A tool of the government. The functioning of the Polish Constitutional Court in 2016-2021

Helsinki Foundation for Human Rights published a report on the functioning of the Constitutional Court. The report describes the work of the Constitutional Court in years 2016-2021.  

The role of the Constitutional Court  

Before 2017, the Constitutional Court was a crucial element of the human rights protection system in Poland. The Court was the only body entitled to examine the compatibility of laws with the Constitution. Decisions issued by the Constitutional Court used to have a decisive impact on fundamental rights protection and the development of standards of a democratic state.  

The constitutional crisis in Poland 

The constitutional crisis in Poland resulted directly from legislative changes regarding the functioning of the Constitutional Court and the illegal appointment of 3 new judges of the Constitutional Court. Over the past six years, the Sejm has adopted seven new laws or amendments to the Act on the Constitutional Court. The vast majority of them sought to take political control over the Court and resulted in a gradual decrease of independence and impartiality of the Constitutional Court.  

Unlawful appointment of judges 

One of the most far-reaching changes in the functioning of the Court concerns the process of appointing Constitutional Court’s judges. Due to the ruling majority decision to ignore the Constitutional Court judgment of 3 December 2015, the Parliament appointed three persons to the Court without a valid legal basis.  

The shortcomings of this process lead to a violation of the party’s right to have their case examined by an independent court established in accordance with law and resulted in ECHR judgment founding Poland to violate art. 6 of Convention. Since 2017, persons elected to the Constitutional Court without a legal basis took part in issuing more than 300 judgments. 

Loyal to the ruling majority 

In the years 2010–2016, deputies and senators brought 79 cases to the Constitutional Court, of which only 3 were initiated by politicians of the then ruling party. This has significantly changed in 2017. Since that moment, the number of cases initiated before the Constitutional Court by the representatives of the ruling majority has fundamentally increased, to the overall number of 20 cases. The study conducted by the HFHR revealed the vast majority of those cases were recognized faster than any other cases brought to the Constitutional Court.   

Moreover, the jurisprudence of the Constitutional Court has begun to be used to rubber-stamp the most controversial changes introduced in the state system by the ruling majority. The Constitutional Court approved the most controversial changes in the law concerning the justice system, as well as the regulations directly impacting members of the ruling party, e.g. the limits of the presidential pardon. In addition, in the last months, a tendency to use the Constitutional Court to resolve controversial issues and circumvent public resistance might be observed.  

The report “Tool in the hands of the government. The functioning of the Constitutional Court in 2016-2021. ” is the HFHR’s third report documenting the work of the Constitutional Court.  

Download the report

Related topics:

HFHR’s report: The Time of Trial. How do changes in justice system affect Polish judges?

The constitutional crisis in Poland 2015-2016