Experts: The parliamentary mandate expires when the final judgment is announced

The parliamentary mandate expires when the final judgment is announced, by virtue of the provisions of the constitution itself. There is no such thing as restoring a mandate in Polish law – said constitutionalists Prof. in an interview with PAP. Kazimierz Zgrzeek and Dr. Paweł Sadowski.

President Andrzej Duda announced on Thursday that he had initiated pardon proceedings against Mariusz Kamiński and Maciej Wąsik at the request of their wives. Duda emphasized that the proceedings would be conducted in “presidential mode”. He also requested the Prosecutor General to suspend the execution of the sentence and release the prisoners for the duration of the pardon proceedings.

Both PiS politicians were sentenced on December 20 last year. to 2 years in prison and a 5-year ban on holding public functions by a final judgment of the District Court in Warsaw for activities related to the so-called land scandal when they were the heads of the CBA. Due to the final court ruling, the Marshal of the Sejm Hołownia issued a decision stating that the mandates of both deputies had expired. Constitution in art. 99 section 3 indicates that “a person who has been sentenced by a final judgment to imprisonment for an intentional crime prosecuted by public prosecution cannot be elected to the Sejm or the Senate.”

In an interview with PAP, experts in constitutional and criminal law – prof. Kazimierz Zgrzeek from the University of Silesia and Dr. Paweł Sadowski from UMCS in Lublin – were asked whether the announcement of the presidential pardon of convicts could change anything regarding the expired mandates. On Thursday, the Speaker of the Sejm in a conversation with journalists said that the president’s decision does not change anything regarding the mandates of Kamiński and Wąsik.

“The gentlemen lost their parliamentary seats irrevocably due to the judgment of the District Court. This initiative, the presidential pardon, concerns the prison sentence that they started serving yesterday,” Hołownia said on Thursday.

Both lawyers said in an interview with PAP that the expiration of parliamentary mandates took place automatically, under the provisions of the constitution. “An act of clemency does not create a situation in which a person is not convicted; creates a situation in which a given person, using clemency, is not punished – but the conviction has occurred and is still final,” the prog. emphasized. Bite.

Therefore, as he noted, “they cannot be MPs until the end of the term.” Dr. Sadowski agreed with him and said, “if the verdict has been passed, the result has occurred.” “There is no such thing as restoring a mandate in Polish law; such an institution is unknown to Polish law. Therefore, the president’s decision to grant a pardon does not change anything in this matter, because the mandate has expired,” he said, adding that the mandates expired “by operation of law itself” when the final judgment was issued on December 20 last year.

The lawyer said that in Polish law there is no such thing as “suspension” of a mandate. “We have to look at it from zero to zero, it’s like declaring death (…) You can’t revive a corpse, to put it colloquially,” he said, referring to the decision to extinguish mandates issued by the Speaker of the Sejm. As Sadowski emphasized, his “declarative resolution” is not a decision, but only a statement of a fact that has already occurred.

Sadowski pointed out that the expiry of the mandate must be final, among others. due to the possibility of other people taking up vacant seats. As he said, if the expired mandates were taken over by subsequent people from the electoral lists, and then the decision to expire the mandates of previous MPs was withdrawn, this would lead to a situation in which there would be more than 460 MPs in the Sejm, which the Polish system does not provide for.

Prof. Zkrzek noted that in an act of pardon, the president may specify the extent to which he wants to pardon those named. “The president has full discretion when it comes to clemency. This grace may include only a penalty, e.g. imprisonment, or this penalty and a ban on holding public functions, or only a ban on holding public functions,” he explained.

Dr. Sadowski assessed that a pardon in the broadest possible form would provide – in addition to remission of the prison sentence and the ban on holding public offices – the expungement of the conviction, thanks to which the pardoned politicians could, for example, run in the elections to the Sejm of the next term. As he noted, under no circumstances would a presidential pardon make the final court judgment disappear from legal circulation. “The president cannot nullify a legal judgment; it can only cancel the effects, but not the effect that results directly from the constitution,” he said.

The expert also emphasized that a presidential pardon providing for the expungement of a conviction would have “future” effects. “The expungement of the conviction means that if, for example, there were next elections, the gentlemen could run in the elections,” he said. He noted that until the pardon procedures are completed, it is not known what exactly will be included in the presidential act of pardon.

In March 2015, Mariusz Kamiński and Maciej Wąsik – former head of the CBA and his deputy – were illegally sentenced to 3 years in prison and a 10-year ban on holding public positions for exceeding their powers in connection with the CBA’s action regarding the so-called land scandal. In the trial of the former heads of the CBA, the court found that Kamiński planned and organized the CBA provocation, although there were no legal and factual grounds for initiating the CBA action in the Ministry of Agriculture, headed by Deputy Prime Minister Andrzej Lepper. The illegally convicted former heads of the CBA were pardoned in 2015 by President Duda.

The case returned to the docket in connection with the judgment of the Supreme Court of June 2023. The Supreme Court in the Criminal Chamber, after cassation appeals filed by subsidiary prosecutors, overturned the discontinuance of the case of the former heads of the CBA made in March 2016 by the District Court in Warsaw in connection with the applied by the president by a right of pardon and referred the case to the Supreme Court for reconsideration.

On December 20, 2023, the District Court in Warsaw sentenced Kamiński and Wąsik to two years of imprisonment. Therefore, the Marshal of the Sejm, Szymon Hołownia, issued decisions to declare the expiry of their parliamentary mandates. Kamiński and Wąsik appealed against these decisions, which the Speaker of the Sejm referred to the Labor Chamber of the Supreme Court.

On Wednesday, the Chamber of Labor and Social Insurance of the Supreme Court did not accept Mariusz Kamiński’s appeal. On the same day, Marshal Hołownia’s decision to expire Kamiński’s mandate was announced in Monitor Polski. (PAP)

Author: Mikołaj Małecki

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