I. The right of granting a pardon
Section g) of paragraph (4) of article 9. of the Fundamental Law stipulates that the President of the Republic shall have the right to grant individual pardons.
The individual pardons process has to be differentiated from general pardons (amnesty), the right of which is exercised by the National Assembly. We shall not discuss the latter at all.
Presidential pardons may granted for the sentence (incarceration, community service, fines, barring from profession or from driving, bans) and for the collateral sentences (barring from civil responsibilities, expulsion), whereas in the case of criminal measures it only covers conditional sentencing and detention for juvenile delinquents.
The President of the Republic is not bound by any conditions or circumstances when exercising his rights; however the President cannot proceed directly on pardons cases. Decision-making by the President is always dependent on a recommendation to the President of the Republic by the Minister of Public Administration and Justice or the Supreme Prosecutor. The President of the Republic shall not discuss the reasons for granting or denying a pardon. The ruling of the President enters into force if the Minister of Public Administration and Justice countersigns it later.
The right of the President of the Republic to grant a pardon does not extend to relief from the collateral consequences of a criminal record and to expunging the petitioner’s name from the criminal records registry. Our Office receives a significant number of petitions, requesting expungement from the criminal records, because the petitioner is unable to perform some kind of a – typically security guard – activity due to being listed in the criminal registry. The authority of the President of the Republic does not cover this, thus the pardons process cannot be conducted.
The individual pardon process is conducted in accordance with the stipulations of Section III. of Chapter XXIX. of Act XIX of 1998 on Criminal Procedures (hereinafter CP). Pursuant to §597 (4) of CP, petitions for the termination of the criminal process (individual procedural pardon) may be submitted to the authority acting in the case (investigative authority or to the courts, if the indictment has been made). When a court sentence has become final, petitions related to the punishment, to conditional sentences, the remission or commutation of a juvenile detention sentence, as well as petitions for relief from the collateral consequences of a criminal record have to be submitted to the competent first instance court.
Because the President of the Republic does not have the right of direct action on pardons cases, all petitions sent to the Office of the President of the Republic are forwarded to the competent authority or court to which they should have been addressed by law, provided that they contain the necessary data. This necessarily requires time, thus delays the process, therefore we suggest that petitions for pardons are sent to the competent authority or court.