals "The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities". However this is only after the consent of the Government of Ireland has been granted. The President cannot pardon people without the Government's consent; to do so would spark a constitutional crisis that may lead to the impeachment of the president.
Pardons in Ireland
In Italy the President of the Republic can " ... grant pardons, or commute punishments ...", art. 87 of the Italian constitution. However, " ... no acts of the President can came into force unless they are signed also by the Minister they are proposed by ... ", art. 89 of the Italian Constitution. Concerning to the pardon, the proposing Minister must be the Minister of Justice, as we can understand by reading art 681 c.p.p. . The problem, at this moment, is related to the exact interpretation of the two articles of the Italian Constitution reminded above: do all of the acts of the President need a proposal and a sign of a Minister? or there are some acts that the President can take by himself, without any conditioning?. In other words, there are three different theories about the pardon in Italy:
The problem has been examined by the Constitutional Court of Italy, that ruled that the first theory is the correct one (the Minister of Justice is obliged to sign the act).
The Minister of Justice, nowadays, aided by his offices, collects information about the condemned to make a correct pardon purpose. With the pardon decree, President can either extinguish the punishment, or change kind of punishment in another one permitted by law. Pardon, unless is said otherwise in the decree, can't remove all the effects of a penal sentence (like the mention in the certificate of conduct), in fact, it extinguishes only the main punishment (prison or pecuniary sanction), 174 c.p.
President can take the pardon decree without any conditioning, and the Minister of Justice is obliged to sign the act.
President and Minister of Justice must agree to take the decree.
President is obliged to take the decree, simply by signing the Minister's proposal. Pardons in Italy
The President of the Russian Federation is granted the right of pardon by Article 89 of the Constitution of the Russian Federation. The Pardon Committee manages lists of people eligible for pardon and directs them to the President for signing. While President Boris Yeltsin frequently used his power of pardon, his successor Vladimir Putin is much more hesitant; in recent years he has not used pardon at all.
Pardons in Russia
Under section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), the President of the Republic of South Africa is responsible for pardoning or reprieving offenders. This power of the President is only exercised in highly exceptional cases.
To pardon a person is to forgive a person for his/her deeds. The pardon process is therefore not available to persons who maintain their innocence and is not an advanced form of appeal procedure.
Pardon is only granted for minor offences after a period of 10 years has elapsed since the relevant conviction.
For many serious offences (for example if the relevant court viewed the offence in such a serious light that direct imprisonment was imposed) pardon will not be granted even if more than 10 years have elapsed since the conviction.
Pardons in South Africa
A clearance certificate, must be obtained; this can be done at the nearest police station, from where the application will be sent to the Criminal Record Centre, and the certificate will be either mailed, or delivered to the police station concerned. A letter is then sent to the Department of Justice, Private Bag X81, Pretoria stating that it is an application for presidential pardon. A response can be expected within three months acknowledging receipt thereof, with attached forms from an Administrative Secretary of the Ministry of Justice and Constitutional Development. The process continues by completing and returning the application form.
Process for Application For Presidential Pardon
The power to grant pardons and reprieves is a royal prerogative of mercy of the monarch of the United Kingdom. It was traditionally in the absolute power of the monarch to pardon and release an individual who had been convicted of a crime from that conviction and its intended penalty. Pardons were granted to many in the 18th century on condition that the convicted felons accept transportation overseas, such as to Australia. The first General Pardon in England was issued in celebration of the coronation of Edward III in 1327. In 2006 all British soldiers executed for cowardice during World War I were pardoned, resolving a long-running controversy about the justice of their executions. (See Armed Forces Act 2006, [1].)
There are significant procedural differences in the present use of the royal pardon, however. Today the monarch may only grant a pardon on the advice of the Home Secretary or the First Minister of Scotland (or the Defence Secretary in military justice cases), and the policy of the Home Office and Scottish Executive is only to grant pardons to those who are "morally" innocent of the offence (as opposed to those who may have been wrongly convicted by misapplication of the law). Pardons are generally no longer issued prior to conviction, but only after conviction. A pardon is no longer considered to remove the conviction itself, but only removes the penalty which was imposed. Use of the prerogative is now rare, particularly since the establishment of the Criminal Cases Review Commission and Scottish Criminal Cases Review Commission, which provide a statutory remedy for miscarriages of justice.
According to the Act of Settlement a pardon can not prevent a person from being impeached by Parliament, but may rescind the penalty following conviction. In England and Wales nobody may be pardoned for an offence under section 11 of the Habeas Corpus Act 1679 (unlawfully transporting prisoners out of England and Wales).[2]
Pardons and clemency in the United States
In Christian theology, a pardon is the result of forgiveness, extended by God through Jesus. A pardoned person is forgiven their sins, and thus experiences new birth, or is born again. For more information, see:
Atonement
Atonement (Governmental view)
Confession
Sin
Substitutionary atonement
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