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The Polish President’s act of pardon as a negative premiss causing the inadmissibility of: criminal proceedings, proceedings on misdemeanours, or criminal enforcement proceedings K 9/17

The interpretation of constitutional terms provided by the Supreme Court and the Supreme Administrative Court on the basis of the meanings of terms included in legal acts equivalent to ordinary statutes as well as the Polish President’s act of pardon as a negative premiss causing the inadmissibility of: criminal proceedings, proceedings on misdemeanours, or criminal enforcement proceedings

On 17 July 2018 at 9.00 a.m., the Constitutional Tribunal delivered its ruling on the Public Prosecutor-General’s application concerning the interpretation of constitutional terms provided by the Supreme Court and the Supreme Administrative Court on the basis of the meanings of terms included in statutory acts as well as the Polish President’s act of pardon as a negative premiss causing the inadmissibility of: criminal proceedings, proceedings on misdemeanours, or criminal enforcement proceedings.

The Constitutional Tribunal adjudicated that:

1) Article 17(1) of the Act of 6 June 1997 – the Criminal Procedure Code,

2) Article 5(1) of the Act of 24 August 2001 – the Code of Procedure Concerning Misdemeanours,

3) Article 15(1) of the Act of 6 June 1997 – the Executive Penal Code

insofar as they do not render amnesty granted in individual cases as a negative premiss for conducting, respectively, criminal proceedings, proceedings on misdemeanours or criminal enforcement proceedings – are inconsistent with Article139, first sentence, of the Constitution of the Republic of Poland.

As to the remainder, the Tribunal discontinued the proceedings.

The ruling was adopted by a majority vote.

There was one dissenting opinion, filed by Judge Leon Kieres.


The Constitutional Tribunal stated that the power of pardon, as referred to in Article 139 of the Constitution, constitutes a presidential prerogative arising from Article 144(3)(18) of the Constitution. The Tribunal pointed out that a distinction should be drawn between the following two notions in legal Polish: ‘prawo łaski’ (the power of pardon), being broader semantically, and ‘ułaskawienie’ (the grant of pardon), being narrower in meaning.

The latter term refers only to persons who have been convicted by a legally effective judgment; by contrast, the former term also comprises – apart from the complete or partial remittal of punishment (including the alleviation thereof) – amnesty granted in individual cases, which results in a prohibition against instituting proceedings with regard to a given person or in staying and discontinuing proceedings that are already pending. The wording of Article 139 of the Constitution clearly indicates that the President of the Republic may exercise his/her power of pardon, including also the power to grant amnesty in individual cases. In this context, one may not claim that there is “the presumption of the President’s competence” as regards the granting of amnesty in individual cases, as the said competence clearly arises from the legislator’s use of the most general phrasing possible.

The Constitutional Tribunal noted that in countries where such an approach has been adopted, there is no doubt that the power of pardon also comprises amnesty granted in individual cases. In other approaches, the exclusion of amnesty granted in individual cases is either rendered explicitly in the Constitution or in a relevant statute issued on the basis of a constitutional provision.

Both, the Constitution of 17 March 1921 and the Constitution of 23 April 1935 explicitly ruled out the possibility of amnesty being granted by the President of the Republic in individual cases.

A general formula of the power of pardon was adopted only in the Constitution of the People’s Republic of Poland, in the amended Constitution of the People’s Republic of Poland – which restored the office of the President of the Republic – as well as in the 1992 Constitution of the Republic of Poland. Obviously, the current formula may be changed, in compliance with the will of the legislator.

However, until that time, authorities applying the law may not, by means of an interpretation, modify the provisions of the Constitution which regulate the systemic position of the President of the Republic, as this would constitute a glaring infringement of the principle of the tri-division of powers.

The fact that amnesty granted in individual cases falls within the constitutional scope of the power of pardon follows not only from the linguistic, historical and comparative interpretations, but also from Article 139, second sentence, of the Constitution. The said provision of the Constitution only rules out the possibility of exercising the power of pardon in the case of individuals convicted by the Tribunal of State. The provision establishes an exception to the general rule, and hence the applicable principle here is ‘exceptiones non sunt extendendae’, in accordance with which exceptions should not be interpreted in a broadening way. What would be an example of a broadening interpretation is the exclusion of amnesty granted in individual cases.

The presidential prerogatives fall within the realm of imperium and are personal in character. It should be assumed that the Constitution reserves the power of pardon for the President of the Republic, to be exercised autonomously, without any necessity for action (or collaboration) from another authority representing the executive or the judiciary.

The President of the Republic is “the supreme representative of the Republic of Poland” (Art. 126(1) of the Constitution), and the said President’s systemic role is of significance for the assessment of the legal character and importance of the exercise of the power of pardon. Therefore, until the legislator takes legislative action in this respect, it is possible neither to modify that competence vested in the President of the Republic nor to introduce a mechanism for verifying the power in a legal act that is lower in hierarchy than the Constitution or in the jurisprudence of courts and tribunals.

The arbitrariness of a decision taken by the President of the Republic within that scope may constitute an argument for restricting the aforementioned prerogative in a future constitution. At the moment any restriction of the application of the power of pardon to some of its elements would lead to the infringement of the constitutional provisions concerning the President’s prerogative, and thus it would infringe the constitutional principle of the separation of and balance between powers.

In the Tribunal’s opinion, the provisions regulating the systemic position of the President of the Republic may not be deemed unconstitutional. The representatives of the legal doctrine who criticise the recourse to the power of pardon with regard to a person who has not been convicted by a legally effective judgment, in fact, imply the unconstitutionality of Article 139 and Article 144(3)(18) of the Constitution.

The above approach is inadmissible, since one may not declare the non-conformity of the provisions of the Constitution to the Constitution. Therefore, it may not be asserted that the exercise of the aforementioned presidential prerogative infringes the principle of the separation of powers or the right to a fair trial or the principle of the presumption of innocence.

The Constitutional Tribunal stressed that it understood the reservations raised by some citizens as to the limits of the power of pardon having been set excessively broadly. However, the Tribunal pointed out that they may possibly be taken into account by the drafters of a new constitution.

The Tribunal disagreed with the argument that amnesty granted in individual cases infringes the principle of the separation of powers as well as the right to a fair trial. Indeed, it is not the task of President of the Republic to administer justice; the head of state does not determine the truth, guilt, or punishment. Thus, the exercise of the power of pardon does not constitute interference in the scope of the competence of the judiciary.

The Presiding Judge of the adjudicating bench was Judge Zbigniew Jędrzejewski, and the Judge Rapporteur was Judge Grzegorz Jędrejek.