This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses:
The Regional Court in Warsaw sentenced MPs Maciej Wąsik and Mariusz Kamiński to two years’ imprisonment for offenses committed by public servants, in a judgment dated December 20, 2023.
The court convicted Maciej Wąsik and Mariusz Kaminski of acts for which they were pardoned by the President of the Republic of Poland in 2015, following their conviction by a court of first instance.
According to the Constitutional Tribunal’s jurisprudence, Article 139 of the Polish Constitution grants the President of the Republic an unlimited right of clemency, allowing him to erase the effects of a conviction both after a final verdict or after a first-instance court verdict.
The Speaker of the Sejm prematurely issued orders declaring the termination of the mandates of Maciej Wąsik and Mariusz Kamiński, despite the fact that they were not listed as convicted persons in the National Criminal Register on the day those orders were issued.
As a consequence, the Speaker of the Sejm unjustifiably suspended the voting rights of MPs Maciej Wąsik and Mariusz Kamiński. The Speaker of the Sejm’s decisions to extinguish those two MPs’ parliamentary mandates had previously been overruled by the Supreme Court’s Extraordinary Control and Public Affairs Chamber, which was tantamount to declaring that Maciej Wąsik and Mariusz Kamiński had not lost their parliamentary seats.
1. Introduction
The subject of this chapter is an analysis of the legality of two decisions by the Speaker of the Sejm on December 21, 2023, to order the termination of the parliamentary mandates of Law and Justice (PiS) MPs Maciej Wąsik and Mariusz Kamiński[1]. Speaker of the Sejm Szymon Hołownia’s decision was controversial because it was issued due to the conviction of the two MPs for crimes related to their operational activities as heads of the Central Anti-Corruption Bureau (CBA) in the so-called “land scandal” case, for which they were pardoned by the President of Poland in 2015. The criminal courts, however, did not recognize the effectiveness of the act of clemency because it was granted after a conviction in the first instance, and in their view the President can only pardon someone after a final conviction. Consequently, between 2015 and 2023, the criminal trial of Wąsik and Kamiński continued until the court issued a final conviction at the end of 2023.
2. Grounds, control and effects of the decisions of the Speaker of the Sejm on the ordering of the termination of M. Wąsik’s and M. Kamiński’s parliamentary mandates.
Hołownia’s order was issued on the basis of three provisions: Article 249 §1, Article 247 §1 item 2 and Article 11 §2 item 1 of the Election Code and Article 99 paragraph 3 of the Constitution of the Republic of Poland. The termination of the mandate of a deputy shall occur in the case of loss of the right to stand for elections or lack thereof on election day (Article 247 §1(2) of the Election Code). In turn, any person sentenced to imprisonment by a final judgment for an intentional indictable offence loses the right to be elected to the Sejm (Article 99(3) of the Polish Constitution and Article 11 §2(1) of the Election Code). If a deputy loses the right to be elected, the Speaker of the Sejm issues a decision ordering the termination of the mandate (Article 249 §1 of the Election Code).
In justification of both of the decisions of December 21, 2023, the Speaker of the Sejm determined that Mariusz Kamiński and Maciej Wąsik had lost their right to be elected as a result of the December 20, 2023 ruling of the Regional Court in Warsaw, ref. X Ka 613/23, which legally sentenced them to two years’ imprisonment for offenses committed by public servants.
MPs Wąsik and Kamiński appealed against both decisions of the Speaker of the Sejm to the Supreme Court. As a general rule, the Extraordinary Control and Public Affairs Chamber is the one competent to hear such appeals (Article 26 §1(11) of the Law on the Supreme Court[2]), but since its status is disputed by the other chambers of the Supreme Court[3] and European courts[4], the Speaker of the Sejm transferred the MPs’ appeals and the case file directly to the Chamber of Labor and Social Security. Consequently, the appeals were heard in parallel by two chambers.
The Chamber of Extraordinary Control and Public Affairs upheld the appeals and revoked both decisions of the Speaker of the Sejm on the termination of M. Wąsik’s and M. Kamiński’s parliamentary mandates[5]. Meanwhile, the Chamber of Labor and Social Security ruled that the decision of the Chamber of Extraordinary Control and Public Affairs in M. Kamiński’s case “is not a decision of the Supreme Court” and dismissed his appeal, upholding the decision of the Speaker of the Sejm confirming the expiration of his mandate[6]. In a reversal, the Chamber of Extraordinary Control and Public Affairs declared the decision of the Chamber of Labor and Social Security as being “devoid of legal force.”[7] For unknown reasons, the Chamber of Labor and Social Security declined to address the appeal of M. Wąsik.
The Speaker of the Sejm did not recognize the effect of the rulings of the Chamber of Extraordinary Control and Public Affairs, and considered his own decisions binding. Consequently, on January 5, 2024, the Head of the Chancellery of the Sejm decided to suspend the voting rights of MPs Mariusz Kamiński and Maciej Wąsik. At the same time, since January 25, 2024, i.e. since the fourth session of the Sejm of the 10th term, MPs Mariusz Kamiński and Maciej Wąsik have not been allowed into the Sejm buildings to exercise their parliamentary mandates, including taking part in the Sejm’s legislative work.
3. Assessment of the legality of the decisions of the Speaker of the Sejm to order the termination of the parliamentary mandates of M. Wąsik and M. Kamiński
Ordering the termination of parliamentary mandates based on the conviction of a second-instance court issued despite the President’s act of clemency after the first-instance court’s verdict is a complex and precedent-setting issue. A sound legal evaluation requires numerous circumstances to be taken into consideration. First, there are four arguments that demonstrate the legality of the Speaker of the Sejm’s action. Next, arguments will be identified that argue against the legality of the Speaker of the Sejm’s actions and outweigh the arguments raised in favor of legality.
3.1. Arguments demonstrating the legality of the decisions
First, the Speaker of the Sejm did not have the right to ignore the ruling of the Regional Court in Warsaw on December 20, 2023, ref. X Ka 613/23. His authority to order the termination of a parliamentary mandate is of a binding nature, which means that he is under an absolute obligation to issue an order if one of the prerequisites listed in Article 247 of the Election Code is fulfilled: “may not refuse to order the termination of the mandate if he determines that there is a basis (prerequisite) for the termination of the mandate, as defined by law.”[8] In other words, the termination of the mandate occurs ex lege with the occurrence of statutory prerequisites resulting in the expiration of the mandate[9].
In the case of Mariusz Kamiński and Maciej Wąsik, the prerequisite for the termination of their mandates expressly provided for in Article 247 §1(2) of the Election Code, i.e. the loss of the right to be elected as a result of sentencing to imprisonment by a final judgment for an intentional indictable offence in the form of the judgment of the Regional Court in Warsaw on December 12, 2023, X Ka 613/23, was met. The termination of the mandate occurred by law, as a result of the conviction, and the role of the Speaker of the Sejm was only to confirm the occurrence of this circumstance. He had no jurisdiction to review the Regional Court’s judgment for compliance with Article 139 of the Polish Constitution (presidential right of clemency).
Second, providing information in the National Criminal Register about a conviction is purely declaratory. It is not the information in the National Criminal Register that is the reason for the termination of the mandate, but the fact of the conviction itself, which can also be confirmed by a copy of the conviction. Article 248 §3 of the Election Code only imposes an obligation on the Minister of Justice to inform the Speaker of the Sejm of MPs’ entries in the National Criminal Register, which does not mean that the Speaker of the Sejm cannot obtain information about convictions from an equally reliable source, such as the court that issued the conviction.
Third, the Regional Court in Warsaw, when issuing the conviction of M. Kamiński and M. Wąsik, had the right to disregard the November 16, 2015 decision of the President of the Republic of Poland on the application of the right of clemency, because it was bound by the legal view of the Supreme Court on its ineffectiveness. In its resolution I KZP 4/17 dated May 31, 2017, the Supreme Court ruled that:
I. The right of clemency, as a power of the President of the Republic of Poland set forth in the first sentence of Article 139 of the Constitution of the Republic of Poland, may be exercised only against persons whose guilt has been established by a final court judgment (convicted persons). Only with such a view of the scope of this right is there no violation of the principles expressed in the text of Article 10 in conjunction with Article 7, Article 42(3), Article 45(1), Article 175(1) and Article 177 of the Constitution of the Republic of Poland.
II. The application of the right of clemency before the date of final judgment has no procedural effect.
The resolution of the Supreme Court in the case I KZP 4/17 was, by virtue of Article 441 §3 of the Code of Criminal Procedure, binding on the three-member panel of the Supreme Court hearing the cassation from the judgment of the Regional Court of 30/3/2016, which discontinued criminal proceedings in the case of M. Kamiński and M. Wąsik due to the 2015 act of clemency. In a judgment of June 6, 2023, II CT 96/23, the Supreme Court revoked the order of discontinuance of March 30, 2016 due to the ineffectiveness of the act of clemency, and sent the case back to it for re-examination. In turn, the Regional Court, pursuant to Article 442 §3 of the Code of Criminal Procedure, was bound by the view of the Supreme Court expressed in the judgment II KK 96/23[10]. Consequently, the Regional Court had no choice but to hear the case on its merits. The aforementioned decision of the Constitutional Tribunal of 2/6/2023, Kpt 1/17 concerned a competence dispute between the Supreme Court and the President of the Republic of Poland, and was therefore not addressed to the Warsaw Regional Court. The Regional Court remained bound by Articles 441 §3 and 442 §3 of the Code of Criminal Procedure, the constitutionality of which was never challenged. Besides, one can debate the very legal validity of the Supreme Court decision, which was issued despite the absence of a real dispute of competence in the sense accepted in the doctrine of constitutional law[11] – this is because the Supreme Court did not usurp the authority to pardon anyone, but considered what legal effects an act of clemency has in criminal proceedings before a court of second instance.
Fourth, the Speaker of the Sejm had the right to ignore the rulings of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court overturning its decisions. Firstly, the effects of the decision of the Chamber of Extraordinary Control and Public Affairs in M. Kamiński’s case were nullified by the decision of the Chamber of Labor and Social Security, which dismissed his appeal in the same case. Secondly, regardless of the Labor Chamber’s actions, the Control Chamber acted in clear excess of its authority. The competence of the Chamber of Extraordinary Control and Public Affairs is limited to verifying whether one of the circumstances proving the expiration of a mandate by law has actually occurred (Article 247 §1 in conjunction with Article 250 §2 of the Election Code). Whereas, the Chamber of Extraordinary Control and Public Affairs went a step further, conducting a review of the legality of the ruling X Ka 613/23 of December 20, 2023 of the Warsaw Regional Court. Assessment of the legality of a final judgment in a criminal case is possible only by way of a cassation review (Article 519 of the Code of Criminal Procedure), exercised by the Criminal Chamber of the Supreme Court, or by way of an extraordinary appeal (Article 89 of the Law on the Supreme Court), examined by the Chamber of Extraordinary Control and Public Affairs. However, the ruling in question by the Warsaw Regional Court was not successfully challenged by either a cassation or an extraordinary appeal. Until it is formally rescinded in an appropriate manner, it is binding. The Chamber of Extraordinary Control and Public Affairs was not entitled to ignore its implications.
3.2. Arguments showing the illegality of the decisions
First, the Speaker of the Sejm should have ignored the ruling of the Warsaw Regional Court of December 12, 2023, X Ka 613/23, because it was issued in violation of Article 139 of the Polish Constitution. This is because the court convicted Kamiński and Wąsik for acts for which they were pardoned by the President of the Republic of Poland already in 2015, after conviction by the court of first instance. According to the Constitutional Tribunal, Article 139 of the Constitution of the Republic of Poland grants the President of the Republic of Poland the unlimited right of clemency, allowing him to erase the effects of a conviction both after a final judgment and after the first instance court has issued a judgment (so-called individual abolition)[12]. Contrary to the view expressed by the Speaker of the Sejm, the role of the state body is not to mechanically apply a legal provision, but to read the full legal norm, including after taking into account the totality of the circumstances of the case. This follows from both the constitutional principle of the rule of law and the specific principle of adherence to the law.
Second, the Speaker of the Sejm prematurely issued orders declaring the termination of the mandates of M. Wąsik and M. Kamiński, despite the fact that on the date of their issuance they were not listed as convicted persons in the National Criminal Register. The Speaker of the Sejm should have awaited information from the Minister of Justice on the entry of M. Wąsik and M. Kamiński into the National Criminal Register (in accordance with the procedure provided for in Article 248 §3 of the Election Code). Meanwhile, the Speaker of the Sejm relied on a mere copy of the conviction. This is an accessory argument, but in a situation where the Speaker of the Sejm himself limits his role to the mechanical application of a legal provision without taking into account the totality of the circumstances and the full legal situation, waiting for an entry in the National Criminal Register would be a logical and necessary step in determining the prerequisites for determining the expiration of the mandates of M. Wąsik and M. Kamiński.
Third, the Warsaw Regional Court itself should have ignored the Supreme Court’s ruling II KK 96/23 of June 6, 2023, ordering it to re-examine the case taking into account the Supreme Court’s resolution of May 31, 2017, I KZP 4/17 stating the ineffectiveness of an act of clemency issued before a final conviction. The Supreme Court, in issuing its resolution in I KZP 4/17, “created the right to give presidential prerogative orders, supposedly generally valid and unchallengeable, a kind of judicial ’enforceability clause’ in specific cases.”[13] Furthermore, in issuing the judgment in the case II KK 96/23, the Supreme Court ignored the decision of the Constitutional Tribunal of June 2, 2023, Kpt 1/17, according to which “the right of clemency is an exclusive and uncontrollable competence of the President of the Republic of Poland that produces final legal effects” and “the Supreme Court has no authority to exercise control with legal effect over the exercise of the competence of the President of the Republic of Poland [regarding the right of clemency].” The CT ruling had precedence over the ruling of the Supreme Court, as an act interpreting constitutional law, so the Regional Court should take into account the former and disregard the latter.
Fourth, notwithstanding the above, both decisions of the Speaker of the Sejm were overruled by the Chamber of Extraordinary Control and Public Affairs of the Supreme Court, which was tantamount to recognizing that M. Kamiński and M. Wąsik did not lose their parliamentary mandates. Nonetheless, as of January 5, 2024, the Speaker of the Sejm suspended the voting rights of the two deputies, citing court orders that had previously been deemed invalid. The deputies were thus deprived of their parliamentary rights without legal basis.
4. The systemic consequences of the unlawful actions of the Speaker of the Sejm
As a result of the unlawful interference by the Speaker of the Sejm in the composition of the Polish Sejm of the 10th term, a doubt arose regarding the compatibility of the composition of the Sejm with the Polish Constitution, and consequently regarding the Sejm’s ability to legislate.
This doubt is shared by the Constitutional Tribunal, which has consistently held that the Speaker of the Sejm has led to a defective formation of the composition of the Sejm, which under the provisions of the Constitution is composed of 460 Deputies (Article 96(1) of the Constitution), who are representatives of the Nation (Article 104(1) of the Constitution), as the supreme power in the Republic of Poland (Article 4(1) of the Constitution), resulting in a violation of the principle of adherence to the law (Article 7 of the Constitution).
As a result, by illegally limiting the composition of the Sejm, Speaker Hołownia deprived it of the characteristics of a constitutional legislative body (judgment of 19/06/2024,K 7/24; judgment of 10/09/2024, U 4/24; TK judgment of 26/11/2024, K 14/24).
5. Summary
The Regional Court in Warsaw sentenced MPs Maciej Wąsik and Mariusz Kamiński to two years’ imprisonment for offenses committed by public servants, in a judgment dated December 20, 2023. The verdict has been criticized as politically motivated, and the case involved operational actions taken by them as heads of the Central Anti-Corruption Bureau in 2006-2007.
The court convicted Maciej Wąsik and Mariusz Kaminski of acts for which they were pardoned by the President of the Republic of Poland in 2015, following their conviction by a court of first instance. According to the Constitutional Tribunal’s jurisprudence, Article 139 of the Polish Constitution grants the President of the Republic an unlimited right of clemency, allowing him to erase the effects of a conviction both after a final verdict or after a first-instance court verdict.
The Speaker of the Sejm prematurely issued orders declaring the termination of the mandates of Maciej Wąsik and Mariusz Kamiński, despite the fact that they were not listed as convicted persons in the National Criminal Register on the day those orders were issued.
The Warsaw Regional Court itself should have taken into account the applied right of clemency, regardless of the Supreme Court’s ruling of June 6, 2023, which ordered a retrial taking into account the Supreme Court’s resolution of May 31, 2017, stating the ineffectiveness of the act of clemency issued before the final conviction. And this is because the Constitutional Tribunal, in its decision of June 2, 2023, ruled that “the right of clemency is an exclusive and non-controlled competence of the President of the Republic that produces final legal effects” and “the Supreme Court does not have the authority to exercise control with legal effect over the exercise of the powers of the President of the Republic [regarding the right of clemency]”.
As a consequence, the Speaker of the Sejm unjustifiably suspended the voting rights of MPs Maciej Wąsik and Mariusz Kamiński. The Speaker of the Sejm’s decisions to extinguish those two MPs’ parliamentary mandates had previously been overruled by the Supreme Court’s Extraordinary Control and Public Affairs Chamber, which was tantamount to declaring that Maciej Wąsik and Mariusz Kamiński had not lost their parliamentary seats.
As a result of the unlawful interference by the Speaker of the Sejm in the composition of the Polish Sejm of the 10th term, a doubt arose regarding the compatibility of the composition of the Sejm with the Polish Constitution, and consequently the Sejm’s ability to legislate. This doubt is shared by the Constitutional Tribunal, which has consistently held that the unlawful restriction of the composition of the Sejm of the Republic of Poland deprives it of the characteristics of a constitutional legislative body (judgment of June 19, 2024, K 7/24; judgment of September 10, 2024, U 4/24; TK judgment of November 26, 2024, K 14/24).
Jerzy Kwaśniewski
[1] Scans of both decisions are available at: https://www.sejm.gov.pl/sejm10.nsf/komunikat.xsp?documentId=4E4F404D8E200C17C1258A8C0049DD47 (5/12/2024).
[2] Law of December 8, 2017 on the Supreme Court (OJ 2024, item 622).
[3] See the resolution of a panel of the combined Chambers of Civil, Criminal and Labor and Social Security of the Supreme Court of January 23, 2020, ref. BSA I-4110-1/20.
[4] See in particular the ECHR judgment of November 23, 2023, Walesa v. Poland, and the CJEU judgment of December 21, 2023, C-718/21, along with the case law cited therein.
[5] Decisions of the Supreme Court of 4/1/2024, I NSW 1268/23 and of 5/1/2024, I NSW 1267/23.
[6] Decision of the Supreme Court of 10/1/2024, II PUO 2/24.
[7] Decision of the Supreme Court of 12/4/2024, I NSW 1267/23.
[8] A. Kisielewicz, J. Zbieranek, remark 1 on Article 249, in: K. W. Czaplicki et al., Kodeks wyborczy. Komentarz [Polish Election Code. Commentary], LEX 2018.
[9] As per D. Lis-Staranowicz, Niepołączalność mandatu parlamentarnego w polskim prawie konstytucyjnym, Warsaw 2005, p. 244; K. Kubuj, W sprawie prawomocności i wykonalności postanowienia marszałka Sejmu stwierdzającego wygaśnięcie mandatu poselskiego, “Przegląd Sejmowy” 2011, No. 6, p. 141; K. Skotnicki, W sprawie prawomocności i wykonalności postanowienia marszałka Sejmu stwierdzającego wygaśnięcie mandatu poselskiego, “Przegląd Sejmowy” 2011, No. 6, p. 147 et seq.
[10] Article 442 §3 of the Code of Criminal Procedure also applies before the appellate court in cases where, as a result of a cassation or resumption of proceedings, the decision of that court has been reversed and the case has been remanded to the appellate court for re-examination (Articles 537 §2, 518, 547 §2 and 545 §1) – see D. Świecki, rmk. 32 on Article 442, in: D. Świecki (ed.) Kodeks postępowania karnego. Volume II. Komentarz aktualizowany, LEX 2024.
[11] P. Black, Konstytucyjne spory kompetencyjne (wybrane zagadnienia), “Przegląd Prawa Konstytucyjnego” 2014, No. 2, p. 78.
[12] Judgments of the CT of 17/7/2018, K 9/17 and 26/6/2019, K 8/17, and the decision of the CT of 2/6/2023, Kpt 1/17.
[13] D. Dudek, The right of presidential clemency disapproved of by the Supreme Court, “Dziennik Gazeta Prawna” June 13, 2023, https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/8732158,prawo-laski-prezydenta-sad-najwyzszy.html
