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2012 | 1(108) | 59-70

Article title

Niegodność wyborcza a niektore instytycje prawa karnego i konstytucyjnego

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The work on a bill to amend the acts governing elections of the Sejm and the Senate, as well as the act on presidential elections, which adjusted these acts to the wording of Article 99 para. 3 of the Constitution (added in 2009) – resulting in adoption of the bill and its promulgation in Dziennik Ustaw – has not attracted much interest. Meanwhile, the manner in which the text of the above-mentioned amendment was prepared, as well as its final wording, subsequently “transferred” to the Election Code, tells us a lot about the way of interpretation of constitutional terms and understanding of the Constitution by the Polish legislator. Another issue, almost completely ignored by those working on constitutional amendments and revision of electoral laws, but also by the law doctrine, is the effect of the erasure of the entry from the register of convictions in relation to the candidate on his eligibility. In the author’s opinion, the predominant approach to this question is wrong, since it is based on interpretation of constitutional concepts from the angle of statutory terms, while the opposite reasoning should be applied. While the approach that the concept of ‘convicted person” already existed on the day of the adoption of the Constitution would be defended, identical value would be attributed to the concept of ‘offence” which, however, is interpreted by reference to the autonomous notions of the Constitution of 2 April 1997. In the conclusion, the author, taking a literal and autonomous approach to statutory regulations of the cited provision of Poland’s constitution, claims that the existing statutory regulations have not still been fully adjusted to constitutional provision, especially to the extent that Article 106 of the Penal Code requires electoral bodies to treat as non-existent the conviction by the valid judgment of the court to the penalty of deprivation of liberty for intentional offence prosecuted by the public prosecutor when entry on such conviction was erased from the register. Consequently, inclusion of the above-mentioned mechanism into the newly adopted Election Code makes this act defective to the extent in question. In the author’s view, the said amendment of the Constitution, doubtful in the context of conformity with the constitutional requirements existing in the moment of its adoption, has given a new, constitutionally relevant, meaning to the matter of procedure – public or private – of prosecution of offences. As a result, all legislative proposals aiming at widen the catalogue of such offences should meet the requirements specified in Article 31 para. 3 of the Constitution.





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  • Wydział Prawa i Administracji Uniwersytetu Jagiellońskiego, ul. Gołębia 24, 31-007 Kraków, Poland


Document Type

Publication order reference


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