Commissioner for Human Rights

On 8th January, the Commissioner filed a request with the Constitutional Tribunal of the Republic of Poland to declare provisions of the Act of 22 December 2015 amending of the Constitutional Tribunal Act (Dz. U. Item 2217) unconstitutional.

 The Commissioner, basing its legitimacy to initiate proceedings before the Tribunal, emphasized that the smooth functioning of the Constitutional Tribunal of the Republic of Poland is one of the necessary conditions to ensure the effectiveness and efficiency of the system to protect the rights of individuals, and from the point of view of standards of protection of freedoms and rights infringed by public authorities being the regulatory authority, which is manifested in legislating generally applicable laws, it is essential that the procedure governing proceedings before the Tribunal provides effective protection of these freedoms and rights.

Incompatibility of the act amending the Constitutional Tribunal Act with Article 7, Article 112 and Article 119 para 1 and 2 of the Constitution

In the opinion of the Commissioner, in the first place, the constitutional doubts are raised by the mode of adoption of the bill amending the Constitutional Tribunal Act. The pace of legislative work (parliamentary draft of the Amendment of the Constitutional Tribunal Act was submitted to Parliament on 15 December 2015, and on 28 December 2015 – the amendment was signed by the President and published in the Journal of Laws of the Republic of Poland) put at risk such constitutional values as the principle of citizens' trust in the State and law, arising from Article 2 of the Constitution and expressing, inter alia, the obligation to lawmaking - particularly when it concerns the foundations of the democratic state of law –after considering any reason, or principle of social dialogue resulting from the preamble to the Constitution assuming that the final legislative decisions will be preceded by a dialogue with all the representative actors in society.

In the opinion of the Commissioner, the proceeding of the parliamentary draft law regulating the issues of systemic authority of the State at an accelerated pace law is primarily to circumvent Article 123 para 1 of the Constitution governing the cases in which the Council of Ministers may consider the bill as urgent. In fact, contrary to the prohibition under Article 123 para 1 of the Constitution, an urgent matter which was excluded from this mode was proceeded.

Furthermore, in accordance with Article 119 para 1 of the Constitution, the Parliament considers a bill in three readings, and the case-law shows that this rule should not be understood purely formal, i.e. as a requirement to examine the same bill three times. The procedure of three readings is to facilitate, among others, taking into account in the law making process all aspects of the problem in question.

In the case of the proposal, despite the allegations of non-compliance the proposed solutions to the Constitution contained in the submitted to the Parliament positions of the First President of the Supreme Tribunal, the National Council of the Judiciary, the Attorney General, the Supreme Bar Council, the Helsinki Foundation for Human Rights, not resorted to the opinions and expertise, nor has there been an in-depth discussion of the objections to the draft submitted by listed entities.  Meanwhile, no constitutional reasons did justify the exceptional haste in adopting this bill, they also were not mentioned in the explanatory memorandum to the bill.  Moreover, the matter at issue concerned the authority of the judiciary, which is not a body reporting to the legislature. Article 10 paragraph 1 of the Constitution is clear in that regard that the Polish political system is based on the separation and balance between the legislative, executive and judicial powers. Balance as a feature of the political system presupposes dialogue between the different segments of power, but does not assume the domination and dictates one segment of power. Therefore, in the opinion of the Ombudsman Act amending the Law on the Constitutional Tribunal of the Republic of Poland is incompatible with Article 119 paragraph. 1 of the Constitution, as Parliament, albeit in three readings passed a bill, but not dealt with it in the sense that gives it this constitutional norm.

Doubts are also raised by the constitutional amendments to the input mode of the proposal Law, which essentially concerned a matter not included in the original draft law and have not been subject to consultation with the National Council of the Judiciary and the Supreme Tribunal, and the quality of the justifications that had not been fulfilling the standards laid down in the Sejm Rules of Procedure. These arguments lead to the conclusion that the challenged law was enacted with a violation of constitutional dimension of the agenda of the Sejm. This supports the allegation that the Act is inconsistent with Article 112 of the Constitution. Infringement of the procedure for the establishment of a normative act also leads to violation of the constitutional principle of the rule of law (Article 7 of the Constitution).

Incompatibility of Article 1 subpara 2, supbara 7 and 8 of the act amending the Constitutional Tribunal Act with Article 173 in connection with Article 10, with Article 180 para 2 and Article 195 para 1 of the Constitution

In the opinion of the Ombudsman, also the provisions on the procedure for the determination of the expiry of the mandate of a judge of the Constitutional Tribunal of the Republic of Poland, were adopted in violation of the Constitution.  First of all doubts are raised by the fact that this Parliament is to ultimately decide the expiry of the mandate of the judge, and the fact that the procedure for revocation of the mandate of a judge may be requested by  the executive authorities, ie., the Polish President and the Minister of Justice.
This solution obviously - in the opinion of the Commissioner for Human Rights - violates the principle of independence of the Constitutional Tribunal and the independence of its judges (Article 173 of the Constitution).

In the opinion of the Commissioner the issue of the independence of the Constitutional Tribunal and the independence of its judges should be viewed from the perspective of the implementation of the responsibility for the protection of individual rights by this authority.
 In the Polish legal system, one of the measures for the protection of constitutional rights and freedoms is a constitutional complaint addressed to the Constitutional Tribunal. As set out by Article 79 para 1 of the Constitution – everyone whose constitutional freedoms or rights have been violated has the right, under the terms of the Act, a complaint before the Constitutional Tribunal. From this point of view, a particular weight is gained by the principle of independence and the independence of the body and people recognizing this measure. This is because only an authority independent from the legislative and executive authority can effectively protect the rights of the individual.

Moreover, the Constitutional Tribunal of the Republic of Poland is the only judicial body empowered to adjudicate on the conformity of laws and ratified international agreements with the Constitution, the constitutionality of the objectives or activities of political parties, the settlement of disputes between the central, constitutional organs of the state and a temporary impediment to the exercise office by the President. In this way the independence of the Tribunal, which creates conditions for carrying out an independent review of constitutionality, becomes a rule, which directly serves the protection of the Constitution itself. Separateness and independence of the Tribunal assumes the separation of the body from other authorities, so as to ensure its full independence in recognizing issues and adjudication.

In addition, authorization by the legislative bodies of executive power to direct requests to the General Assembly of Judges of the Tribunal of initiation in particularly egregious cases, the procedure of impeachment judge of the Tribunal may be a form of unacceptable from the point of view of the political bodies of the Constitution pressure exerted on the judge. Also, the Sejm entrusting the final adjudication of the expiry of the mandate of the judge violates the principle of independence of the Constitutional Tribunal of the Republic of Poland and the independence of its judges. On account of the fact that the judges of the Tribunal shall examine the compatibility of laws with the Constitution, the casting vote in Parliament on the expiry of the mandate of a judge must be seen from this perspective as a form of unacceptable pressure on the judge.

Relations between the Sejm and the judge of the Constitutional Tribunal of the Republic of Poland have been exhaustively defined in the Constitution and it boils down only to the appointment of a person to the position of a judge of the Constitutional Tribunal. This is also confirmed by the content of Article 196 of the Constitution, which entrusts all activities in the field concerning the immunity of a judge of the Constitutional Tribunal of the Republic of Poland to the Constitutional Tribunal of the Republic of Poland itself or the President. Under the rule resulting from Article 180 para 2 of the Constitution, no authority from outside the judiciary may rule on the submission of a judge from office. Consequently, the authorization by the legislature of the Sejm to declare the expiry of the mandate of a judge of the Tribunal is in obvious conflict with Article 180 para 2 of the Constitution.

Inconsistency of Article 1 subpara 3 of the act amending the Constitutional Tribunal Act with the principle of proper legislation stemming from Article 2 of the Constitution

Another regulation of the bill, which in the opinion of the Commissioner, is in contradiction to the Constitution is that, according to which the General Assembly adopts resolutions by a majority of 2/3 of the votes in the presence of at least 13 judges of the Tribunal, including the President or the Vice-President of the Tribunal, unless the act provides otherwise. This solution, in the opinion of the Commissioner is dysfunctional and can paralyse any activity of the Constitutional Tribunal. Long-term illness or other obstacles to participation in the General Assembly of more than two judges may cause, among others, that the draft revenue and expenditure of the Tribunal will not be adopted. Also, the requirement for action by the General Assembly of resolutions by a 2/3 majority, may prevent the practice of adopting such resolutions, contributing to the destabilization of the work of this constitutional body.

In the opinion of the Ombudsman, the analysed solution, as it undermines the smooth adoption of resolutions by the Assembly, and in extreme cases can lead to the paralysis of the constitutional authority, infringes the principle of correct legislation.

Inconsistency of Article 1 subpara 5 of the act amending the Constitutional Tribunal Act with Article 173 in connection with Article 10 and Article 195 para 1 of the Constitution

In the Commissioner's opinion, the provision governing the procedure for the initiation of disciplinary proceedings added in this Act is in breach, as already mentioned, of the constitutional guarantees of independence of the Constitutional Tribunal and judges of the Tribunal. Equipping the executive authorities, by the legislator, with the right to request the initiation of disciplinary proceedings against a judge of the Tribunal, involves the construction of dependency relationships with non-judicial authorities. Meanwhile, a constitutional judge, whose tasks should also be to assess the constitutionality of normative acts issued by the President and the Minister of Justice, is exposed to the possibility of a reaction from those authorities, involving the request for initiation of disciplinary proceedings against him. The above assessment is not altered by the fact that on the merits of the request to initiate disciplinary proceedings in each case determined by the President of the Tribunal. To initiate disciplinary proceedings unequivocally is affected by the perception of a judge and his judicial activity by the society.

Inconsistency of Article 1 subpara 9 of the act amending the Constitutional Tribunal Act with the principle of proper legislation resulting from Article 2 of the Constitution, Article 45 para 1 and Article 188 of the Constitution, as well as Article 47 of the Charter of Fundamental Rights of the European Union

The Commissioner considers that the provisions which make constitutional adjudication by the Tribunal in plenary session into a principle (i.e. Article 1 subpara 9 of the act amending the Constitutional Tribunal Act) are in contradiction with the provisions of the Constitution. The changes made in practice result in, among others, to the fact that applications of authorized entities, even if they concern such as low-rank act as an order of a minister, will be recognized in full composition of the Constitutional Tribunal.
 In contrast, the matter of conformity of laws with the Constitution shall be resolved by an ordinary composition, if the proceedings are instituted by a constitutional complaint or a legal question. From the point of view of the Commissioner it is also important that, in many cases concerning the protection of individual rights, the Commissioner will in fact determine the formation of the Tribunal in his case. Finally, the introduction of adjudication in full sitting as a principle will clearly extend the duration of proceedings before the Constitutional Tribunal, and in some cases even prevent the exercise of its constitutional duties  by this authority.
 Given the above - according to the Commissioner - Article 1 subpara 9 of the act amending the Constitutional Tribunal Act should be inspected from the point of view of its conformity with the principle of proper legislation resulting from Article 2 of the Constitution, which enacts a warrant for introducing legal provisions which make the regulations consistent and which can be rationally explained.

Moreover, in the case of examining the conformity of an act with the Constitution by the Constitutional Tribunal under preventive control (Article 122, para 3 of the Constitution), the lack of a ruling will cause the entire act passed by the parliament to not be able to enter into force. This leads to the conclusion that the Article 1 subpara 9 of the act amending the Constitutional Tribunal Act is also incompatible with Article 188 of the Constitution, as in certain conditions it can lead to the Constitutional Tribunal abandoning the implementation of its basic constitutional function.

By making changes to the adjudication process, the legislator must also respect the constitutional rights of individuals, especially the constitutional right to a fair trial (Article 45 para 1 of the Constitution). In accordance with this principle, everyone is entitled to a fair and public trial without undue delay by a competent, independent and impartial court. In the context of the Constitutional Tribunal, the implementation of this right should be seen primarily through the legal questions directed by courts. From the point of view of the standard set out by Article 45 para 1 of the Constitution, following the decision of the legislator, these matters will not be recognised by the courts without undue delay. This is supported by the complaint that Article 1 subpara 9 of the act amending the Constitutional Tribunal Act is also inconsistent with Article 45 para 1 of the Constitution, as well as with Article 47 of the Charter of Fundamental Rights of the European Union.

Inconsistency of Article 1 para 10 of the act amending the Constitutional Tribunal Act with the principle of proper legislation stemming from Article 2 of the Constitution, Article 45 para 1 of the Constitution, as well as Article 47 of the EU Charter of Fundamental Rights

In accordance with the wording of para 2 added to article 80 of the Constitutional Tribunal Act, the introduced rule of examining complains in order of receipt by the Constitutional Tribunal concerns applications, and does not apply to constitutional complaints and legal questions. Apparently, these remedies may thus be recognised by the Constitutional Tribunal with disregard to the order of receipt.  However, the legislator has also linked the date of hearings (behind closed doors), where applications are recognised not with the order in which those applications are received by the Constitutional Tribunal, but with the order of receiving cases (therefore – also constitutional complaints and legal questions) by the Tribunal. It is this internal contradiction itself, contained in Article 80 para 2, added by Article 1 subpara 10 of the act amending the Constitutional Tribunal Act that justifies the alleged infringement of the principles of proper legislation.

Regardless, it must be said that a solution involving the consideration of cases by the Constitutional Tribunal according to their order of receipt is a dysfunctional solution. The level of complexity of issues raised before the Constitutional Tribunal, as well as the legal problems related to these matters, is diverse. In practice, even if the panel is ready to issue a ruling on the merits, it will have to wait until the hearing is designated in accordance with the rule contained in the amended Article 80 para 2 of the Constitutional Tribunal Act.

Finally, it should be noted that the amended Article 80 para 2 of the Constitutional Tribunal Act requires only to set a date for hearings or closed sessions according to the order of receipt. Therefore, this provision can be used in such a way as to set a date immediately after the Constitutional Tribunal receives a case, and then postpone it. By formally abiding the rule contained in that provision, the Tribunal will be able to deliver decisions out-of-order.
The failure to keep the obligation of establishing such procedural rules, on part of the legislator, which – due to pending legal proceedings – will enable efficient recognition of legal questions directed to the Constitutional Tribunal from courts must be considered to be in conflict with Article 45 para 1 of the Constitution, which guarantees the right to hear a case without undue delay, as well as Article 47 of the Charter of Fundamental Rights of the European Union.

Inconsistency of Article 1 subpara 12 of the act amending the Constitutional Tribunal Act with the principle of proper legislation stemming from Article 2 of the Constitution, Article 45 para 1 of the Constitution, as well as Article 47 of the EU Charter of Fundamental Rights

In accordance with the new wording of Article 87 para 2 of the Constitutional Tribunal Act, a hearing – in principle – cannot take place earlier than after the expiry of 3 months from the date of delivery of notices on the its date, and in cases adjudicated in full court – after 6 months.

Since the proceedings before the Constitutional Tribunal take place in accordance with the principle of written form, the question arises, what purpose is served by a legal regulation providing for terms of hearings so distant from the notification of the parties. Each of the parties to the proceedings knows, after all, not only their own arguments and position in the case, but also the arguments and positions of other participants of the proceedings presented and delivered to them by the Constitutional Tribunal in writing.
 A simple reading of these provisions leads to a fairly obvious conclusion that their sole purpose is to extend the resolving of matters pending before the Constitutional Tribunal.
In fact, the legislator is pursuing a goal, which is contrary to the essence of the democratic rule of law referred to in Article 2 of the Constitution, involving the deprivation of efficiency of a constitutional body.

In relation to Article 1 subpara 12 of the act amending the Constitutional Tribunal Act, the allegations made in relation to other provisions of the amendment, namely, the infringement of the right to a fair trial (Article 45 para 1 of the Constitution) and the right to be tried within reasonable time (Article 47 of the EU CFR). Even after shortening the statutory deadlines, as permitted under Article 1 para 2a, they will continue to be several times longer than the previous ones.

Inconsistency of Article 1 subpara 14 of the act amending the Constitutional Tribunal Act with Article 189 and Article 190 para 5 of the Constitution.

In accordance with the new wording of the Constitutional Tribunal Act, the rulings of the Tribunal are given in full court, by a majority of 2/3 votes. This solution, in the Commissioner's assessment is contrary to Article 190 para 5 of the Constitution, according to which rulings are given by a majority. It has to be considered that
Article 190 para 5 of the Constitution contains a complete regulation, which means that it is unacceptable to correct the decisions taken by the legislator at the level of the Act.

Article 99 para 1 of the Constitutional Tribunal Act in its new version is also a completely dysfunctional provision. Full composition of the Constitutional Court is not only required to give rulings on a follow-up audit, but also in preventive judicial supervision, examining the constitutionality of acts prior to their signature and international agreements prior to their ratification. Hence the lack of the required majority of two thirds will result in the inability to take any decision. Among its practical effects, such a situation may lead to a scenario in which the lack of an adequate majority in the Constitutional Tribunal prevents the entry into force of an act adopted by the Parliament.

In addition, in accordance with Article 189 of the Constitution, the Constitutional Tribunal adjudicates disputes between central constitutional authorities of the state. These disputes are also settled in full sitting of the Constitutional Tribunal, so their resolution will require a 2/3 majority vote. The majority required by the act may therefore cause the inability to solve such a dispute of authority by the Constitutional Tribunal. This way, the constitutional obligation to settle disputes of authority by the Constitutional Tribunal will be transformed into the lack of settling disputes of authority, which remains in obvious collision with Article 189 of the Constitution.

Inconsistency of Article 1 subpara 16 of the act amending the Constitutional Tribunal Act to the extent that it repeals Article 19 and Article 20 of the Constitutional Tribunal Act with Article 173 taken in conjunction with art. 10 of the Constitution

Unlike it was until now, the legislator considered that the procedure for nominating candidates for judges of the Constitutional Tribunal should not be regulated by an Act and repealed the existing provisions in this matter. As a result, this matter is now regulated only at the level of the Rules of the Sejm.

Bearing in mind that the Constitutional Tribunal, which is a judicial authority, is a body separate and independent from other authorities, it would be expected that the matter of selecting the members of this body shall be regulated in an act of the law, and not in an internal act, which the Sejm's rules of procedure are. The selection of a judge to the Constitutional Tribunal is not purely an internal matter of the Parliament, since this person is to decide, among others, on the rights and freedoms of others In addition, the statutory material is more resistant to reckless changes, it protects the legal position and serves as the composition of a constitutional body.

In the opinion of the Commissioner, for the above reasons the Sejm's rules of procedure can not constitute the sole basis for defining the procedures for the selection of Judges, as this would lead to a breach of the principle of autonomy and independence of the Constitutional Tribunal, as well as an imbalance of powers, independence and the imbalance o authorities. This supports the allegation that Article 1 subpara 16 of the act amending the Constitutional Tribunal Act, in so far as it repeals Article 19 and Article 20 of the Constitutional Tribunal Act is incompatible with Article 173 in conjunction with Article 10 of the Constitution.

Inconsistency of Article 2 of the act amending the Constitutional Tribunal Act with the principle of correct legislation stemming from Article 2 of the Constitution, Article 45 para 1 of the Constitution, as well as Article 47 of the EU Charter of Fundamental Rights

In the Commissioner's opinion, Article 2 of the act amending the Constitutional Tribunal is characterised by unique legislative incompetence. The literal wording of this provision leads to the conclusion that the proceedings in matters regulated by it are not governed on the basis of the Constitutional Tribunal Act of 25 June 2015, but exclusively "in accordance with principles set out in this act", therefore only in accordance with the principles set out in the amending act. In practice, in accordance with the will of the legislator explicitly stated in the amending act it is not possible to conduct proceedings at all. The relevant procedural rules, which condition the possibility of conducting proceedings, are located in the amended act, and not in the amending act. Therefore, Article 2 para 1 of the act amending the Constitutional Tribunal Act in practice leads to a paralysis of those proceedings, in which the President of the Tribunal has not notified the participants on the initiation of proceedings prior to the entry into force of this act.

Article 2 para 2 of the act amending the Constitutional Tribunal Act does not provide a clear answer, whether it concerns proceedings instituted prior to and pending the entry into force of the act, where, prior to its entry into force, notices of the hearing date have been delivered to the participants, or proceedings instituted prior to and pending the entry into force of this act, where a notice of the hearing shall be served after its entry into force.

The provisions of Article 2 of the act also introduces the requirement to sit as full court in accordance with the amended regulations, lengthens the period between the notification of the parties about the date of the hearing and the hearing itself, as well as require to deal with cases according to their order of receipt in cases pending the Constitutional Tribunal. This leads to the conclusion that Article 2 of the act amending the Constitutional Tribunal Act is incompatible with the principle of correct legislation stemming from Article 2 of the Constitution, as well as Article 42 para 1 of the Constitution and Article 47 of the Charter of Fundamental Rights of the European Union.

Inconsistency of Article 5 of the act on the amendment of the Constitutional Tribunal Act with the principle of legal certainty stemming from Article 2 of the Constitution, Article 88 para 1 of the Constitution and Article 188 of the Constitution

In Article 5 of the Act amending the Constitutional Tribunal Act adopted a unique solution involving the introduction of this act into force without any vacatio legis. Such a decision entails a need for justification, is lacking in the case of this act, that such a solution is supported by an important interest of the state, and proof that the introduction of this act into force in such a way shall not be prevented by the principle of the democratic rule of law.

Since the basic idea (clearly expressed in the text of the proposed regulations), which became the basis for the adoption of the Act amending the Constitutional Tribunal Act, de facto aims to paralyse the work of a constitutional body, then it cannot be said that such an entry into force is supplemented by an important interest of the state or the principle of democratic rule of law. The only aim which the legislator pursued by introducing the amendment to the Act on the Constitutional Tribunal without an appropriate adjustment period was to prevent the examination of its conformity with the Constitution during the vacatio legis. This goal is therefore to circumvent the Constitution and it cannot be legitimized in any way. The implementation of this objective through the entry into force of the amendment on the date of its publication in the Journal of Laws constitutes a violation of Article 188 of the Constitution.