On June 6, the Supreme Court set the date of the cassation hearing in the case of Mariusz Kamiński and other persons from the former management of the CBA, the Supreme Court’s press team informed PAP on Tuesday. A few days ago, the Supreme Court began this procedure – suspended since the summer of 2017.
This case has a history of almost ten years. In March 2015, Warszawa-Śródmieście District Court sentenced in first instance the former head of the CBA, Kamiński (today the head of the Ministry of Interior and Administration) and Maciej Wąsik (Kamiński’s deputy in the CBA at that time; currently Deputy Minister of Home Affairs and Administration) to 3 years imprisonment, among other things for exceeding competence and unlawful management of the CBA during the “country scandal” in 2007. Two other former members of the CBA management were sentenced to prison terms after 2.5 years.
An act of grace
In November 2015, before the District Court in Warsaw examined their appeals, President Andrzej Duda pardoned all four unlawfully convicted persons. In March 2016, the SO overturned the SR’s verdict and, given the President’s clemency, legally discontinued the case. The assistant public prosecutors have lodged an appeal in cassation with the Supreme Court against this judgment of the Supreme Court.
However, the cassation procedure at the Supreme Court in this case was suspended on 1 August 2017. The Supreme Court then motivated its decision by filing a case with the Constitutional Court concerning a jurisdictional dispute between the Supreme Court and the president about the right to a pardon.
The dispute over powers, which was referred to the Constitutional Court by the then Marshal of the Sejm, Marek Kuchciński, in June 2017, concerns the nature of the President’s constitutional power to apply the power of clemency and whether the Supreme Court a binding interpretation thereof.
Competency Disputes
The issue of the power dispute arose following the ruling of the Supreme Court at the end of May 2017. At that time, seven judges of the Supreme Court – in response to a question from the Supreme Court that the former heads of cassation of the CBA – decided that the presidential pardon should only be applied to legally convicted persons. The former heads of the CBA have not been legally convicted.
After Marshal Kuchciński referred the case to the Constitutional Tribunal, the Supreme Court suspended the proceedings. The plenipotentiaries of the assistant prosecutors in the Kamiński case – despite the fact that the power dispute had not been settled in the Constitutional Court – subsequently requested that the suspended cassation proceedings be resumed. They referred to the procedural provision, which states that in criminal proceedings, among other things, to take into account the legally protected interests of the injured party. However, in July 2018, the Supreme Court did not accede to such a request.
Last week, Gazeta Wyborcza reported that the Supreme Court had officially started this cassation procedure.
The absence of a ruling from the Constitutional Court prevents the Supreme Court from fulfilling its constitutional adjudicative duties and prevents the parties from exercising the constitutional right to a fair trial. This applies not only to assistant public prosecutors who have lodged a cassation appeal, but also to the suspects to whom this cassation appeal relates.
— the justification for this decision was quoted in “GW”.
The adjournment of the case opened the way for a date to be set and such a hearing date – as communicated by the Supreme Court – was set for June 6 this year.
Interpretation of the Constitutional Court
However, in July 2018, the Constitutional Court ruled on the request of the Attorney General Zbigniew Ziobro. The GUT application was submitted to the Constitutional Tribunal just over a month after the May 2017 Supreme Court resolution, which recognized that the presidential pardon should only be applied to persons who have been validly convicted. In that judgment, the Constitutional Tribunal ruled that not including an act of pardon 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 final conviction of the pardoned person.
The Supreme Court should resume and stop the suspended proceedings against the former head of the CBA Mariusz Kamiński, because the Constitutional Tribunal has clearly told the Supreme Court how the right to pardon is understood
– then said the President of the Constitutional Court, Julia Przyłębska.
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Source: wPolityce