Definition and legal classification of pardon
The term pardon designates in law the complete or partial remission of a court-imposed sentence after it becomes final and binding. The pardon is an act of clemency that, as a rule, occurs outside regular criminal proceedings and is an expression of the state’s right of clemency. It is particularly relevant in the context of the enforcement of prison sentences, fines, and ancillary consequences of conviction.
Pardon constitutes a significant aspect of sentencing and sentence enforcement. It serves to take into account individual circumstances and particular hardships after a legally binding conviction. In Germany, alongside probation, suspension of remainder of sentence, and clemency, it is an important instrument of clemency practice.
Legal basis for pardon
Constitutional framework
The right to pardon derives from the state’s right of clemency, which is anchored in the Basic Law. According to Article 60 paragraph 2 of the Basic Law, the Federal President has the right to grant pardons to individuals. The federal states regulate pardons for penalties imposed under state law and those imposed directly by state authorities within the framework of their respective state constitutions and implementing laws.
Statutory foundations
Criminal Code (StGB)
The Criminal Code itself does not contain an explicit provision on pardon; rather, this instrument is primarily applied within the context of clemency practice. General regulations, however, exist in the Prison Act and in the respective implementation laws of the federal states.
Provisions on sentence enforcement law
According to § 453 of the Code of Criminal Procedure (StPO) and the state legislative provisions on sentence enforcement, a pardon can be requested from the relevant clemency body (e.g., sentence enforcement authority or state chancellery). The detailed procedural rules are set out in the clemency regulations of the individual federal states.
Federal law clemency rules
In cases involving penalties governed by federal law, the Federal President decides on issues of pardon; in practice, however, these decisions are prepared by the Federal Ministry of Justice.
Requirements and extent of pardon
Personal and substantive requirements
A pardon can only be granted after the judgment has become final and, in most cases, only after at least partial service of the sentence. As a rule, a clemency petition must be submitted by the convicted person or a third party, asserting extraordinary circumstances or special hardships that have arisen subsequently. Typical reasons include severe illness, significant disadvantages, unforeseeable emergencies, or the convict’s demonstrable progress in reintegration.
A pardon may refer to:
- the remainder of a prison sentence
- the entire sentence (total pardon)
- ancillary consequences such as driving ban, occupational ban, or monetary conditions
Extent and limits
A pardon may be granted for the entire outstanding sentence or be limited to a part thereof. A complete pardon (“total pardon”) is an exception; partial remission, focusing on the remaining part of the sentence yet to be served, is more common. Ancillary penalties and measures of rehabilitation and security are generally not subject to pardon, unless they are expressly included in the decision.
Property law consequences, such as restitution, compensation for damages, or sentences that have already been enforced, cannot be remitted.
Procedure for a pardon petition
Filing and review
The pardon procedure usually begins with a written clemency petition by the convicted person or close associates. This is submitted to the competent authority (such as the state chancellery, ministry of justice, or sentence enforcement authority). The authority examines, based on the regulations governing clemency, whether the requirements for a pardon are met.
Common review criteria include: seriousness of the offense, conduct of the convicted person during enforcement, social environment, health condition, and current life circumstances.
Involvement of other authorities
Depending on the stage of the proceedings, expert opinions may be obtained and statements may be requested, for example, from the public prosecutor’s office, the correctional institution, or victim protection organizations.
The responsible clemency body makes the final decision. There is no legal entitlement to a pardon; the process is fundamentally shaped by the discretion of the authority.
Decision and legal consequences
The pardon is granted by means of an administrative act. The decision is final; judicial review only occurs in exceptional cases, such as gross procedural errors or constitutional violations.
The consequence of the pardon is the immediate or deferred termination of sentence enforcement with respect to the remitted sentence. Any existing conditions of probation or ancillary consequences remain unaffected, unless they are also included in the pardon.
Distinction from related legal concepts
Clemency and amnesty
Pardon must be distinguished from clemency even though both concepts are based on the right of clemency. While pardon usually refers to the remission of a remaining sentence to be served, clemency may also include associated acts such as the conversion or suspension of a sentence.Amnesties on the other hand, are general remissions—usually by law—of entire groups of sentences in certain political or historical contexts. They differ markedly from individual pardon, both in terms of their scope and legal effect.
Exemption from punishment and probation
Pardon cannot be equated with judicially determined exemption from punishment, as it does not involve an acquittal or declaration of innocence. Suspension of sentence or the suspension of the remainder of the sentence, in contrast, is a judicial decision under sentence enforcement law and is not part of clemency practice.
Practice and significance of pardon
In criminal law practice, pardon is an exceptional instrument and is used to address special situations that could not be foreseen during judicial sentencing. Its practical significance lies mainly in the humanitarian sphere, for instance where there are serious developments in the health of prisoners or severe blows of personal fate.
Statistical data on the extent of pardon are rarely published, since these are always individual decisions and there are no legal entitlements. The lasting purpose of pardon is to provide a corrective whenever the rigid application of criminal law would result in unjust hardship.
Literature and further reading
- Fischer, StGB, §§ 56ff. (Commentary on clemency practice)
- Maurach/Schroeder/Maiwald, Corrections (sections on clemency law)
- Clemency regulations of the federal states (available through the respective ministries of justice)
- BVerfG, Decision of 04.11.2016 – 2 BvR 2172/16 (on the constitutional classification of clemency law)
This article provides a comprehensive and structured explanation of the meaning, legal basis, procedure, and practice of the term pardon in German law.
Frequently Asked Questions
Who is responsible for the decision on a pardon in Germany?
In Germany, the decision on pardon is primarily the responsibility of the court that imposed the sentence. Implementation follows the provisions of the Code of Criminal Procedure (StPO) and sentence enforcement law. After a judgment becomes formally final, prosecution services are usually involved, or—in clemency proceedings—the respective state ministry of justice or, in individual cases, the Federal President. A pardon may be issued by order, with the legal basis for remission of remainder of sentence governed in particular by § 454 StPO and § 56g para. 1 sentence 2 StGB. The decision generally requires an appropriate application, for example by the convicted person, their defense counsel, or the public prosecutor.
What are the statutory bases for pardon?
German law provides several legal bases for pardon, depending on the procedural situation. Key provisions are § 56g para. 1 sentence 2 StGB (remission of remainder of sentence on probation), § 59b para. 2 StGB (sentence in case of warning with sentence reservation), § 455a StPO (suspension of sentence in case of serious illness), as well as clemency under Article 60 GG and the clemency regulations of the federal states. These provisions set out the conditions under which a sentence may be wholly or partially remitted and establish the legal route for the respective procedure.
What requirements must be met for a pardon?
Pardon is subject to strict formal and material requirements. In the case of remission of the remainder of a sentence after part of a prison sentence has been served (§ 56g para. 1 StGB), good conduct during the probation period and the absence of further offenses are regularly decisive. As a rule, the social prognosis must be favorable, that is, there must be no reason to expect the convicted person to commit further offenses in the future. In clemency procedures, extraordinary personal, social, or health reasons play a role, which make continued enforcement of the sentence appear unreasonable. Each individual case is weighed comprehensively, taking into account the sentencing considerations and the purpose of the sentence enforcement.
What is the difference between remission of remainder of sentence and a full pardon?
Remission of the remainder of a sentence refers to situations where part of the sentence has already been served and only the remaining part—often within a probation period—is remitted (§ 56g StGB). Any reparation made is acknowledged. A full pardon, on the other hand, refers to the complete removal of an imposed sentence, which may not have been enforced at all or enforcement is entirely lifted, for example, as a result of a special clemency decision. The latter is, however, very rare and usually reserved for exceptional individual cases, while remission of remainder of sentence is a regulated aspect of criminal law.
Can fines also be remitted and, if so, under what conditions?
Fines are basically also subject to potential remission, but the statutory thresholds are particularly high. In particular, in cases of inability to pay under § 459f StPO, the enforcement authority may apply for a remission; the question of remission is regularly examined in the event of permanent inability to pay or in cases of particular hardship. In exceptional instances, it is also possible to refrain from converting a fine into substitute imprisonment (cf. § 459c StPO). Clemency proceedings may also take into account social hardship or existential grounds.
Does a pardon affect the certificate of good conduct?
If a sentence is remitted (wholly or in part), this generally does not affect an already recorded entry in the certificate of conduct in accordance with the Federal Central Register Act (BZRG). However, remission of the remainder of sentence adjusts the deletion periods, as the date of remission is decisive for the calculation of the period (§ 45 para. 4 BZRG). The fact of remission remains recorded in the authority’s documentation, but may have a mitigating effect on future criminal assessments or in the event of renewed criminality. A total act of clemency could, in rare instances, also result in the removal or deletion of entries from the register, but only due to explicit legal or administrative order.
Is there a remedy against the rejection of a pardon?
If remission of the remainder of sentence is refused within the scope of formal sentence enforcement proceedings, the party concerned may file an immediate complaint pursuant to § 462 StPO, which will be reviewed by the competent Regional Court. In clemency proceedings, however, there is no right to appeal, as it is an extraordinary decision that is not justiciable, with review only in very rare exceptions—such as in cases of manifest violation of the right to be heard—possible via constitutional complaint or supervisory appeal. Legal protection in clemency proceedings is therefore considerably limited.
