Legal Eye: The privileges of power

"From the date of election until the expiry of his mandate, a Deputy shall not be subjected to criminal accountability without the consent of the Sejm"
 - article 105, Polish Constitution

Once the results of an election to the Sejm or Senate are announced, the winning deputies and senators generally enjoy immunity from criminal prosecution throughout their term in office, unless such immunity is affirmatively waived by the Sejm or Senate, respectively. Exceptions to this general rule exist, but their scope is limited.

Criminal proceedings suspended
Andrzej Lepper's colorful past should not be an obstacle to his parliamentary career. Criminal proceedings instituted against a person prior to his or her election as deputy are usually suspended automatically upon request of the Sejm, which in turn suspends any statute of limitations on prosecution until after the deputy has left office.

Crucially, the proceedings are suspended as opposed to being quashed. Once the deputy has left office criminal proceedings may be resumed.

Crimes committed while in office
In general a deputy may be "neither detained nor arrested without the consent of the Sejm" for crimes committed while in office, with the notable exception being that if the offending deputy is apprehended during the commission of the crime, the authorities have the right to apprehend the deputy if "necessary to secure the proper course of proceedings."

A simple traffic violation is not enough. Driving while intoxicated is sufficient to be detained, but not necessarily arrested or prosecuted without the consent of the Sejm.

Regardless of the nature of the crime, the deputy must be released by the authorities if so ordered by the Marshall of the Sejm. Moreover, per article 105(2) of the Constitution, a deputy may not be held criminally accountable without the consent of the Sejm.

Answering to the Sejm
A deputy is accountable to the Sejm for his or her activities while in office. If a deputy infringes the rights of a third party, court proceedings may be initiated only upon the affirmative consent of the Sejm. Without the consent of the Sejm an injured party may not initiate legal proceedings against a deputy while in office.

Prior convictions are no obstacle
A prior conviction, including a conviction for murder, does not in and of itself prevent an individual from being elected to the Sejm - the only exception being that the convicted person must still be legally eligible to vote and the sentence imposed must have been fully served, the logic being that the person convicted has paid his or her debt to society by serving his or her sentence.

In 2001 draft legislation was proposed to prohibit the election of deputies with specific criminal records, such as a conviction for bribery, but the legislation never made it out of committee.

So, for the immediate future the only restrictions placed upon election to the Sejm are those defined in the Constitution, namely Polish citizenship and being at least 21 years' old. In order to serve in the Senate the age limit is raised to 30 years old. Now that Poland is a member of the EU the Polish citizenship requirement no longer applies, despite the wording of Poland's Constitution.

As of May 1, 2004 any citizen of the EU may run for office in the Sejm, provided he or she has established residency in Poland.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners