The status of a Sejm Deputy or Senator deprived of liberty Kp 2/25
On 9 July and 1 October 2025, the Constitutional Tribunal considered the application lodged by the President of the Republic of Poland with regard to the status of a Sejm Deputy or Senator deprived of liberty.
In its judgment of 1 October 2025, in part I thereof, the Constitutional Tribunal adjudicated that:
‘(1) Article 1(1) of the Bill of 21 February 2025 adopted by the Sejm to amend the Act on the Exercise of the Mandates of Sejm Deputies and Senators, insofar as it assigns a new meaning to Article 5a of the Act of 9 May 1996 on the Exercise of the Mandates of Sejm Deputies and Senators (Journal of Laws – Dz. U. of 2024, item 907) in the part comprising paras 1 and 3,
(2) Article 2 of the Bill of 21 February 2025 adopted by the Sejm to amend the Act on the Exercise of the Mandates of Sejm Deputies and Senators, insofar as it makes reference to Article 23(10a) of the Act of 9 May 1996 on the Exercise of the Mandates of Sejm Deputies and Senators
– are inconsistent with Article 7, Article 118(1), Article 119(1) and Article 121(2) of the Constitution of the Republic of Poland, in view of the fact that the scope of the amendments adopted by the Senate has exceeded the scope of the subject-matter of the Bill adopted by the Sejm’.
Moreover, in part II of the judgment, the Tribunal adjudicated that the provisions invoked in part I were inextricably linked with the aforementioned Bill as a whole.
The ruling was unanimous.
The President of the Republic of Poland lodged his application on the basis of Article 122(3) of the Constitution, alleging that the scope of the Senate’s amendments to the Bill of 21 February 2025 adopted by the Sejm to amend the Act on the Exercise of the Mandates of Sejm Deputies and Senators had exceeded the scope of the subject-matter adopted by the Sejm, and thus had infringed Article 7, Article 118(1), Article 119(1) and Article 121(2) of the Constitution. The Constitutional Tribunal stated that it was admissible to conduct an a priori review (i.e. a preventive review), and deemed that the problem consisted in the fact that the Senate had exceeded the scope of the amendments.
In accordance with the Tribunal’s well-established jurisprudence (i.e. its case law), the Senate’s amendments may be of formal and/or substantive nature, but they must remain related to the Bill adopted by the Sejm and subsequently referred to the Senate. The exceeding of the said scope requires taking legislative initiative and may not be rectified even by the Sejm’s adoption of such amendments. Nor may the Senate replace the aforementioned Bill adopted by the Sejm with new legal provisions, except for necessary modifications to the Act being amended.
The Tribunal recalled the distinction between the “depth” of amendments and the “width” thereof: changes to the content that has already been regulated (depth), and proposals that are alternative to the adopted solutions but fall within the limits of the subject-matter covered by the Bill in question (width), are admissible. By contrast, what is regarded as inadmissible entails going beyond the scope of the submitted text of the amending Bill and introducing, sort of “by the way”, other changes to the Act being amended. The said inadmissibility is not eliminated by the fact that the Sejm has adopted the amendments in question, because a breach of the legislative procedure is irremovable in nature. An analysis of the stages of the legislative work revealed that, in the course of the said work on the Bill in question, the Senate expanded the scope of the said Bill by adding provisions on the back payment of the remuneration and parliamentary allowance to a Sejm Deputy or Senator who has been acquitted or with regard to whom the relevant proceedings have been discontinued. The Senate’s committees recommended that the following amendments be adopted:
1. the new wording of Article 5a – a detailed catalogue of rights and obligations to be suspended in the event that a Sejm Deputy or Senator should be deprived of liberty or try to avoid being remanded in custody; the addition of para 3 about the back payment of the relevant remuneration and parliamentary allowance upon acquittal (with the exceptions such as: conditional discontinuance of proceedings; amnesty; time-bar for proceedings);
2. a change to Article 23(10a) of the transitional provision, introducing adjustments to the legal provisions on offices for Sejm Deputies and Senators.
Both amendments constituted autonomous normative solutions, and were not covered by the original scope of the Sejm’s Bill. Consequently, they infringed Article 121(2) of the Constitution, which in turn entails a violation of the following: the principle that bills are considered in the course of three readings (Art. 119(1) of the Constitution); the right to introduce legislation (Art. 118(1)); and the principle that public authorities function on the basis of, and within the limits of, the law (Art. 7).
The Tribunal stressed that public authorities’ powers may not be presumed (Art. 7 of the Constitution), and the Senate’s amendments modifying legal provisions, sort of “by the way’, are unconstitutional. Thus, it should be deemed that Article 1(1) of the Bill of 21 February 2025 adopted by the Sejm to amend the Act on the Exercise of the Mandates of Sejm Deputies and Senators – as regards the new wording of Article 5a(1) and (3) – and Article 2 of the said amending Bill infringe the Constitution.
Since the Tribunal found Article 1(1) – as regards the new wording of Article 5a(1) and (3) – and Article 2 of the amending Bill adopted by the Sejm to be unconstitutional, as well as due to the inextricable link between those provisions and the entirety of the aforementioned Bill, the Tribunal held that the Bill as a whole may not enter into force. This implies the obligation on the part of the President of the Republic of Poland – arising from Article 122(4) of the Constitution – not to sign the said Bill into law.
The judgment was delivered by the Constitutional Tribunal sitting en banc, with the President of the Constitutional Tribunal, Judge Bogdan Święczkowski, as the Presiding Judge, and Judge Justyn Piskorski as the Judge Rapporteur.