Individual Pardon in the Rule of Law

Observations and recommendations

Abstract

The concept of individual pardon is not defined in the Fundamental Law, this possibility is only laid down as a rule of jurisdiction of the President of the Republic. The question arises as to the relationship between the institution of pardon and the law. Three simplistic answers are possible: one is that ‘pardon precedes law’, i.e., that pardon is a completely lawless institution. According to the other approach, pardon is to be granted only in accordance with the law, i.e. ‘pardon in accordance with the law’, because pardon - as a state action - is subject to the rule of law. The third group consists of opinions arguing for the abolition of the pardon of the head of state under the slogan ‘law instead of pardon’. The paper reviews the arguments in favour of presidential pardon, which provide the basis for a framework of requirements and expectations of the rule of law regarding the exercise of the right of the President of the Republic to individual pardon. In doing so, it discusses the justification of pardon in the rule of law, the relationship between pardon and the separation of powers, the aspects of pardon, its exceptions and prohibitions, as well as the problems of its arbitrariness and regulation, and the specificities of the decision of the head of state.