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The case of pardoning Mariusz Kamiński. “Rzeczpospolita”: The Constitutional Tribunal should have discontinued the application four years ago

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The case of pardoning Mariusz Kamiński, currently the head of the Ministry of Interior and Administration, in the Constitutional Tribunal should have been discontinued four years ago, because the application regarding the dispute over powers between the president and the Supreme Court had already been submitted by the former marshal of the Sejm, Rzeczpospolita wrote on Friday.

Constitutional Court is to deal with the dispute over powers initiated in 2017 between the president and the Supreme Court regarding the law of clemency. This is related to the non-final judgment against the Minister of the Interior Mariusz Kaminskideputy minister Maciej Wasik and other people from the former management of the CBA and their pardon in 2015 by the president Andrzej Duda.

“Rzeczpospolita”: The Constitutional Tribunal discontinued cases based on motions of the Marshals of the Sejm and deputies whose term of office had expired

“Rzeczpospolita” wrote on Friday that the application of Marek Kuchciński, the former Speaker of the Sejm, who has been in the Constitutional Tribunal for six years, “should have been discontinued four years ago”. The newspaper pointed out that “the Constitutional Tribunal, which results from the jurisprudence, discontinues cases based on the motions of the Marshals of the Sejm and deputies whose term of office has expired”.

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As the daily explained, the Constitutional Tribunal applies the “principle of discontinuation”, which means that when the term of office of the Sejm ends, all motions from the marshal or deputies lose their validity. As we read in the publication, “with regard to the Marshal of the Sejm, the Tribunal ruled so for the first time in the decision of December 17, 2007 (case no. Pp 1/07), stating that “the loss of the applicant’s active legitimacy – the Marshal of the Sejm of the 5th term – does not allows for the substantive examination of the case, and therefore it is necessary to discontinue the proceedings.

The seat of the Constitutional Tribunal in Al.  Szucha in Warsaw

The seat of the Constitutional Tribunal in Al. Szucha in WarsawRadek Pietruszka/PAP

“Rzeczpospolita” noted that also the president of the Constitutional Tribunal, Julia Przyłębska, had already discontinued such proceedings, including on November 7, 2016 (SK 40/12). At that time, it was stated that “the performance of marshal’s duties – in terms of the position in the proceedings before the Constitutional Tribunal – may only take place within the time limits of the term of office of the chamber and the exercise of the parliamentary mandate itself in this term”.

One of the lawyers quoted by “Rzeczpospolita” said that “he is surprised that to this day neither Ombudsmanwhich joined the proceedings, nor the opposition filed a motion for discontinuance.

The newspaper noted that the dismissal of Kuchciński’s application would pave the way for the Supreme Court to issue a cassation judgment on June 6, six years after the conviction of Kamiński and Wąsik.

Kamiński and Wąsik pardoned before the final verdict

In March 2015, the Warsaw-Śródmieście District Court sentenced the former head of the CBA, Mariusz Kamiński, and his deputy, Maciej Wąsik, to three years in prison in the first instance, for, inter alia, abuse of powers and illegal operational activities of the CBA during the “land scandal” in 2007. Two other former members of the CBA management were sentenced to sentences after 2.5 years.

Before the District Court in Warsaw examined their appeals, in November 2015, President Andrzej Duda pardoned all four illegally convicted. In March 2016, the District Court reversed the judgment of the District Court and, in view of the president’s pardon, legally discontinued the case. From this judgment of the Supreme Court, the auxiliary prosecutors filed cassation appeals to the Supreme Court.

Mariusz KaminskiRadek Pietruszka/PAP

The cassation case in the Supreme Court and the motion in the Constitutional Tribunal

However, the cassation proceedings in the Supreme Court in this case were suspended on August 1, 2017. The Supreme Court justified its decision with the initiation by the Constitutional Tribunal of a case of a dispute over powers between the Supreme Court and the president regarding the right of pardon.

Referred to the Constitutional Tribunal in June 2017 by the then Marshal of the Sejm, Marek Kuchciński, the case of the dispute over powers concerns the nature of the power of the president described in the constitution to apply the right of pardon and whether the Supreme Court can make a binding interpretation of it.

The issue of the dispute over powers arose on the basis of the resolution of the Supreme Court of the end of May 2017. At that time, seven judges of the Supreme Court – in response to a question from the Supreme Court judges examining the cassation in the case of the former heads of the CBA – decided that the presidential pardon may only be applied to legally convicted persons. The former heads of the CBA have not been legally convicted.

After the case was referred to the Constitutional Tribunal, the Supreme Court suspended its proceedings. The plenipotentiaries of the auxiliary prosecutors in the Kamiński case – despite the fact that the dispute over powers had not been settled in the Constitutional Tribunal – subsequently applied for the suspended cassation proceedings to be resumed. They referred to the provision of the procedure stating that in criminal proceedings it is, inter alia, about taking into account the legally protected interests of the aggrieved party. However, in July 2018, the Supreme Court did not accept such a request.

However, at the turn of February and March 2023, it was reported that The Supreme Court initiated the cassation proceedings ex officio. “The lack of a ruling by the Constitutional Tribunal blocks the Supreme Court from fulfilling its constitutional duties in the field of administering justice, and blocks the parties from exercising the constitutional right to a court. This applies not only to auxiliary prosecutors who have filed cassation appeals, but also to the defendants whom these cassation appeals concern.” – the justification for this decision was quoted in “GW”.

The suspension of the case paved the way for a hearing date to be set in the Supreme Court. This hearing – as reported in early March – is to take place on Tuesday, June 6.

Dispute in the Constitutional Tribunal

In turn, on 8 March, the President of the Constitutional Tribunal announced that the deadline for examining the dispute over powers had been set. However, on 9 May, when the Constitutional Tribunal was supposed to deal with the case for the first time, 10 of the 15 judges of the Tribunal entered the courtroom and one judge was missing from the full bench.

A dispute has been going on in the Constitutional Tribunal for several months about the term of office of Julia Przyłębska as the President of the Tribunal, which has recently prevented the full assembly of the Constitutional Tribunal. Six judges of the Constitutional Tribunal, including Vice-President Muszyński, in January sent a letter to Przyłębska and President Andrzej Duda, in which they demanded that she convene the General Assembly of Judges of the Constitutional Tribunal and select candidates from among whom the president will nominate a new president. On May 9, among the six judges who sent a letter to Przyłębska in January, Bogdan Święczkowski was in the courtroom.

Once again The Tribunal was to conduct a hearing in this case on Wednesday. Then, however, it was postponed to Friday – as the press office of the Constitutional Tribunal informed – “due to the sudden and justified absence of the judge”.

The excused absence of the judge of the Constitutional Tribunal, again the full bench did not meetTVN24

However, in July 2018, the Constitutional Tribunal issued a judgment regarding the issue of the right of pardon in connection with the application submitted by the Prosecutor General Zbigniew Ziobro. The PG application was submitted to the Constitutional Tribunal just over a month after the resolution of the Supreme Court of May 2017. In that judgment, the Constitutional Tribunal ruled that failure to include an act of clemency in the penal provisions as a reason for the inadmissibility of continuing the criminal case is unconstitutional. At that time, the Tribunal also recognized that the president may exercise the right of clemency before the pardoned person is finally sentenced.

Main photo source: Radek Pietruszka/PAP

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