Term and definition of amnesty
Als Amnesty (from Ancient Greek ἀμνηστία – amnestía = ‘forgetfulness’, ‘leniency’) in legal terms refers to a measure by which legislators or state authorities make certain circumstances ‘forgotten’ in criminal or civil law. As a rule, amnesty results in certain criminal offences or regulatory offences being retroactively declared exempt from punishment. Amnesty thus differs from a pardon, which is tailored to an individual person, while amnesty is pronounced in relation to groups or specific occasions.
Legal foundations of amnesty
Amnesty in German law
The German legal system lacks a general legal definition of the term amnesty. However, the government and parliament can enact an amnesty by law. Examples include the Amnesty Acts of various years (such as the Amnesty Act of 1970 and 1974), which provided extensive amnesties for certain offences, such as political crimes or minor violations.
Amnesty is not explicitly mandated in the Basic Law, but derives from the constitutional principle of legislative freedom and the principle of retroactive cancellation of punishment.
Forms of amnesty
General and special amnesty
- General amnesty refers to a multitude of acts, periods, or groups of people.
- Special amnesty targets a specifically defined group of persons or a certain category of act.
Unconditional and conditional amnesty
- Unconditional amnesty: Immunity from punishment applies without further requirements.
- Conditional amnesty: Certain requirements must be fulfilled, such as the payment of compensation.
Areas of application for amnesty
Amnesties are often granted in the following situations:
- In the course of political upheavals (such as regime changes, at the end of civil wars, or in transformation processes)
- Subsequently for offences committed under exceptional social circumstances
- For regulatory offences or minor crimes to relieve the criminal justice system
Functioning of amnesty
Immunity from punishment
With the enactment of an amnesty, the punishability of the pardoned act lapses. Penalties already imposed, if the amnesty is retroactive, are either rescinded or annulled. As a rule, the amnesty takes effect directly and may – depending on its structure – also cover ongoing investigations and court cases.
Objective and personal amnesty
- Objective amnesty: Focuses on the offence itself, regardless of the person who committed it.
- Personal amnesty: Covers specific groups of people, often defined by age, social status, or other characteristics.
Distinction from other mitigation measures
Amnesty versus pardon
Whereas amnesty covers a multitude of offences or groups of people, a pardon is granted individually and on a case-by-case basis. Amnesty operates generally and impersonally, while a pardon presupposes a conviction and annuls or mitigates the criminal judgment for the person concerned.
Amnesty versus statute of limitations
The statute of limitations means that, after a certain period, a criminal offence can no longer be prosecuted. In contrast, amnesty is an active legislative decision that, regardless of existing time limits, lifts prosecution and execution of the sentence for certain acts or offences.
Constitutional and international embedding of amnesty
Amnesty in international law
Many national constitutions and international agreements recognize rules on amnesty. However, international legal obligations – for example in international criminal law – provide exceptions to the applicability of amnesty. Particularly serious human rights violations, war crimes, and genocide are generally excluded from typical amnesty regulations.
Amnesty and fundamental rights
Amnesty measures must not conflict with constitutional fundamental principles. In particular, they are bound by the rule of law, the prohibition of retroactive effect, and the fundamental rights of those affected and harmed. The rule of law requires transparency, proportionality, and a factual justification for each amnesty.
Procedure and effect of an amnesty
Legislative procedure
In Germany, amnesties are usually decided by formal law in the Bundestag. The law defines:
- The objective and personal scope of application
- The effective date
- Any conditions, requirements, and exceptions
Consequences of amnesty
The effect of amnesty may impact various criminal and administrative aspects:
- Termination of investigation or criminal proceedings
- Annulment of final judgments
- Erasure of entries in the Federal Central Register
- Expiry of outstanding warrants and search requests
Amnesty may also have civil and administrative law consequences, such as claims for compensation by those affected.
Criticism and controversy
Amnesty is regularly the subject of legal-political debate. Critics argue that amnesties may undermine legal peace and weaken trust in the legal system. In contrast, it is argued that amnesties can be a tool for social and political reconciliation, especially after conflicts. Thus, in practice, a narrow framework is often imposed for amnesties.
Summary
Amnesty represents a significant element in the administration of criminal law, providing legislators with far-reaching possibilities for retroactive cancellation or mitigation of criminal sanctions. Its application always occurs within the tension between the requirements of legal certainty and the interests of social reconciliation. The rules on amnesty are clearly defined both nationally and internationally and are subject to particular scrutiny by legal scholarship and the legislator.
Frequently asked questions
Who is authorized to grant an amnesty?
The power to grant amnesty generally lies with the legislative authority of a state, i.e., with the parliament or another legislative body. Individual states may have specific provisions in their constitutions or statutes, such as a requirement for a qualified majority or the involvement of the executive branch as part of a countersignature obligation. In Germany, for example, a general amnesty can only be enacted through a formal law of the Bundestag. The judiciary is responsible solely for the implementation and enforcement of amnesty, not for its issuance. In an international context or with respect to international treaties, other institutions or international bodies may also decide on amnesty, for example, in the course of political peace processes.
Which crimes can be covered by an amnesty?
The scope of an amnesty is generally determined by the content of the underlying law or regulation. Often, minor offences, for example in connection with political demonstrations or certain mass offences, are included. Typically, serious crimes – such as violent crimes, sexual offences, or crimes against humanity – are expressly excluded from the effect of amnesty. This is intended to satisfy both the expectations of justice in society and the requirements of EU or international law. The amnesty law must precisely define which categories of offences and time periods are covered. Sometimes specific groups of persons (for example, officials or repeat offenders) are also excluded from amnesty.
What legal consequences result from the granting of an amnesty?
An amnesty results in criminal prosecution being dropped for the acts affected. Investigations or criminal proceedings already initiated are terminated, and existing convictions are set aside if they fall within the scope of the amnesty. A final conviction loses its effect, sentences are not enforced or are annulled; this includes both imprisonment and fines. Furthermore, amnesty may lead to secondary consequences such as lifting of professional bans or deletion of entries in the criminal register. However, the conduct underlying the criminal offence was actually committed – the amnesty only eliminates the legal consequences under criminal law, not the fact itself.
How does amnesty differ from a pardon?
While an amnesty regularly affects a large number of people and is based on legislation, a pardon concerns individual, specifically designated persons and is granted as an act of the executive. As already described, amnesty generally lifts prosecution or enforcement of punishment for a defined group of people within a defined scope. A pardon removes or mitigates the criminal sanction in a specific case, without declaring the act itself non-punishable for all involved. Pardons are often subject to conditions, whereas amnesties are usually not tied to additional requirements.
Does a victim of a crime have the right to appeal against an amnesty?
Victims’ rights are increasingly being considered in criminal proceedings. However, an appeal against the granting of amnesty is generally not provided, because amnesty is issued as an act of legislation or from sovereign state authority. As a result, those harmed or other affected persons generally have no legal recourse, whether in court or out of court, against an amnesty. Exceptions may exist if the underlying act of law violates constitutional guarantees. In such cases, abstract or concrete judicial review proceedings can be initiated before the relevant constitutional court, provided that the national legal system permits this.
What is the significance of amnesty in the context of international law?
At the international level, amnesties are discussed particularly in connection with transitional justice and the termination of armed conflicts. International treaties, such as the Rome Statute of the International Criminal Court, distinguish between permissible and impermissible amnesties. International provisions rule out amnesty for serious human rights violations, genocide, war crimes or crimes against humanity. The European Court of Human Rights has clarified that states are, as a rule, obliged to prosecute the most serious human rights violations and not to circumvent prosecution through amnesty. A conflict may arise where national amnesty laws collide with international obligations.
Can an amnesty be revoked or restricted retroactively?
The revocation of an amnesty that has already become final is generally problematic, as it retrospectively creates legal certainty in favor of those granted amnesty. A subsequent restriction or revocation is only regularly possible if this is provided for in the amnesty law itself by means of corresponding fallback clauses, conditions, or revocation reservations. In exceptional cases – for example, for internationally serious offences and due to international legal obligations – amnesties may be revoked later, where binding provisions (e.g., the prohibition of impunity for crimes against humanity) so require. Otherwise, the prohibition on retroactive punishment applies, meaning that retroactive criminal prosecution after the granting of amnesty is only legally possible to a very limited extent.
