Mikosh: PiS politicians fight for their impunity

There is no silence in the case of the arrest of Mariusz Kamiński and Maciej Wąsik. In a broad discussion 1 of the most crucial themes is the scope of the law of grace, and the effectiveness of its application by Andrzej Duda. Andrzej Mikosz, a lawyer and erstwhile PiS politician, from 2005 to 2006 Minister of State Treasury in the cabinet of Kazimierz Marcinkiewicz, spoke recently.

Mikosz wrote on social media: “It is not about Wąsik and Kamiński. It's about the impunity of the full formation. Until Andrzej Duda is in office at the Presidential Palace.

1) the anticipation of applying the law of grace.

Article 139 of the Constitution of the Republic of Poland reads as follows: “The president of the Republic shall apply the law of grace. The right of grace shall not apply to persons convicted by the Court of State.” 1 cannot read the first conviction without context, resulting from the second conviction and the full Constitution. The provision contains (codes) a competence standard which orders all authorities of the state, if the president exercises the right of grace, to waive punishment in the manner indicated in the act of grace. The circumstances in which the president may apply the law of grace are clear from the wording of the second conviction of this provision and the application of the principles of explanation of the law mostly (since Roman times).

These rules are:
1) exceptions non sunt extendendae (exceptions cannot be extended) and
2) Conclusion a minori ad maius (if individual is prohibited less, it is besides prohibited more).

In addition, the explanation of the provisions of the law takes as a basic rule the rule of axiological rationality and systemic legislature. An unacceptable consequence of the explanation of the provisions of the law should be considered to be the consequence which leads to the explanation of standards which have contradictory effects, including axiological effects.

The second conviction restricts the President's right to apply the law of grace to a individual convicted by the Court of State. The way this provision is formulated shows that it is an exception to the general rule of the anticipation for the president of Poland to apply the law of grace. The rule of strict explanation of exceptions means that this exception cannot be extended. If the president of the Republic of Poland could apply the law of grace to those not convicted (such as Mr Kamiński and Wąsik), this would mean that the president could apply the law of grace besides to those accused but not yet convicted by the Court of State.
This would lead to a clear contradiction with the intent and axiology for which the exception was introduced – a prohibition on the application of the law of grace to a individual convicted by the Court of State. If the president could apply the law of grace not only to those convicted (of course, the conviction is always understood as a final conviction), this would mean that the constitutional legislature allowed the president not to be convicted by the Court of State and prevented the individual convicted by that Court of State from being pardoned.
This means that the set of situations, the facts in which the president may apply the law of grace must not include situations that concern innocent persons who are subject to the presumption of innocence, persons who have not been convicted.

The explanation of Article 139 of the Constitution in specified a way that the right of grace may be applied to innocent persons, whose responsibility has not been definitively established by the Court of First Instance, would lead to an interior contradiction of the system. In accordance with the rule of "exceptiones non sunt extendendae", the president could apply the law of grace in any case, including those who have not been convicted unless convicted by the Court of State. specified an explanation consequence is unacceptable. It contradicts the rule of the incompatibility of the strategy and its axiological consistency. It besides contradicts the "a minori ad maius" principle.

Therefore, the ultimate Court in judgement II of KK 96/23 correctly stated that the application of the law of grace to 4 defendants (including Mariusz Kamiński and Maciej Wąsik) by president Andrzej Duda in 2015 could not have had the effect of ending the criminal trial concerning the accused without giving a judgement on the guilt. The ultimate Court drew attention to the issue of the unity of the Constitution and the exclusivity of courts and tribunals to execute justice. Grace (mercy) can be shown erstwhile justice has been given. Similarly, an argument concerning the right to court (a conviction, a message of responsibility is simply a essential condition for the creation of civilian claims, and in these presidents – as executive authority – cannot, has no right to interfere).

The territory Court so had no choice but to conclude the case of the 4 defendants in Marius Kamiński and Maciej Wąsik by issuing a judgement concerning their guilt; in this case, within the scope of the judgement of the territory Court. As a result, there has been a final conviction and the expiry of parliamentary mandates by law. This, however, opens the way for president Andrzej Duda to apply the law of grace. Why won't he? The bottom one.

2) The law of the Constitution and the judgement of SN II KK 96/23 of the application of the law of grace, including the law of abolition, and so the prevention of criminal prosecution, is applicable to the investigation of justice in connection with the most crucial violations of the law and the Constitution over the last 8 years. The application of the Pegasus system's opposition, the violation of rights during the pandemic, the fraud of provisional detention provisions, the non-publication of decisions of the Constitutional Court or the certification of untruth in papers would become "immeasurable" in the event that the President's right to extend the right of grace to abolition against circumstantial persons is recognised. It's not about Kamiński and Wąsik that the leading PiS politicians are fighting. They fight for their impunity.”

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