Polish constitutional court confirms president’s pardon of government minister

Poland’s Constitutional Tribunal (TK) has issued a ruling effectively upholding President Andrzej Duda’s decision to pardon the government’s security services minister, who had been found guilty of exceeding his powers and banned from holding public office but was in the process of appealing that conviction.

The ruling by the TK, a body widely seen as being under the influence of the ruling party, is the latest twist in a long-running legal dispute that has involved two of Poland’s highest courts as well as the president, government and parliament. A separate ruling relating to the case by the Supreme Court is scheduled for next week.

The roots of the issue lie in the time when the current ruling party, Law and Justice (PiS), was previously in power from 2005 to 2007. During that period, a PiS politician, Mariusz Kamiński, was appointed as head of the Central Anticorruption Bureau (CBA).

In 2009, when PiS were no longer in power but Kamiński was still head of the CBA, he was charged by prosecutors with exceeding his powers during an investigation into a corruption scandal involving one of PiS’s junior coalition partners. The scandal helped lead to the collapse of the PiS-led government in 2007.

In March 2015, Kamiński and his deputy Maciej Wąsik were found guilty by a Warsaw court, which gave them jail sentences of three years. Kamiński was additionally banned from holding public office for ten years. However, they both maintained their innocence and filed appeals against the ruling.

However, in November 2015, before those appeals had been heard, President Andrzej Duda – a PiS ally – issued a pardon to Kamiński, Wąsik and two other former CBA officials convicted over the same case.

Duda made that decision one day after Kamiński had been named as the minister responsible for the security services in a new government formed by PiS after it was returned to power at the previous month’s elections. In 2019, Kamiński was additionally made interior minister. Wąsik has again served as his deputy since 2015.

While under Poland’s constitution the president has the right to issue a pardon, many legal experts argued that this prerogative can only be exercised once someone has received a final, legally binding conviction – not while their case is still being considered, as happened with Kamiński.

“Pardoning an innocent person – that is, someone who has not been convicted in a final ruling – is like granting a divorce to a person who is engaged to be married,” Marcin Matczak, a professor of constitutional law at the University of Warsaw, told broadcaster TVN24.

Duda’s pardons were referred to the Supreme Court, which in 2017 adopted a resolution declaring them to be ineffective because they were issued before final convictions had been made.

However, before the Supreme Court could issue a final ruling on the case, the then speaker of parliament, Marek Kuchciński of PiS, referred the case to the Constitutional Tribunal. He argued that the Supreme Court was exceeding its powers by ruling on the president’s constitutional right of pardon.

The Supreme Court suspended its final ruling on the case until the TK had resolved that question. However, six years later, the TK – headed by Julia Przyłębska, a close associate of PiS chairman Jarosław Kaczyński – had still not made a decision.

The Supreme Court eventually lost patience and decided, in March this year, that it would resume its case on 6 June. That pushed the TK to take action, with Przyłębska quickly announcing that the tribunal would hold a hearing on 31 May regarding the Supreme Court’s right to rule on a presidential pardon.

However, the TK is currently locked in an internal dispute, with six rebel judges – 40% of its bench – refusing to recognise Przyłębska’s authority as they claim her term as chief justice expired in December. That led to concerns that the necessary quorum of judges to rule on the pardon case would not be reached.

And indeed, on 31 May, Przyłębska was forced to postpone the planned hearing after the TK fell one judge short of a quorum. However, on Friday two of the rebels relented and, while insisting they continued not to recognise Przyłębska as chief justice, agreed to participate in hearing the pardon case.

The ruling the TK issued was, as most analysts had expected, effectively in favour of Duda and Kamiński. “The law of pardon is the exclusive competence of the president and not subject to review,” found the TK.

“There are no restrictions on the application of the law of pardon,” added the rapporteur on the case, judge Stanisław Piotrowicz, a former PiS colleague of Kamiński. “The president may exercise the right of pardon at any time. There are no obstacles to applying an act of pardon to a person who has not yet received a final sentence.”

Matczak was among those to criticise the TK’s decision, telling Gazeta Wyborcza that, by establishing an unlimited power of pardon, it would allow Duda, “for example, to pardon all members of PiS in advance for past and future crimes” they have not yet been charged with.

It remains unclear for now how the Supreme Court – which is due to have its own hearing relating to Duda’s pardon on Tuesday next week – will react. It has two options, according to Stanisław Biernat, a former deputy head of the Constitutional Tribunal.

The first is to simply accept the TK ruling that the Supreme Court does not have the right to review the president’s power of pardon, Biernat told news website Wirtualna Polska.

But the second option is for it to argue that the TK is not a lawful entity and refuse to recognise its ruling. In doing so, it could point to both European and Polish court rulings that have found the TK to be unlawfully constituted because it contains judges who were improperly appointed by President Duda.

A number of legal experts have – like the rebel TK judges – also argued that Przyłębska is no longer the chief justice of the tribunal. That could also undermine the validity of yesterday’s ruling.

Main image credit: Igor Smirnow/KPRP

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.