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The law of clemency, the dispute over powers between the president and the Supreme Court. The Constitutional Court issued a judgment

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The Constitutional Tribunal found that “the right of pardon is the exclusive and uncontrollable competence of the president”, and the Supreme Court “has no competence to exercise control” over this action. This is a verdict in the case of a dispute over powers between the president and the Supreme Court regarding the law of pardon. TK met for this purpose in full composition. The case is related to the non-final judgment against, among others, Mariusz Kamiński and Andrzej Duda’s pardon. The Tribunal was scheduled to hold a hearing in the case on Wednesday. However, it was postponed “due to the judge’s sudden and justified absence”.

The Constitutional Tribunal decided that “the right of pardon is an exclusive and uncontrollable competence of the President of the Republic of Poland, which produces final legal effects” and that “Supreme Court has no competence to exercise control with legal effect of the exercise of the powers of the President of the Republic of Poland.

The decision was made by a majority of votes. Two judges, Piotr Pszczółkowski and Michał Warciński, expressed a dissenting opinion to the decision.

The dispute over powers between the President and the Supreme Court was dealt with by the full panel of the Constitutional Tribunal chaired by President Julia Przyłębska. Two rapporteurs were also appointed: the vice-president of the Constitutional Tribunal, Mariusz Muszyński, and judge Stanisław Piotrowicz. The trial started at 12 noon.

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The case 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.

READ ALSO: “Rzeczpospolita”: The Constitutional Tribunal should have discontinued the application in the case of Mariusz Kamiński four years ago

Rzepliński on the Constitutional Tribunal and the hearing on the dispute over powersTVN24

Justification of the judgment

– There are no obstacles to apply an act of grace in the form of individual abolition to an innocent person against whom specific charges have already been brought, or to a person against whom a sentence has been passed, but not yet final – said Stanisław Piotrowicz, presenting oral justification.

According to the Constitutional Tribunal, in the constitution the legislator used “a very broad concept of the right of pardon, without any criteria regarding its application”. – The lack of these criteria means that there are no restrictions on the application of the law of pardon, and the president can pursue his own policy, including compassion towards the pardoned – said the judge.

Referring to the judgment of the Constitutional Tribunal of July 17, 2018, the Tribunal confirmed that “the President of the Republic of Poland may exercise the right of the cane at any time without having to wait for all the formulas provided for in the criminal procedure to be fulfilled”. – The president has full freedom in the application of this law, he is not obliged to justify the act of pardon, and the issued act is final, permanent and unshakable. For its validity, it does not even require the consent of the pardoned person, said Judge Piotrowicz.

Justification of the judgment of the Constitutional Tribunal.  Judge Piotrowicz on the powers of the President of the Republic of Poland

Justification of the judgment of the Constitutional Tribunal. Judge Piotrowicz on the powers of the President of the Republic of Poland

He added that “in the absence of a provision in the constitution expressly authorizing the organs of the judiciary to control official acts of the president in the form of prerogatives, no court, including the Supreme Court, is a body entitled to derogate from the effectiveness of official acts issued by the president using his constitutional and statutory powers.”

– Implementation of the decision of the Constitutional Tribunal requires the Supreme Court to conclude all proceedings covered by the matter of the decision of the Tribunal, taking into account the method of resolving the dispute over powers between the Supreme Court and the president – said Judge Piotrowicz in the justification. As he added, “in the case of cassation proceedings based on questioning the president’s right to apply individual abolition to a person who has not been validly convicted, the Supreme Court is absolutely obliged to apply” e.g. Friday’s decision of the Constitutional Tribunal.

Dispute in the Constitutional Tribunal

The TK was to hold a hearing in this case on Wednesday, among other things. The press office of the Constitutional Tribunal reported that it had been postponed “due to the judge’s sudden and justified absence”.

For months, a dispute has been going on in the Constitutional Tribunal about the term of office of Julia Przyłębska as the President of the Constitutional Tribunal, which has recently made it impossible for the Tribunal to convene in full. According to some lawyers, including former and current judges of the Constitutional Tribunal, Przyłębska’s term as president of the Constitutional Tribunal expired after 6 years, i.e. on December 20, 2022, and at the same time she cannot apply for this function again. According to Przyłębska herself, as well as the Prime Minister and some experts, her term of office ends in December 2024 – with the end of Przyłębska’s term as a judge of the Constitutional Tribunal.

Constitutional CourtTVN24

Kamiński and Wąsik pardoned before the final verdict

In March 2015, the Warsaw-Śródmieście District Court sentenced in the first instance the former head of the CBA, Mariusz Kamiński, and his deputy, Maciej Wąsik, to 3 years in prison, inter alia, for exceeding their 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 overturned the district court’s judgment 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.

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

The case of the dispute over powers, referred to the Constitutional Tribunal in June 2017 by the then Marshal of the Sejm, Marek Kuchciński, concerns the nature of the power of the president described in the constitution to apply the law 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 Supreme Court judges – in response to a question from Supreme Court judges examining the cassation in the case of former CBA chiefs – decided that the presidential pardon may only be applied to legally convicted persons. The former heads of the CBA have not been legally convicted.

Further hearings in the Constitutional Tribunal postponed. "It's embarrassing what's going on in this yet another PiS annex"

Further hearings in the Constitutional Tribunal postponed. “Embarrassing what is happening in this next PiS annex”Maciej Knapik/Fakty TVN

Cassation case in the Supreme Court

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 procedural provision stating that in criminal proceedings it is, inter alia, to take into account the legally protected interests of the injured 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 had started 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.

In turn, on March 8, the president Julia Przyłębska informed about setting the deadline for hearing the dispute over powers. 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 Constitutional Tribunal entered the courtroom and one judge was missing from the full bench.

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 GUT 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 inadmissibility of further prosecution of a 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: TVN24

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