Israel Democracy Institute: Pardon can be granted during trial; request is not an admission of guilt

A request for a pardon is not an admission of guilt, and President Isaac Herzog can theoretically pardon Prime Minister Benjamin Netanyahu even during the course of his trial, according to an analysis from the Israel Democracy Institute.

“In general, a pardon is an act of compassion and justice granted based on the individual with consideration of their unique personal circumstances,” wrote IDI in an analysis earlier this month, before Netanyahu submitted his official request. “Therefore, there are no preconditions for a pardon, and the law does not specify what the president’s considerations must be when reviewing a pardon request.”

“No law requires an admission of guilt as a condition for a pardon. A pardon may be granted even to someone who maintains their innocence, and it is meant to allow forgiveness, correction, or rehabilitation, not to determine guilt or innocence,” according to IDI’s Dana Blander.

The issue of pardoning someone before a ruling has been issued is more problematic.

“The general rule is that the president pardons those who have been convicted, or in the language of the law, ‘offenders,'” wrote Blander.

A pardon during legal proceeding is possible, according to the analysis, but is “rare and exceptional.”

During the 1984 Bus 300 affair, in which a pair of bound Palestinian terrorists were captured and executed following their failed hijacking of an intercity bus carrying 41 Israelis, President Chaim Herzog pardoned senior Shin Bet officials before their trial.

The Supreme Court said it was legal but warned it was an “exceptional authority that must be exercised only as a safety valve.”

Wrote Blander, “Following the ruling, the attorney general’s directives established that ‘as a rule, the president deals only with requests concerning someone who has been convicted. Handling requests before conviction will occur only in rare cases.'”

“It should be noted that during a trial, the authority to stay criminal proceedings in exceptional circumstances lies with the attorney general,” wrote IDI. “Similarly, the authority to withdraw an indictment lies with the prosecution. Therefore, a pardon during trial, which would effectively terminate ongoing proceedings, constitutes interference in the independence of criminal prosecution.”