Polish Supreme Court rejects president’s pardon of minister accused of abusing powers

Poland’s Supreme Court has issued a ruling rejecting President Andrzej Duda’s decision to pardon a government minister who had been found guilty of exceeding his powers and banned from office but was still in the process of appealing that conviction.

By ordering the case to be reopened, the Supreme Court also defied a ruling last week by the Constitutional Tribunal (TK), which found that the Supreme Court has no right to question the president’s power of pardon.

The issue in question dates back to the period when the current ruling Law and Justice (PiS) party was previously in power from 2005 to 2007. At that time, it appointed one of its politicians, Mariusz Kamiński, as head of the Central Anticorruption Bureau (CBA).

In 2009, after PiS had lost power but when Kamiński was still head of the CBA, he and three of his subordinates were charged with exceeding their powers in an investigation into a corruption scandal that had helped bring down the PiS-led coalition government two years earlier.

In 2015, the quartet were found guilty by a court in Warsaw, with Kamiński sentenced to three years in prison and given a ten-year ban from holding public office. However, he and the others maintained their innocence and appealed against the convictions.

Before those appeals could be heard, Duda, a PiS ally, decided to issue presidential pardons to all four of the accused in November 2015. He did so one day after Kamiński had been appointed minister in charge of the security services in a new PiS-led government.

Kamiński remains in that position, and in 2019 additionally become interior minister. His deputy during that period has been Maciej Wąsik, one of the other former CBA officials found guilty in 2015 and then pardoned by Duda before his appeal was heard.

While no one questions the president’s right to issue pardons, many experts have argued that it can only be used once someone has received a final, binding ruling – not while their case is still being considered, as happened with Kamiński and Wąsik.

“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.

In 2017, the Supreme Court agreed with that position, adopting a resolution declaring Duda’s pardons in this case to be ineffective because they were issued before final convictions had been made.

However, before the Supreme Court could issue a final ruling, the then speaker of parliament, Marek Kuchciński of PiS, referred the case to TK. 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.

Last week, the TK – a body widely seen as being under the influence of PiS – issued a ruling finding that the Supreme Court has no right to question pardons, which are “the exclusive competence of the president and not subject to review”.

However, in a ruling today the Supreme Court declared that it believes “the Constitutional Tribunal ruling of 2 June did not have any legal effects” because the issue in question is “not subject to review by the Constitutional Tribunal”, reports broadcaster TVN24.

“The administration of justice in the Polish legal system is the exclusive domain of the common courts and the Supreme Court,” said Supreme Court justice Piotr Mirek in an oral justification quoted by the Polish Press Agency (PAP). “The Constitutional Tribunal cannot force courts to interpret provisions in one way or another.”

He and the other two judges assessing the case issued a ruling overturning the decision of a lower court to end proceedings in Kamiński and Wąsik’s appeal against their conviction. That means the lower court will have to take up the case again.

“The right of pardon may only be exercised for persons whose guilt has been established by a final court ruling,” said Mirek, quoted by Gazeta Wyborcza. “The application of the right of pardon before a conviction becomes final does not have legal effect.”

Today’s ruling was welcomed by Borys Budka, the head of the parliamentary caucus of Poland’s largest opposition group, Civic Coalition (KO).

“When in Poland we have a dummy constitutional court, the Supreme Court upholds elementary principles,” tweeted Budka. “It has confirmed that Andrzej Duda broke the law by ‘pardoning’ his party colleagues Kamiński and Wąsik. There could be no other verdict.”

However, the Supreme Court’s judgement was condemned by Sebastian Kaleta, a deputy justice minister, who accused the court of “ignoring the division of powers, competences and prerogatives indicated in the constitution”.

“Supreme Court judges are participating in a rebellion against their own state…passing judgements based on their political views and not the law,” Kaleta added.

Main image credit: MSWiA (under CC BY-NC-ND 3.0 PL)

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.