Commissioner for Human Rights

A fully independent and efficient Constitutional Tribunal guarantees the existence of the real rights and freedoms of citizens in Poland – speech of Adam Bodnar, the Commissioner for Human Rights before the Constitutional Tribunal on 8 March 2016


Honourable Tribunal,

The today’s hearing before the Honourable Tribunal is of historical importance.

I am not afraid of saying that.

This is the first time in its 30-year history that the Constitutional Tribunal is bound to adjudicate directly on the basis of the Constitution. What’s more, it must also adjudicate on the statute that is aimed in fact at paralysing the functioning of the Constitutional Tribunal.
The Republic of Poland is a state of constitutional democracy. This term means that the Constitution regulates the operational procedure of organs of the national authorities, ensures a tri-partite division of power and their mutual relations, as well as ensures their mutual counterbalancing.

However, these principles are to safeguard the rights and freedoms of persons and citizens.
The constitutional democracy also means that in order to amend the Constitution, it is necessary to have an appropriate constitutional majority, as explicitly specified in the Constitution, while the amendment must be made in the corresponding manner. If the majority is not in place, it is not possible to undertake any actions which would lead to a similar outcome as the amendment of the Constitution – although they do not constitute an amendment of the Constitution in a formal way.

However, the amendments adopted by the Act of 22 December 2015 on amending the Constitutional Tribunal Act are aimed at achieving such an objective.

They factually amend the Constitution in terms of the consequences of the functioning of the Constitutional Tribunal. I am referring first and foremost to:

  • the required number of 13 judges to adjudicate in a case;
  • the required majority of two-thirds of the voices to take a decision;
  •  the injunction to hear cases according to their number in the list of new cases brought before the Tribunal;
  • or finally the statement that a particular case may be subject to examination not sooner than after 6 months from the date of publication of a legal act.

I believe we cannot disregard the consequences such provisions may have.

  • Let’s take into consideration the required full bench of the Tribunal.

It is sufficient to exclude at least 3 judges (for various reasons – an illness, from that a particular judge did formerly participate in the legislative process) in order not to be able to form a sufficient bench to hear a particular case (what’s more, the requirement specified in the new statute will also apply to the cases which have already been brought before the Constitutional Tribunal).
Not much imagination is required to conclude that the requirement will make the period for examining cases much longer, both for ongoing cases and new cases that will be brought before the Constitutional Tribunal. This will be caused by the requirement to involve all the judges in almost each case. This solution is irrational, and as such – inconsistent with the principles of decent legislation.

  • On the other hand, shall we consider the required majority of two-thirds of the judges’ voices to take a decision; the requirement is obviously inconsistent with the Constitution that does not lay down such a required majority.

Let’s consider if the parliament could pass a statute that for example would increase the majority necessary to adopt a motion of no confidence in the government? Such a solution would not be acceptable – it is similarly not possible to accept that the majority is increased with regard to the Constitutional Tribunal.

  • Nor is it possible to agree that the political power – by influencing the disciplinary proceedings of the judges or the expiry of their terms of office – may interfere in the impartiality of the judges, as it is directly relevant for their capacity to adjudicate, in particular in complex cases.

Of course, Honourable Tribunal – irrespective of the ruling which is to be issued – the Constitutional Tribunal will survive. There will be still a sub-chapter in Chapter VIII of the Constitution. However, the question arises whether this will be the same Constitutional Tribunal. Will it perform its most important function or will it be a purely decorative organ?

In accordance with Art. 5 of the Constitution, the Republic of Poland “shall ensure the freedoms and rights of persons and citizens”.
One of the state’s duties is to ensure the rights and freedoms of persons and citizens. The state – by operation of its action – shall act in this direction, shall strive to strengthen the protection of the rights and freedoms of individuals. This is our historical obligation.

Because – as mentioned in the preamble of the Constitution – we are, we must be – “mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland”.
It is worth pointing out that the fragment of the preamble of the Constitution also states that the Constitution is to safeguard the rights and freedoms of citizens forever.

I would like to emphasize the expression: to safeguard the rights of citizens forever.
The whole system of public institutions is not to exist only on paper, but it is to perform the fundamental function that is linked with historical tragic experiences of the Republic of Poland.

However, the Sejm – by operation of the passed statute – strives to deprive citizens of the basic mechanism of protecting their rights or – at least – makes the mechanism highly unpredictable. At the moment a constitutional complaint, legal question or an abstract motion is filed, the question arises when the Constitutional Tribunal will be able to deal with such a case at all. Another question arises as to the consequences of the statutes until the date the Constitutional Tribunal has adjudicated on them. The consequences may be sometimes irreversible.

Acting as the Commissioner for Human Rights, I address you to protect the rights of all those people that have applied to the Constitutional Tribunal in recent years and are still waiting for their cases to be dealt with. I also address you in the name of all those people whose constitutional doubts have been brought before the Constitutional Tribunal only recently.
I could enumerate a large number of social and legal problems that are still to be examined by the Honourable Tribunal, which have become subject to applications, complaints and legal questions.
Moreover, we may not forget about the fact that the Constitutional Tribunal does function in the European constitutional sphere. For example, one of the cases brought before the Constitutional Tribunal at the initiative of the Commissioner for Human Rights has become subject of a motion for a preliminary ruling filed with the Court of Justice of the European Union (this is a case concerning the VAT rate for e-books).

This points to the fact that the Constitutional Tribunal does not function in a void, only and exclusively in the context of our national legislation, but it also exists in the European constitutional sphere. We must take the above into account.

A fully independent and efficient Constitutional Tribunal guarantees the existence of the real rights and freedoms of citizens in Poland.
The task is imposed on the Tribunal by the Constitution. The Constitutional Tribunal is an organ to adjudicate whether a particular limitation of the rights and freedoms was introduced in a correct way (by means of a statute), and whether it is proportional to the achieved goal.
Without such a possibility – or if the possibility to examine a case by the Tribunal were purely theoretical, as being quite distant in time – we would be in a situation when the rights and freedoms of citizens were dependent on the parliamentary majority.

The rights will become an element of the political diktat and not a reliable and independent constitutional reflection.

Somebody could say – so what, as constitutional complaints or legal questions will be examined by a 7-person bench as specified in the amended statute. However, the problem is that there must be a specific case [confirmed by the final judgment issued by the court] in order to raise a constitutional complaint or legal question.

The experience shows that a significant majority of the most important cases of the Constitutional Tribunal are cases that are examined on the basis of abstract applications. The Commissioner for Human Rights files over 20 applications in various cases every year (applications are also filed by groups of the Sejm Deputies or other authorized organs).They have made it possible so far to issue valid rulings. Not only have they resulted in strengthening the protection of the rights and freedoms of individuals, but have often solved important disputes from the point of view of history or settling accounts with the past, an example being for instance the case of the act on the so-called dezubekizacja.

The Constitutional Tribunal has been built by generations of lawyers. It is a symbol of our constitutional democracy. In my opinion, the Constitutional Tribunal is to guarantee the human rights forever, as mentioned in the preamble.
Many citizens – although they may sometimes not be aware of and feel that – owe a lot to the Constitutional Tribunal.
And this is exactly our common responsibility – that the organ survives and functions further in a normal way, that we do not let the basic mechanism of protecting the rights and freedoms of citizens be damaged.

Therefore I request as stated in the application.