Is the pardon a safety net or a relic? Controversy following President Andrzej Duda's decision

Presidential acts of clemency will always be controversial. During his presidency, Lech Wałęsa pardoned one of the leaders of the Pruszków mafia, Andrzej Z., better known as "Słowik." His successor, Aleksander Kwaśniewski, at the end of his term did the same to Zbigniew Sobotka, a prominent activist convicted in the so-called Starachowice scandal for warning local government activists (suspected of collaborating with the underworld) about planned arrests. Andrzej Duda, in turn, pardoned Law and Justice (PiS) activists Mariusz Kamiński and Maciej Wąsik before their convictions even became final.

I didn't want to work (on the border) so I wandered around

The case is no different with the pardon of Robert Bąkiewicz, a nationalist activist convicted under Article 217 of the Penal Code for violating the bodily integrity of Katarzyna Augustynek, known as "Grandma Kasia," during a brawl during the Women's Strike. He was sentenced to 30 hours of community service and ordered to pay the victim 10,000 złoty in compensation. The sentence also included public disclosure of the verdict.

The request for Bąkiewicz's clemency was submitted to the president by the former Prosecutor General, Zbigniew Ziobro, who simultaneously suspended the execution of the sentence. The president pardoned the founder of the Border Defense Movement, active on the western border, after the current Prosecutor General, Adam Bodnar, overturned the order suspending the execution of the sentence.

As we read in a statement published by the Chancellery of the President, Andrzej Duda made this decision taking into account, among other things, the positive opinion of the community, the incidental nature of the act and his stable lifestyle.

An act of clemency does not overturn a judgment or result in the acquittal of the convicted person, but only concerns its consequences. Both case law and legal doctrine emphasize that it may concern mitigation of punishment and punitive measures, as well as other public-law consequences of a conviction, not private-law ones. Therefore, the act of clemency only covered the remission of a prison sentence, which means that the obligation to pay compensation to the injured party remains.

In the light of the law, Bąkiewicz is also a convicted person, although this will not have a significant impact, for example, on the performance of public functions, because the verdict concerned a crime prosecuted at the private prosecutor's office, not at the public prosecutor's office.

Bąkiewicz's pardon sparked enormous controversy. The question arises whether, in a democratic state governed by the rule of law, based on the principle of separation of powers, where judicial power is exercised by courts and tribunals, the institution of presidential pardon, which alters the effects of rulings, still makes sense.

A pardon allows you to respond to the situation that arises after the verdict

As Professor Jacek Zaleśny, a constitutional scholar at the University of Warsaw, points out, the origins of presidential pardons date back to the time when the monarch consented to courts exercising judicial power on his behalf. "By expressing this consent, he stipulated that he was still the source of justice and, if he so desired, was able to abolish the negative consequences of a court ruling. In this context, the power of pardon remains stretched between lex and ius, and thus between law and justice," Professor Zaleśny points out.

As he points out, the proper application of this institution relies on non-interference with the judiciary, meaning no questioning of the content of a court decision or its assessment. The application of the power of pardon should be influenced not so much by circumstances from before the conviction, but by those that emerged later, after the conviction.

"These are cases where the element of justice is lost in the execution of a sentence, and the execution of the sentence becomes detrimental to public order. For example, if an inmate's mother suddenly becomes ill and requires daily assistance, the question arises whether it is more advantageous from a justice perspective to keep the inmate in prison, which would result in the mother being placed in a nursing home, for example, or to pardon the remainder of the sentence and allow him to provide care," explains Professor Zaleśny.

As the report points out, many pardon applications are submitted by individuals who have already served their sentences but still have criminal records, which prevent them from performing certain functions or pursuing many professions. In their case, pardons are intended to expunge their convictions and allow them to resume professional activity more quickly.

– Considering that the effects of a given ruling last for years and the personal situation of the convicted person can change dramatically, it is reasonable that presidential intervention could mitigate the effects of a court ruling, but only if the head of state acts in good faith to pursue the public interest and the common good referred to in Article 1 of the Constitution, and is not guided by political motives or grants pardons to people close to him or, as in the United States, his donors – adds the constitutional lawyer.

Bad practice has distorted the meaning of the act of grace

Dr. Piotr Starzyński, from the University of Warmia and Mazury in Olsztyn, disagrees, arguing that in a modern state ruled by law, this institution could be dispensed with. "Especially since there are so many legal solutions aimed at overturning a final judgment, such as reopening proceedings or cassation. The fact that this institution exists in virtually every European state with the hallmarks of a modern rule of law stems more from tradition than from the need to correct grossly unfair decisions. Unfortunately, the Constitution's silence on the grounds for applying this institution has meant that over the years, the use of the power of pardon has often had a political advantage," explains the attorney.

He adds that the impoverishment of this institution is occurring not only in Poland. "Yes, in our country, the president has pardoned politicians before their final conviction. In the United States, the president has pardoned them for the future. The question of whether it makes sense to maintain this institution is entirely justified, because in practice, decisions made by the head of state often conflict with a sense of social justice."