“The indictment against Mariusz Kamiński and Maciej Wąsik for an offence under Article 244 of the Criminal Code is moot on two counts. Its author accused Kamiński and Wąsik of breaching a ban on exercising the mandate of a Member of Parliament, although no such ban was imposed on them by the judgment of the Regional Court in Warsaw. Moreover, since the judgment was removed from legal circulation by the President of the Republic of Poland’s pardon decision — that is, it was deemed never to have existed — prosecutors and courts may not rely on that judgment in their actions, because, under the law, that judgment did not come into existence and does not exist,” Jacek Wygoda, a retired Supreme Court judge, writes in a legal analysis prepared especially for Niezalezna.pl.
On October 16, 2025, the Regional Prosecutor’s Office in Warsaw announced that it had filed an indictment with the District Court for Warsaw-Śródmieście against Mariusz Kamiński and Maciej Wąsik. They were accused of, on December 21 and 28, 2023 in Warsaw, acting at short intervals pursuant to a preconceived intent, failing to comply with a ban imposed by a final judgment of the Regional Court in Warsaw of December 20, 2023, prohibiting them from holding public positions — namely, positions in government administration, another state or local-government body, state-control bodies, local-government control bodies, and managerial positions in other state institutions — for a period of five years. According to the prosecution, they did so by exercising the mandate of Members of the Sejm of the Republic of Poland, taking part on December 21, 2023 in the proceedings of the Sejm, including votes Nos. 141–147 held by the Sejm, and by participating on December 28, 2023 in a sitting of the Sejm Committee on Administration and Internal Affairs, that is, by committing an act under Article 244 of the Criminal Code in conjunction with Article 12 § 1 of the Criminal Code.
At first glance, the case appears simple.
The information available on the website of the Sejm of the Republic of Poland shows that M. Kamiński and M. Wąsik did indeed take part in the work of the Sejm on December 21 and December 28, 2023. The judgment of the Regional Court in Warsaw, case no. X Ka 613/23, dated December 20, 2023, together with the public part of its statement of reasons, is also available. The judgment found, among others, M. Kamiński and M. Wąsik guilty of committing an offence under Article 231 § 1 of the Criminal Code in concurrence with Article 18 § 1 of the Criminal Code in conjunction with Article 270 § 1 of the Criminal Code, in concurrence with Article 18 § 1 of the Criminal Code in conjunction with Article 13 § 1 of the Criminal Code in conjunction with Article 272 of the Criminal Code, in conjunction with Article 11 § 2 of the Criminal Code and Article 12 of the Criminal Code. It imposed on them a sentence of two years’ imprisonment, as well as a ban on holding positions in government administration and in another state-administration or local-government body, in state-control bodies, in local-government bodies, and in managerial positions in state institutions for a period of five years. Importantly, as the legal basis for the imposed ban, the court cited Article 39 point 2 of the Criminal Code, Article 41 § 1 of the Criminal Code in conjunction with Article 43 § 1 of the Criminal Code.
An analysis of the content of judgment X Ka 613/23 and the prosecutor’s office communiqué of October 16, 2025 raises the following questions:
Does the law currently in force, namely Article 39 point 2 of the Criminal Code and Article 41 § 1 of the Criminal Code, permit a court to impose a ban on exercising the function of a Member of the Sejm or senator?
Are persons serving as parliamentarians, against whom a court has imposed a criminal measure in the form of a ban on holding positions “in other state bodies,” obliged to refrain from exercising the mandate of a Member of the Sejm or senator immediately after such a ruling becomes final?
The answer to these questions must be negative.
First, the criminal measure referred to in the above-mentioned provisions of the Criminal Code — that is, a ban on holding specified positions — does not apply to the function of a Member of the Sejm or senator, because performing such functions is not “holding a position in government administration or another state body.” Performing the function of a Member of the Sejm is an element of exercising public rights, which, in accordance with Article 40 of the Criminal Code, comprise: active and passive electoral rights to a public-authority body, a professional or economic self-government body; the right to participate in the administration of justice; the right to perform functions in state and local-government or professional bodies and institutions; the possession of a military rank higher than private; and the right to hold and obtain orders, decorations, and honorary titles.
The concept of a ban on “holding a specified position,” referred to in Article 39 point 2 of the Criminal Code, does not include exercising the function of a Member of the Sejm or senator, because the Criminal Code links the loss of passive electoral rights solely with the imposition on a convicted person of a criminal measure in the form of deprivation of public rights under Article 39 point 1 of the Criminal Code. That criminal measure was not imposed on M. Kamiński and M. Wąsik by the court.
Of course, pursuant to Article 99 paragraph 3 of the Constitution of the Republic of Poland, a person convicted by a final judgment and sentenced to imprisonment for an intentional offence prosecuted by public indictment is deprived of passive electoral rights to the Sejm or Senate, irrespective of whether the court imposed on the convicted person the criminal measure of deprivation of public rights. This does not mean, however, that immediately after the conviction becomes final, a Member of the Sejm convicted of the offence referred to above loses his parliamentary mandate. Under Article 247 § 1 point 2 of the Act of January 5, 2011, entitled the Electoral Code (Journal of Laws 2023, item 2408), where an incumbent Member of the Sejm loses eligibility to be elected, including as a result of being convicted of an intentional offence and sentenced to imprisonment — and there is no doubt that M. Kamiński and M. Wąsik were convicted of such an offence and sentenced to such a penalty — the mandate held by the convicted parliamentarian expires.
However, the provisions of the Electoral Code make clear that the expiry of the mandate of Members of the Sejm and senators who have been sentenced to imprisonment for an intentional offence prosecuted by public indictment must be declared by an order of the Marshal of the Sejm or the Marshal of the Senate on the expiry of the mandate of a Member of the Sejm or senator. That order is subject to publication in the Official Journal of the Republic of Poland, Monitor Polski, and therefore takes effect only from the moment of publication, pursuant to Article 249 § 1 and § 2 of the Electoral Code. The effect consisting in the loss of passive electoral rights, which the Constitution and the Electoral Code attach to a final conviction for an intentional offence and a sentence of imprisonment, is not a criminal measure but the so-called statutory consequence of conviction, which is not a sanction imposed by the judgment but affects the offender by operation of law in connection with his conviction. See Criminal Code: Commentary, edited by O. Górniok et al., Gdańsk 2002/2003, p. 433, thesis 11.
Under the applicable provisions of the Electoral Code, an order of the Marshal of the Sejm of the Republic of Poland declaring the expiry of a parliamentary mandate must, even before its publication in Monitor Polski, be served on the Member of the Sejm concerned. That Member has the right to appeal the order to the Supreme Court. If the appeal is dismissed by the court, the order of the Marshal of the Sejm is then published in Monitor Polski, and only that effectively “expires” the parliamentary mandate. This regulation means that before the appeal is examined, the order of the Marshal of the Sejm does not produce legal effects, and therefore the Member of the Sejm may lawfully perform parliamentary duties. As follows from the content of Monitor Polski of January 10, 2024, item 15, Marshal of the Sejm Szymon Hołownia published the order on the expiry of the mandate of M. Kamiński, even though the Supreme Court, by its order of January 5, 2024, case no. I NSW 1267/23, revoked the order of the Marshal of the Sejm of December 21, 2023, on the expiry of M. Kamiński’s mandate as a Member of the Sejm. This means that, by publishing that order, Szymon Hołownia exceeded the powers vested in him under the Electoral Code.
Even if one were to accept the unacceptable position that the Marshal of the Sejm is not bound by a ruling of the Supreme Court, it would still have to be assumed that M. Kamiński’s mandate as a Member of the Sejm was “expired” only on January 10, 2024, that is, on the date of publication of the Marshal’s order in Monitor Polski.
What must be disturbing is that, to this day, the order of the Marshal of the Sejm on the expiry of M. Wąsik’s mandate as a Member of the Sejm has not been published. Formally, therefore, M. Wąsik remained a Member of the Sejm of the Republic of Poland until he took up the function of a Member of the European Parliament, that is, until July 16, 2024.
This circumstance is of fundamental importance in the context of the accusation against M. Kamiński and M. Wąsik of committing an offence under Article 244 of the Criminal Code — an act which, according to the prosecution, they allegedly committed on December 21 and 28, 2023, that is, before January 10, 2024, the date of publication of the Marshal’s order.
To summarise this line of reasoning, it must be stated that the provisions applied by the Regional Court in the judgment convicting Members of the Sejm Kamiński and Wąsik — Article 39 point 2 of the Criminal Code and Article 41 of the Criminal Code — do not provide a legal basis for the court to impose on a convicted person a ban on performing the function of a Member of the Sejm or senator. In the Criminal Code, the legislature granted the court competence to rule on whether a convicted person has lost passive or active electoral rights only under Article 39 point 1 of the Criminal Code, through the imposition on the convicted person of the criminal measure of deprivation of public rights. However, even a court ruling on the deprivation of public rights does not result in the automatic expiry of the parliamentary mandate of a convicted Member of the Sejm or senator. If it were accepted that Article 39 point 2 of the Criminal Code produces the automatic expiry of the parliamentary mandate of an incumbent Member of the Sejm or senator, then the inclusion in the Electoral Code of provisions regulating the procedure — including the appeal procedure — for expiring the mandate of a Member of the Sejm against whom a court has issued a conviction sentencing him to imprisonment for an intentional offence prosecuted by public indictment would be redundant. After all, the provisions of the Executive Penal Code regulating the rules for enforcing criminal measures in the form of bans on performing specified functions or holding specified positions would suffice. The question of who may and who may not exercise the mandate of a Member of the Sejm or senator, and in particular matters connected with the expiry of parliamentary mandates, undoubtedly belongs to constitutional subject matter and is regulated by the Constitution and by provisions “implementing” the Constitution, such as the Electoral Code.
Therefore, one cannot do what the prosecution did in the aforementioned indictment: relying on the criminal measure under Article 39 point 2 of the Criminal Code and Article 41 § 1 of the Criminal Code, accuse Kamiński and Wąsik of committing an offence under Article 244 of the Criminal Code by performing parliamentary duties on December 21 and 28, 2023 — that is, before the alleged expiry of their mandates by the Marshal of the Sejm — and thereby failing to comply with a court-imposed ban. Even if the court had imposed on them — which it did not — the criminal measure of deprivation of public rights under Article 39 point 1 of the Criminal Code, only a final order of the Marshal of the Sejm, that is, one not challenged by the Supreme Court, would have effectively deprived them of the right to perform the function of Members of the Sejm. The same applies to the consequences of convicting an incumbent Member of the Sejm or senator and sentencing him to imprisonment for an intentional offence prosecuted by public indictment.
Another doubt that arises when reading the indictment against the above-mentioned persons concerns the admissibility of the prosecutor’s office relying on the judgment of the Regional Court in Warsaw of December 20, 2023, case no. X Ka 613/23, which imposed on M. Kamiński and M. Wąsik the aforementioned bans. As follows from the official communiqué of the Chancellery of the President of the Republic of Poland dated January 23, 2024, “the President exercised the right of clemency with respect to M. Kamiński and M. Wąsik by remitting the custodial sentences and criminal measures and ordering the conviction to be expunged.”
Since Article 106 of the Criminal Code provides that “upon expungement of the conviction, it is deemed not to have occurred, and the entry concerning the conviction is removed from the register of convicted persons,” it has never been in doubt that, given the legislature’s definition of the institution of expungement, a person whose conviction has been expunged may declare himself or herself to be a person with no criminal record. See Criminal Code: Commentary, General Part, edited by M. Królikowski and R. Zawłocki, Warsaw 2017, pp. 1290–1291 and the literature cited therein; Criminal Code: Commentary, edited by A. Grześkowiak and K. Wiak, Warsaw 2018, p. 673; B. Stefańska, Expungement of Conviction, Warsaw 2014, p. 214.
The Supreme Court has also taken the same position, for example in its order of April 10, 2019, case no. IV KK 66/18; judgment of January 19, 2016, case no. V KK 372/15; and judgment of June 28, 2023, case no. I KK 20/23. The above-mentioned “fiction of non-conviction” binds judicial authorities and executive authorities. Even under the Criminal Code of 1969, the Supreme Court held in its judgment of December 23, 1975, case no. IV KRN 69/75, that “a prior conviction for an offence or misdemeanour may not constitute a circumstance affecting the aggravation of the penalty if, by operation of statutory provisions, the conviction is deemed not to have occurred.” Similar rulings were issued under the currently applicable Criminal Code of 1997. See the Supreme Court order of August 21, 2012, case no. IV KK 59/12; Supreme Court judgment of February 20, 2024, case no. III KK 602/23; and Supreme Court judgment of August 23, 2023, case no. V KK 248/23.
In one of its judgments, the Supreme Court stated directly that “the effect of expungement of a conviction is therefore that not only the conviction, but also the very commission of the offence, is deemed not to have occurred. This means that the offence did not occur at all,” Supreme Court judgment of June 18, 2009, case no. IV KK 164/09. The prevailing view in legal doctrine is also that “in other criminal proceedings, one may not rely on prior convictions as an aggravating circumstance, and thus disclose the prior criminal record,” B. Stefańska, op. cit., pp. 216–217.
Sharing these views, it must be concluded that a prosecutor who, in his indictment, refers to the content of an “expunged” conviction — which, under the statute, is deemed not to have occurred — grossly violated Article 106 of the Criminal Code. The wording used by the legislature in Article 106 of the Criminal Code, namely that “the conviction is deemed not to have occurred,” annuls the expunged conviction retroactively from the legal order. If this were not the case, the institution of expungement would prove to be a complete fiction. Expungement of a conviction, quite obviously, will always concern the past — the conviction is deemed not to have occurred, as the statute provides — and will produce effects for the future. From the moment of expungement, a person whose conviction has been expunged is regarded as a person with no criminal record.
Moreover, since Article 106 of the Criminal Code provides that data concerning the conviction are removed from the register of convicted persons, it must therefore be concluded that the statute excludes the possibility of state authorities using such “removed information” after expungement of the conviction. This is indicated by the wording of Article 14 paragraph 1 points 1 and 2 of the Act of May 24, 2000 on the National Criminal Register (Journal of Laws 2024, item 276), which require that the data of persons finally convicted of an offence or fiscal offence, or persons against whom criminal proceedings were conditionally discontinued or discontinued on the basis of an amnesty, be removed from the criminal register if their conviction has been expunged. Any use by a court or prosecutor’s office of information concerning an already expunged conviction has no basis in the applicable provisions and must therefore be treated as a violation of Article 7, Article 47, and Article 51 paragraph 5 of the Constitution of the Republic of Poland. These provisions impose on state authorities the duties to observe the law, to legally protect the good name and dignity of citizens, and to make available and use information collected by the state only in a manner consistent with statutory provisions.
The consequence of expungement of a conviction is the impossibility of using the “expunged judgment” as evidence that a person whose conviction has been expunged committed another offence before the expungement, for example by failing to comply with one of the bans imposed on him by the judgment and referred to in Article 39 point 2 or point 3 of the Criminal Code. Since the conviction has been expunged and the information about it has been removed from the criminal register, there is no evidentiary instrument in the form of a final ruling imposing a specific ban — a ban which the perpetrator was allegedly to have breached by his conduct at a time when the judgment convicting him had not yet been expunged.
In conclusion, it must be stated that the indictment against M. Kamiński and M. Wąsik for an offence under Article 244 of the Criminal Code is moot on two counts. Its author accused M. Kamiński and M. Wąsik of breaching a ban on exercising the mandate of a Member of the Sejm, although no such ban was imposed on them by the judgment of the Regional Court in Warsaw mentioned at the outset. Moreover, since that judgment was removed from legal circulation by the President of the Republic of Poland’s pardon decision — that is, it was deemed never to have existed — prosecutors and courts may not rely on that judgment in their actions, because, under the law, that judgment did not come into existence and does not exist.