Information that Przyłębska’s Tribunal had suddenly woken up in the case of Mariusz Kamiński – who was convicted in a non-final verdict for the Central Anti-Corruption Bureau’s illegal operation against Andrzej Lepper – started to circulate among lawyers on Wednesday, 8 March 2023, after 9 pm. Information appeared on the Tribunal’s website stating that the full membership of the Constitutional Tribunal is to meet on the case on 26 April at 11 am.

President Julia Przyłębska is to be the presiding judge, while Vice President of the Constitutional Tribunal, Mariusz Muszyński, who is a so-called stand-in judge, and Stanisław Piotrowicz, a former prosecutor and PiS MP, have been nominated as rapporteurs.

The Constitutional Tribunal is to examine an alleged competence dispute raised back in 2017 by the then Marshal of the Sejm, Marek Kuchciński. The dispute is supposed to be between President Andrzej Duda and the Supreme Court. And it should be about whether the President has the absolute right of clemency, with which no one can interfere. And whether he can exercise this right with other entities and whether the Supreme Court can assess the scope of the President’s right of clemency.

The sudden acceleration of this case in the Constitutional Tribunal arises from the fact that, last week, the Supreme Court removed the suspension in the case of Kamiński, who is now the head of the Ministry of the Interior and Administration, coordinator of the special services and deputy head of the PiS party. This case was suspended six years ago precisely because of an alleged competence dispute before the Constitutional Tribunal.

And it appears that this was deliberate in order to block the Kamiński case, because the Constitutional Tribunal had not examined this case for six years.

That is why the Supreme Court has now lifted the suspension and wants to examine the cassation of the former Samoobrona [Self-Defence Party] activists who challenged the discontinuation of Kamiński’s trial, because he was pardoned by the President in 2015.  A three-person bench from the legal Criminal Chamber – Andrzej Stępka, Małgorzata Gierszon and Piotr Mirek – are to examine the case on 6 June 2023.

In other words, by setting its hearing for the end of April, the Constitutional Tribunal wants to pre-empt the Supreme Court’s ruling and could block it. Because if Przyłębska’s Constitutional Tribunal decides that no one has the right to interfere with presidential pardons, there will be strong pressure – perhaps even political pressure – for the Supreme Court to drop the case.

Will the Supreme Court be able to examine Kaminski’s case

If the Supreme Court’s bench accepts a possible ruling of the Constitutional Tribunal that the Supreme Court cannot assess the President’s competence regarding the right of clemency, it will discontinue Mariusz Kaminski’s case. And he will receive absolution from the Central Anti-Corruption Bureau’s operation targeted at Andrzej Lepper. But the Supreme Court does not need to take the ruling of the Constitutional Tribunal into account. And then several options are possible:

1. The Supreme Court can disregard the judgment passed by Przyłębska’s Tribunal, because it will be issued with the involvement of so-called ‘stand-in judges’, whose legality has been undermined in judgments of the ECtHR. Such a bench of the Constitutional Tribunal is defective and its rulings are not binding. The Supreme Court can also assess that there is no competence dispute between the President and the Supreme Court and may then examine the case.

2. There may be other attempts to block the Supreme Court in making a ruling. An attempt to ‘arrest’ the case files, for example, by Małgorzata Manowska, a neo-judge in the position of First President of the Supreme Court, cannot be ruled out. Because she has already done this in three cases regarding neo-judges of the Supreme Court.

In doing so, she prevented three rulings of the CJEU from being implemented. An attempt to change the membership of the bench can also not be ruled out, because this has already been done in the case regarding the status of neo-judges in the Civil Chamber. And now, neo-judges of the Supreme Court, led by Manowska, have a majority in the bench.

An attempt has also been made to change the membership of the bench in the Labour and Social Insurance Chamber in cases of precedent-setting actions to declare neo-judges of the Supreme Court illegal. Even the President’s special disciplinary commissioner, namely Piotr Schab, stepped in and may press disciplinary charges against the legal Supreme Court judges.

3. The term of office of the current president of the Criminal Chamber, Michał Laskowski, will come to an end in May 2023. The Chamber will be headed by a new president appointed by the President in June, when the Kamiński case is to be examined. This may be a neo-judge of the Supreme Court. The President could also temporarily appoint his so-called commissioner. This will change the balance of power in the Chamber.

4. But the Constitutional Tribunal may also not manage to deal with Mariusz Kamiński’s case by 6 June. Because there is a major dispute in the Tribunal over the position of president. Six judges believe that Julia Przyłębska’s term of office has expired because of changes in the law. They want her to vacate the post and the Assembly of Judges of the Constitutional Tribunal to elect a new president. This is the opinion of: Wojciech Sych, Jakub Stelina, vice-president of the Constitutional Tribunal Mariusz Muszyński (a so-called stand-in judge), Andrzej Zielonacki, Zbigniew Jędrzejewski and former National Prosecutor Bogdan Święczkowski.

But Julia Przyłębska believes she is still the legal president and does not intend to step down. This dispute is stopping the examination of the case filed by President Andrzej Duda to assess the constitutionality of the last amendment to the Act on the Supreme Court, which is supposed to unblock billions of euros for Poland’s NRRP. The PiS government is very much counting on these funds, as they are supposed to help Kaczyński’s party win the elections.

However, the case has to be examined by the full membership of the Constitutional Tribunal. As ‘Rzeczpospolita’ reported, six judges did not come to deliberate on the matter on Wednesday 8 March. Will they also boycott the deliberation and the session of the Constitutional Tribunal regarding the pardoning of the deputy head of PiS, Mariusz Kamiński? Because this case is also to be examined by the full membership of the Tribunal.

How Mariusz Kaminski was convicted in a non-final judgment

Just to reiterate. The District Court for Warszawa-Środmieście convicted the former head of the Central Anti-Corruption Bureau, Mariusz Kamiński, and three other defendants in March 2015 for an operation conducted by the Central Anti-Corruption Bureau in 2007. The Bureau’s agents wanted to prove that it was possible to arrange for the reclassification of land from farmland to development land at the Ministry of Agriculture for a bribe.

An undercover officer allegedly handed over a bribe to a man who claimed to have influence in the ministry and, in this way, to reach the then Deputy Prime Minister and head of Samoobrona, Andrzej Lepper.

The district court held that the Central Anti-Corruption Bureau’s operation was illegal. The bureau instigated corruption and illegally falsified documents. It listened in on telephone calls of not only Samoobrona politicians, but also PiS politicians. That is why the sentence was harsh. For Kamiński – 3 years’ imprisonment and a 10-year ban on holding public office.

The former deputy head of the Central Anti-Corruption Bureau, Maciej Wąsik, currently one of the deputy ministers of internal affairs and administration, was also sentenced to 3 years’ imprisonment. Meanwhile, the court sentenced Grzegorz Postek, former director of the Central Anti-Corruption Bureau’s Operational and Investigative Management Board, and his deputy, Krzysztof Brendel.to two and a half years’ imprisonment.

The sentence was passed by a panel of three professional judges: Wojciech Łączewski (presiding judge in the bench and case rapporteur), Łukasz Mrozek and Małgorzata Drewin. The verdict was unanimous.

The defendants appealed against the conviction, and PiS won the parliamentary elections and took over the government in the autumn of 2015. However, no verdict was issued in the appeal. Because President Andrzej Duda pardoned Kamiński and his former colleagues before the court heard the appeals in November – after the elections had already been won. Shortly afterwards, Kamiński was appointed minister – coordinator of the special services.

In this situation, the Regional Court in Warsaw decided in March 2016 that it could not hear the appeal of the convicted defendants and discontinued the case. The three-judge bench was headed by Piotr Schab, who was little known at that time and no one suspected that he would become one of the faces of the ‘good change’ in the courts. Judge Grażyna Puchalska then justified the ruling.

How Kamiński’s case was suspended in the Supreme Court

However, cassation appeals were filed against the discontinuation of the case by the aggrieved politicians, once activists of Samoobrona. The Supreme Court accepted them for consideration. And a Supreme Court bench of three judges posed a legal question: can the president apply an act of clemency before the court issues a final verdict?

In May 2017, seven judges of the Supreme Court ruled that the president cannot pardon anyone before a final verdict and cannot discontinue a trial. After that ruling, the case returned to a Supreme Court bench of three judges, which scheduled the examination of the cassation of the former Samoobrona activists to be heard on 9 August 2018.

It was highly likely that, following the resolution of the seven judges of the Supreme Court, it would revoke the ruling approving the pardoning of Kamiński and the three others.

But three weeks before the case was to be heard, the president of the Constitutional Tribunal, Julia Przyłębska, suddenly sprang into action. She presented two letters to the then president of the Supreme Court, Małgorzata Gersdorf, demanding that the case be suspended. She stated that, at the request of the Marshal of the Sejm, the Tribunal had initiated proceedings regarding a competence dispute between the President and the Supreme Court.

Marshal Kuchciński had requested the Constitutional Tribunal to rule on whether the Supreme Court could interpret the Constitution on the President’s clemency decision. Przyłębska emphasized in her letter to Gersdorf that proceedings in the Constitutional Tribunal regarding the competence dispute will result in the suspension of proceedings before the bodies in dispute. And therefore also before the Supreme Court. As a result, she asked for an order to be issued to the Supreme Court to suspend Kamiński’s case.

In the second letter, the National Prosecutor’s Office was demanding that the Supreme Court suspends the case, as it wanted to join the alleged competence dispute on the side of the Marshal of the Sejm.

The Supreme Court accepted the requests and suspended the cassation hearing in Kamiński’s case. Meanwhile, Przyłębska’s Constitutional Tribunal has still not examined the case of the alleged competence dispute. The Constitutional Tribunal only acknowledged in 2018 at the Prosecutor General Zbigniew Ziobro’s request that the President can pardon people convicted in non-final verdicts.

The PiS authorities wanted to take advantage of the move of suspending the case because of the alleged competence dispute once again in January 2020. At that time, the Supreme Court was preparing to issue a historic resolution of the full membership, in which the legality of the neo-NCJ and the Disciplinary Chamber was challenged. However, the Marshal of the Sejm, Elżbieta Witek, filed a motion with Przyłębska’s Constitutional Tribunal to resolve an alleged competence dispute between the Supreme Court and the President and the Sejm.

And President Julia Przyłębska requested the Supreme Court to suspend the case. But the Supreme Court then decided that there was no dispute and issued the resolution that is still in force today.

How the Supreme Court removed the suspension of the Kamiński case

In the case of the deputy head of PiS, Mariusz Kamiński, the Supreme Court bench of three judges which is to hear the case decided after six years that there is no point waiting any longer. Because the Constitutional Tribunal is doing nothing in this matter and is only pretending to operate so that the case remains suspended. Therefore, the Supreme Court removed the suspension of the case on 28 February 2023 and then set a date of 6 June for the examination of the cassation.

A Supreme Court’s bench from the Criminal Chamber invoked the right of the parties to quickly examine the case. The Supreme Court justified its decision regarding the suspension as follows: ‘The lack of decision of the Constitutional Tribunal is blocking the Supreme Court from fulfilling its constitutional duties of administering justice and is blocking the parties from exercising their constitutional right to a trial in court. This applies not only to the subsidiary prosecutors who have filed cassation appeals, but also to the defendants to whom these appeals apply.’

And continued: ‘The fact that the parties, who do not have any available means to contest the length of time in which the case is being examined by the Constitutional Tribunal, need to exercise their rights means that cassation proceedings must be taken up without waiting any longer for the outcome of the proceedings before the Constitutional Tribunal.’

What happened with the land scandal

There were two trials after the land scandal. The first applied to Kamiński and others for illegal provocation by the Central Anti-Corruption Bureau. The second trial applied to two defendants based on Central Anti-Corruption Bureau materials from the illegal provocation. It applied to two people who, according to the prosecutor’s office, were fixers with access to the management of the Ministry of Agriculture, headed by Andrzej Lepper.

Piotr Ryba and the lawyer Andrzej K., formerly associated with PiS, were charged. The lawyer was being tempted by the Central Anti-Corruption Bureau agent with a bribe, because K. was boasting that he had access to the agriculture ministry and could fix the reclassification of the land from farmland to development land. Meanwhile, Andrzej K. was in touch with Piotr Ryba, who was close to Andrzej Lepper. He was advising him on media matters.

Andrzej K. and Piotr Ryba were convicted by the capital’s district court in the first trial in 2009. But the verdict was overturned by the court of appeal, ordering, among other things, an investigation into the legality of the Central Anti-Corruption Bureau operation.

The second trial again resulted in a conviction. In 2014, the district court held that Ryba was guilty of claiming that he can bear an influence on the Ministry of Agriculture. It held that he and K. wanted almost PLN 3 million for help with the reclassification of land from farmland to development land, but accepted just PLN 10,000 from the agent to cover ‘costs’. And it sentenced him to two and a half years’ unconditional imprisonment for that, because it considered the act to be socially harmful. The court also found Andrzej K. guilty, as he additionally accepted a mobile phone worth approx. PLN 3,000. But it only sentenced him to a fine of PLN 54,000.

The lenient sentence is a reward for confessing and giving explanations. K. will not pay the fine because it is equal to the number of days he spent in pre-trial custody.

The district court sentenced them because it held that the Central Anti-Corruption Bureau operation was legal, even though it saw ‘shortcomings’ in it, e.g. the falsified documents on the land for reclassification.

However, the court of appeal again overturned this verdict in 2016. It held that the district court had not followed the earlier recommendations and had not assessed the legality of the Central Anti-Corruption Bureau’s operation. And this matters, because if the operation itself was illegal, then Piotr Ryba and Andrzej K. cannot be charged with running a protection racket.

Their status would have changed from being the accused to being victims of the Central Anti-Corruption Bureau. The verdict was issued just before PiS came to power in 2015. The overturning of Piotr Ryba’s conviction for the second time meant that the trial would have to start all over again for the third time. But as we revealed in OKO.press, the trial has not started to this day. Because Ryba is not appearing on court summonses, while the police have issued an APB after him. 

Translated by Roman Wojtasz

The article was published in OKO.press on March, 9 2023.