The pardon law, a relic of monarchical power, should generally have a place in a liberal-democratic system, only as a last-chance measure to restore justice in a situation where all means of its implementation in court have been exhausted.
In the coming weeks, the Executive Division of the Criminal Division of the Warsaw-Śródmieście District Court will consider the application of Mariusz Kaminski and Maciej Vesic, who were sentenced to two years in prison. Absolute imprisonment. The convicts have been demanding the suspension of the final decision of the Warsaw District Court since December last year – according to the politicians' lawyer, this is unfounded, as the case was closed as a result of President Andrzej Duda's pardon.
If the application is denied, the court will have no choice but to order the enforcement of the district court's decision, with the police taking Kaminski and Vesik to the jail closest to their residence. Unless the president pardons them again – but for now he has ruled out that possibility, insisting that the nearly nine-year-old pardon was effective.
Regardless of what the court decides, the dispute over Kaminski and Wasik going to jail and losing their seats may soon be as intensely divisive as the dispute over changes to TVP. How is the ration distributed in it?
Is it possible to pardon someone in advance?
The dispute has two dimensions: legal and political. At this first level, as well as in the entire area of justice, after eight years of PiS rule, we are dealing with great misunderstanding.
On the one hand, we have a presidential pardon since 2015. The right to pardon is a direct, constitutional prerogative of the head of state, the courts cannot limit it – the president and his supporters claim. The problem is that Duda used them when the verdict against Kaminski and Wasik was not yet final, the trial was ongoing, and the defendants had not exhausted their opportunity to prove their innocence before an independent court.
In a 2017 ruling, the Supreme Court opined that the president cannot pardon someone before the decision becomes final, but can only do so after the court case is over. The Yulia Przylbska Tribunal expressed a different opinion. However, the Supreme Court said in June this year that the tribunal's decision “has no legal force.” He annulled the decision of the district court on the presidential pardon and remanded the case for retrial. Its result was the final decision issued at the end of December.
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The Supreme Court's arguments seem more convincing. Presenting the reasons for the June decision, Supreme Court Judge Piotr Mirek said that “using the pardon law in the way the president did, eliminates the possibility of proving the innocence of the accused (…). This is an assumption that is incompatible with the basic constitutional rights of man and citizen: equality before the law, the presumption of innocence and the right to a fair trial. In fact, according to the law, no one is guilty unless he is convicted by a final judgment of the court. By pardoning Kaminski and Vesik before the final verdict, the president pardoned people who were formally innocent – which is patently absurd.
The 2015 decision of the President hindered the functioning of the justice system and violated the fundamental principle of the separation of powers. As Judge Mirek said: “The administration of justice in the Polish legal system is the exclusive property of the common courts and the Supreme Court, and no other body can relieve this obligation.” Even the president.
It can be added that the pardon law, a relic of monarchical power, should have a place in the liberal-democratic system in general, only as a last chance measure that restores justice in a situation where all means of its implementation exist. exhausted in the courts. Using the logic that the president and the Przylbska tribunal, which shared his arguments, moved to pardon Kaminski, it turns into some kind of “get out of jail free” card that the president can hand out to his supporters. And it's not so much “get out of jail” as much as “you don't even have to go to court.”
Services cannot operate above the law
And here we come to the second, political dimension of the question, whether Kaminsky and Vesik should go to prison. Whether they are punished or not, is it possible for Polish democracy to actually force the services that supposedly protect it to act within the law and not abuse their powers and hold accountable even the highest-ranking officials they have. They decided to put themselves above the law.
This is how the courts of both instances assessed the actions of Kaminski, Vesik, and the CBA officers who carried out their orders. According to the court, there was no basis for provocation against Andrzej Leper. The provocation that the CBA tried to organize was not so much aimed at exposing the corruption that the services knew was taking place in the Ministry of Agriculture under the leadership of the Samoborona leader, but at breaking the law of Leper and his people. And the state should prevent crime, not encourage it.
The political context of the whole affair cannot be ignored. In 2007, during a pre-election debate with Donald Tusk, Kaczynski responded to the PO leader's accusation that he had brought Leper into the government, saying “yes, but I immediately sent the services after him”. These services – as can be estimated on the basis of existing knowledge – pursued party goals and not the fight against illegality. At the start of the coalition with Lepper, PiS tried to “refine the appetite”: to break up Lepper's party, to capture its MPs – although perhaps not necessarily by immediately admitting them to PiS and absorbing the electorate. If, as a result of CBA's provocation, Leper found himself in corruption, PiS could succeed. As we know, the provocation was followed by a political scandal, and ultimately the term of office of the Seimas was shortened and early elections were held. PiS lost it, lost power for 8 years, but remained the strongest opposition party. Politically, Samobrona did not survive the 2007 elections and its social electorate was partially joined by PiS.
The party of Kaminski and Vasik tries to present their action as a heroic fight against corruption. And if there is any rational element in the news buzz coming from PiS over the pardon controversy, it is the argument that jailing them would have a paralyzing effect on the fight against corruption in Poland. However, given that the same names appear in the center The Pegasus Scandal – where, as everything says, the state used aggressive spying programs to spy on the chief of staff of the main opposition party with obscene signs – I would say that we are dealing with the opposite problem in Poland today. Personally, as a citizen, I will feel safer if Kaminski and Vesik are punished.
Do not give in to the blackmail of PiS
Should it be mandatory incarceration? There may be some doubts here – at first glance, a more proportionate punishment would seem to be a suspended sentence with a sufficiently long ban on holding public office. However, the court made a different decision based on the existing regulations.
A question can be asked: for political reasons, wouldn't it have been better not to send the two PiS MPs to prison? What if the court found that the presidential pardon closed the case? Because if they succeed, they will become martyrs for half of Poland, PiS will create an even bigger circus than in the case of changes in the public media, and the president – as he said – will talk about “political prisoners” all over the world. Tusk's government”.
However, a serious, fairly large European state cannot rely on the fear of how Kaczynski and the PiS people will react to the final decision of the court.
He is afraid of something, that is, Pegasus is in the hands of Polish services
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At least we cannot avoid the argument: if not in prison of Kaminsky and Vesik, then about their fines. The gentlemen claim that because the 2015 presidential pardon was effective, the 2023 verdict could not wipe out their parliamentary mandates. MPs appealed Marshall's decision to the Extraordinary Chamber of Control and Public Affairs – staffed entirely by neo-judges and, many lawyers say, not a court. Therefore, his judgment will cause doubt.
How will it all end? I suspect that Kaminski and Vesik may end up in jail for a short time. If that happens, PiS will unleash hell and try to make the most of it politically. As soon as public interest in the topic subsides, the president will quietly pardon both convicts. This should end the dispute over the expiration of their terms – because if the president pardons them again, it means that he himself admits that the first pardon was not effective, and therefore the sentence of 2023 was correctly delivered and the terms expired. Both politicians act by law.
PiS may think differently and fight against Kaminski and Vesik in the parliamentary seats. Holounia may face a much more serious test than Marek Suski's joke – because if he fails to enforce the decision regarding the two convicted MPs, PiS will remain on his radar for the rest of his term.
(translate tags) Andrzej Duda