What are the limits of a presidential pardon?

Chapters of the article

• The right to pardon
• Applying for a pardon
• Granting pardons in the past
• Controversial pardons

The right to pardon

The granting of pardons by the President of the Republic is a power already known in the constitution of Czechoslovakia. The President has the very exceptional right to intervene in a particular case decided by the criminal courts and to commute or remit the sentence imposed. Alternatively, he may order that criminal proceedings should not be initiated at all. He may also rehabilitate a convicted person.

The law and the Constitution do not specify the reasons for which a pardon may be granted, so it can be requested for almost any reason, but most often for social or health reasons. Thus, for example, when a convicted person is terminally ill and a prison sentence means, in effect, certain death in prison. Also, in situations where imprisonment would, for example, mean a difficult situation for minor children who are dependent on the convicted person for their livelihood, a pardon is often granted.

However, we know of other cases where the President has decided to grant a pardon, for example, because of doubts about the sentence imposed or the procedure followed by the prosecuting authority. These are the controversial cases of the convicted murderer Jiří Kajinek or the Lány forester Miloš Balák.

The President decides on pardons independently, with the exception of abolition (see below).
Our legal system knows more precisely three forms of pardon, which differ in their prerequisites and consequences:

• abolition – ordering that criminal proceedings not be initiated and, if initiated, that they not be continued. However, the accused has the right, within the statutory period of three days from the service of the order to discontinue the prosecution, to expressly insist that it be continued. However, in the context of the direct election of the President, this power of the President has been made conditional on the co-signature of the Prime Minister or a member of the Government authorised by him, and the Government is then responsible for it. This form of pardon is undoubtedly the most controversial of the three. Not only is the convicted person not punished, unless he or she insists on continuing the proceedings, but there is not actually a (full) trial, and so society has no chance of knowing whether the person is guilty or not.
• aggravation – remission or mitigation of a pending sentence. Its condition is that the court proceedings have taken place and the sentence has already been imposed (and possibly begun). The sentence can either be completely remitted – typically the convicted person does not have to go to prison. The other option is to commute the sentence – for example, to reduce the prison sentence for disproportionately long sentences.
• rehabilitation – extinguishing a conviction. Even if the sentence has already been served, a pardon can be granted in the form of so-called rehabilitation. The person is then regarded as if he or she had not been punished, his or her criminal record is therefore clean, and the previous (rehabilitated) offence is not taken into account even in terms of assessing recidivism in criminal proceedings.

Applying for a pardon

Anyone may apply for a pardon on his or her own behalf or on behalf of another person. It shall be submitted in writing (or electronically via a data box) and addressed to the Ministry of Justice. The latter collects them and prepares the President’s supporting documents, or makes a preliminary assessment of them.

The application should contain all identifying information about the applicant and the person to whom it relates (unless they are the same person). The court and file number should also be identified. The reasons why the application should be granted (in particular social or health) and, where appropriate, the documents that can be used to substantiate the alleged facts are key.

The Ministry of Justice will consider all the circumstances of the case on the basis of the application for a pardon. It may request a statement from the attending physician as to whether the person for whom the pardon is requested suffers from a serious illness or an incurable disease that is imminently life-threatening. The final decision rests with the President of the Republic.

Granting of pardons in the past

Presidents of the Czech Republic, starting with Václav Havel, have adapted their powers regarding pardons to a certain extent. President Havel transferred the power to deal with and, where appropriate, reject certain minor applications for pardons to the Minister of Justice.

This principle did not suit Václav Klaus, who abolished his predecessor’s procedure, and the procedure for pardon applications was therefore fully carried out by the Office of the President of the Republic.

Miloš Zeman has again partially reversed the situation by deciding that the Ministry of Justice should only refer applications to him for consideration in cases where the applicant suffers from a serious illness or incurable disease that is immediately life-threatening, i.e. in so-called humanitarian cases. As noted above, however, it has not always done so. The Ministry therefore refers to the Office of the President of the Republic for a decision only those applications that meet the criterion. If it does not, the Minister of Justice rejects the applications for clemency. However, a number of exceptions to this principle were eventually made.

Controversial pardons

Controversial pardons have been issued by all three post-collapse presidents.
Václav Havel pardoned Martin Odložil, the son of gymnast Věra Čáslavská. An argument with his father turned into a physical altercation, which resulted in his father hitting his head and dying. The court sent Odložil to prison for four years, but before the appeals court could rule on the case, President Václav Havel granted him a pardon. What was controversial about the case was both the fact that it was not an extraordinary case of the seriously ill type and, most importantly, that his mother, Věra Čáslavská, was Havel’s friend and advisor.

Václav Klaus has also been granted at least one highly publicised pardon. He granted it to the Jihlava businessman Zdeněk Kratochvíl, who was accused of tunnelling several companies. His accomplices were given prison sentences of many years by the court, but Kratochvíl’s sentence was no longer sufficient. Václav Klaus beat him to an abolition for the man. He justified this on the grounds of his serious psychological condition, which does not even allow him to understand the criminal proceedings. Kratochvíl continued to run large businesses.

Miloš Zeman has several contested pardons on his conscience. The first of these concerned the life-sentenced Jiří Kajínek, who, although he denied his guilt and became famous for his escape from prison, there was no doubt about his guilt from a criminal point of view. Nevertheless, the President was not sure of his guilt and pardoned the rest of his sentence.

The pardon of Miloš Balák, the director of the Lány Forestry Administration, in the form of remission and extinction of an unconditional prison sentence, a fine and a ban on activity, is relatively recent. Like Kajínek, Balák did not meet the conditions that the President himself imposed for granting pardons. The public understood the real reason for the pardon to be the President’s close relationship with the convict. The aforementioned case even led senators to consider filing a constitutional action against the President.

President Zeman won overwhelming public favour when he granted a pardon to a Polish couple, Jaroslaw and Karolina Kordys, who had been convicted of trafficking in psychotropic substances. Despite the fact that there were no victims in the case, the court sentenced them to eight years in prison, which appeared to the general public to be too harsh or unfair. Miloš Zeman pardoned the rest of their sentence, although no “social” reasons were given here either.

The last example, which we mentioned in the introduction, is the pardon granted to Jana Nečasová (formerly Nagyová), convicted in the case of abuse of military intelligence. In her case, the period of probation of her sentence was remitted. The justification, according to which many years had passed since the case and the convict had behaved properly during this time, was perceived by the public as purely formal. Thousands of similar cases could certainly be found, but they will not receive the President’s pardon. The decision in question, by which Miloš Zeman has completed his series of controversial pardons, can be described as going against the very purpose of the institution of clemency and can completely undermine public confidence in the legal system.

In the context of the presidential elections, some journalists have discussed whether the new eventual president could pardon himself. However, according to most constitutional lawyers, this is not possible, even in cases where the co-signature of the Prime Minister is not required. This would be contrary to the very purpose of a pardon, but also to the principles of the democratic rule of law.