Pardons and Transferred Prisoners
An English soccer fan, S, who had been in Bulgaria to watch a game, was convicted of attempted murder and sentenced to prison: but another man, G, made a signed confession to the offence from the UK. The Bulgarian courts rejected an appeal on the basis of G's confession. S was then returned to the UK to serve his sentence under the Council of Europe Convention on the Transfer of Sentenced Persons 1983, as enacted in domestic law through the Repatriation of Prisoners Act 1984. He sought a pardon, a prerogative power exercised by the Secretary of State for Justice: it was refused on the basis that it was not possible when the Convention was involved. The question arising in the judicial review of the refusal was whether this was a correct interpretation of the Convention. The key provisions are Article 12, which provides that "Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws." And Article 13, which states that "The sentencing State alone shall have the right to decide on any application for review of the judgment." The Secretary of State suggested that a pardon could only be granted by a detailed review of the merits of the conviction, which would be an impermissible review of the judgment of the Bulgarian courts. S submitted that the prerogative was a flexible power expressly preserved for use by Art 12 without qualification by Art 13. The Court accepted the claimant's arguments: Art 12 permitted pardons to be granted (which was an executive power), whereas Art 13 was limited to judicial processes; a pardon was a flexible process designed to secure justice where a completed court process had failed to do that, as for example where fresh evidence became available which could not be raised in a court – but this did not amount to a review of the court decision.
