Constitutional Tribunal Act – the monitoring of legislative amendments

Work on a new Act on Constitutional Tribunal is starting in the Sejm. The bill has been presented by the President of the Republic of Poland. The purpose of this Act, in accordance with the assumptions adopted by its authors, is to first and foremost increase the effectiveness of adjudication by the Tribunal.

The bill provides for increased participation of professional institutions in the procedure of election of candidates for the CT judges. These would be nominated among other things by faculties of law at universities, self-governing organisations of legal professions, or the National Council of the Judiciary of Poland. Moreover, in accordance with the bill, no active Sejm deputy or senator can become a CT judge. “These solutions fulfil the demands which have been made for years by non-governmental organisations, indicating the need to depoliticise the election of the CT judges,” says Barbara Grabowska-Moroz, a lawyer from the HFHR.

The HFHR also evaluates positively the more extensive participation of the Commissioner for Human Rights and social organisations in proceedings before the Tribunal. However, the Foundation has reservations as to the possibility of the Tribunal having more scope to hear cases at closed sessions – as stipulated in the bill. The decision to hear a case at a closed session would be one to be made by the panel adjudicating the particular case, and in the opinion of the Helsinki Foundation for Human Rights the possibility of making this decision would depend on very imprecise criteria.

“In our opinion, there is a danger that the regulations cited will result in a significant restriction of the number of cases heard during an open hearing,” judges Barbara Grabowska-Moroz, a Foundation lawyer. “Hearings of the Constitutional Tribunal open to the public build its prestige, are extremely important for the legal circles, often result in considerable interest from the media, and they attract large audiences. Which is more, the number of open hearings is not large enough during the year to noticeably affect the effectiveness of adjudication by the Tribunal,” adds Barbara Grabowska-Moroz.

The HFHR presents the first opinion concerning this project.

Proposals that candidates for CT judges should be nominated by boards of faculties of law, national governing bodies of the professional self-governing organisations of barristers, legal advisors, notaries public, suggested at an earlier stage of work, have been removed in the course of work carried out by a Sejm sub-committee.

The new bill assumes a number of changes in the procedure under which the Constitutional Tribunal operates. It also introduces among other things a regulation saying that the nomination of a candidate for a Tribunal judge shall be submitted to the Sejm Marshal no later than 3 months before the end of the Tribunal judge’s term of office.

In the opinion of the HFHR, such regulation which does not determine the earliest date for the submission of a nomination (but only the latest date) is incompliant with the Constitution. This is because it forces the selection of a CT judge by the “old Sejm”, despite the fact that the term of office of two CT judges does not lapse until December 2015, i.e. after the new Sejm, elected in Parliamentary elections of 25 October 2015, becoming constituted.

“CT judges should be appointed by the Sejm of the term of office during which the terms of office of the outgoing judges of the Constitutional Tribunal end” – we can read in the HFHR’s opinion submitted under the work conducted by the Senate committee. “It is therefore unconstitutional to permit such situations in an Act in which judges may be selected by the Sejm of another, earlier term of office,” was written in the opinion.

Despite the critique in June 2015, the Sejm of the Republic of Poland adopted a new Act on Constitutional Tribunal.

In June 2015, the critical statement is issued by the Helsinki Committee in Poland. The Committee emphasises that the Constitutional Tribunal is the primary body guarding the principle of the democratic state under the rule of law. The new regulation, however, lowers the requirements concerning professional qualifications which must be demonstrated by a candidate. In order to become a Constitutional Tribunal judge, the candidates will not be required – as they have been so far – besides the completed legal studies, to have also an academic degree or a completed training as a judge, prosecutor, barrister or legal advisor.

“The introduction of such change will result in the requirements imposed on candidates for Constitutional Tribunal judges will be significantly lower than those applicable to candidates for a Supreme Court judge or a Supreme Administrative Court judge,” warns the Helsinki Committee in Poland.

Finally, the text of the new Act stipulates that the requirements for a Constitutional Tribunal judge will be the same as for a Supreme Court judge.

In September 2015, the coalition of non-governmental organisations: HFHR, INPRIS and the Polish Section of the International Commission of Jurists starts to monitor the elections of judges to the CT.

The coalition of the organisations has been conducting a similar monitoring since 2006. All current CT judges have been appointed in elections monitored by the coalition. From the beginning of the monitoring it was emphasised that Parliamentary procedures restrict the possibility of conducting a debate on the candidates proposed.

The coalition monitoring the election of Constitutional Tribunal judges undertook to organise a meeting with candidates in October 2015. This was connected with previous appeals concerning the election process, first and foremost – the lack of information about candidates. The coalition issued a statement in which it pointed out that it had already appealed twice to Deputies and the Sejm Marshal to publish names of candidates for judges. The purpose of this was to avoid a situation in which the public opinion would have just several days to get to know profiles of these persons and the progress of their professional careers. However, none of the candidates turned up at the meeting organised by the coalition of non-governmental organisations.

In October 2015, the Sejm of the previous term of office elects five new Constitutional Tribunal judges at its last session.

At the beginning of November, the term of office of three Constitutional Tribunal judges ended. Despite the fact that their successors had been elected, the President failed to swear in the newly appointed judges. The President also did not take any official position on this matter.

Therefore, the coalition of organisations monitoring the election of judges issues another position. “We would like to express our deep concern at the fact that the President of the Republic of Poland is suspending the conclusion of the procedure of filling the positions on the Constitutional Tribunal by newly elected judges” – we can read in the joint statement of the Helsinki Foundation of Human Rights, INPRIS and the Polish Section of the International Commission of Jurists.

In November 2015, the second statement connected with events around the CT is issued by the Helsinki Committee in Poland. “In connection with actions undertaken with regard to the Constitutional Tribunal, the Helsinki Committee in Poland expresses its highest concern at the situation in which the law is treated instrumentally in ongoing political conflict, and the proper operation of institutions upholding the law, such as the Constitutional Tribunal, is disrupted through manipulations concerning their composition” – can be read in the statement by members of the Committee.

During the first session of the newly elected Sejm, a bill amending the Act on Constitutional Tribunal was submitted (Sejm Publication No 6). It was withdrawn on the following day, but after a few days it was resubmitted to the Marshal’s staff in a similar version (Sejm Publication No 12). In the light of the bill, in the case of CT judges whose term of office ends in 2015, the deadline for notification of candidates for their successors is 7 days from the amendment coming into effect. This means that the five judges elected at the end of the previous term of office of the Sejm will not take their positions. Additionally, in accordance with the bill, the term of office of the current: President and Vice-President of the CT would terminate 3 months after the amendment coming into effect.

In connection with the first bill amending the Act on Constitutional Tribunal (Sejm Publication No 6), the coalition of non-governmental organisations issues another statement.

“We are witnessing political acts which cause our concern. In particular, this concerns the bill amending the Act on CT submitted on 12 November 2015 [and resubmitted after corrections on 17 November – editor’s note] to the Marshal’s staff. The preliminary evaluation of the project indicates that it may constitute a threat to the independence of the Tribunal from other branches of power, which would be highly reprehensible” – can be read in the joint statement of the Helsinki Foundation for Human Rights, INPRIS and the Polish Section of the International Commission of Jurists.

“The coming into force of the Act will undermine the functioning of the most important judicial body may have a negative impact on the level of protection of rights and freedoms in Poland” – states the appeal of the HFHR to the President of the Republic of Poland Andrzej Duda.

The Sejm and the Senate adopted the amendment of the Act on Constitutional Tribunal. The amendment was adopted in just three days. According to the HFHR, the express pace of work and lack of any social consultations or expert opinions concerning charges of lack of compliance of the amendment with the Constitution of the Republic of Poland violate the fundamental principles of reliable process of legislation in a democratic state under the rule of law.

The new Act introduces the principle of rotation in positions of the President and Vice-President of the Constitutional Tribunal, who from now on will be elected for three years with the possibility of re-election. At the same time, it is anticipated that the current President and Vice-President will lose their positions three months after the Act comes into force. “The principle of independence of judges and independence of the judicial power indicates that executive and legislative authorities should refrain from dismissing Presidents and Vice-Presidents of courts and tribunals. Ignoring this principle means that political bodies exert pressure on the judiciary” – can be read in the HFHR’s letter.

The new Act also sets aside the last election of 5 CT judges and appoints a new deadline for the notification of candidates for positions of judges whose term of office ends in 2015. According to the HFHR, this provision cannot have any legal consequences because the relevant provision is contained in the Act which is already in force and has been fulfilled, and the elections of judges remain in force. “Thus, it is not possible to cancel this fact on the basis of the amendment adopted” – states the HFHR in its letter to the President.

“The Constitution does not confer any competences on the legislator to invalidate the election of a Constitutional Tribunal judge by the Sejm of the previous term of office. The waiver of this rule could lead to future consequences which are difficult to predict – the Parliament of each subsequent term of office could invalidate on the basis of an Act the elections conducted by their predecessors,” warns the HFHR.

 

The Helsinki Committee in Poland has been observing the escalating crisis around the Constitutional Tribunal and the election of judges for this Tribunal with growing concern.

“The hurried adoption of the amendment of the Act on Tribunal of 25 June 2015, conducted in violation of legislation standards, not only did not resolve problems but exacerbated them. This refers in particular to the principles of shaping the composition of the Tribunal and the guarantee of its independence from the executive power” – wrote members of the Helsinki Committee in Poland.

According to the Committee members, “it is unacceptable in a state under the rule of law to resolve constitutional doubts by referring to political will and sense of popular justice. The only body competent in this respect is the Constitutional Tribunal”.

“We are currently witnessing an unprecedented attack on the Constitutional Tribunal”- wrote the Helsinki Foundation for Human Rights, the Polish Section of the International Commission of Jurists and the Institute for Law and Society in the statement issued on 30 November 2015.

In their statement, the organisations referred to the resolutions adopted by the Sejm, which rule the October resolutions on the election of CT as “devoid of legal power”.

Additionally, on 26 November 2015, the Sejm adopted an amendment to the Sejm Regulations. It stipulates that in the cases where ”other […] circumstances occur”, resulting in the need to elect a CT judge (other than those indicated in the Sejm Regulations so far), it is the Sejm Marshal that appoints a deadline for the notification of candidates for judges. “In this case we are dealing with the introduction of the possibility of electing judges on the basis of a premise not provided for in the Act on Constitutional Tribunal into the Sejm Regulations” – the organisations express their alarm.

The deadline for submission of candidates for judges was set for 1 December. “Thus, we are dealing with a situation in which a number of contradicting norms functions in the legal system, and part of them will be the subject of control by the Constitutional Tribunal in the near future, during sessions held on 3 and 9 December 2015. Contrary to what the statement of reasons of the Act of 19 November 2015, as well as the resolutions of 25 November 2015, indicates, the assessment of compliance of the legal grounds for adoption of resolutions of 8 October 2015 with the Constitution rests exclusively with the Constitutional Tribunal” – we can read in the organisations’ statement.

The organisations also referred to allegations made against the Tribunal in the recent days and describing it as a party court.

In the last few days, politicians described the Tribunal as a party court. “We protest against such definition of the role of the Tribunal and its judges. This insults all judges serving on the Tribunal so far, regardless of who submitted their candidatures. It deprives all future judges of the quality of independence. It depreciates the role of the Tribunal as the guard of compliance of the law with the Constitution” – was written in the statement.

At the beginning of December, a coalition of nine organisations sent a letter to the Venice Commission operating by the Council of Europe. The letter pointed out the recent events which took part in Poland with regard to the status and composition of the Constitutional Tribunal.

The European Commission for Democracy through Law (the so-called Venice Commission) is an advisory body of the Council of Europe, composed of expert on constitutional matters. The Commission’s activity involves issuing opinions on bills and legislative acts adopted in the member states of the Council of Europe, in particular in the states which are undergoing a system transformation. The Commission has repeatedly issued opinions, among other things in matters concerning individual states (e.g. Ukraine or Hungary), as well as dealt with thematic issues (e.g. control over special services).

“The provision of the Act on Constitutional Tribunal which allows the election of five judges by the Sejm of the previous term of office is probably incompliant with the Constitution. However, actions aimed at setting aside its consequences, carried out by the Sejm of the 8th term of office, infringe the fundamental constitutional principles, in particular the principle of the democratic state under the rule of law” – can be read in the position.

The letter addressed to the Venice Commission presents the shape and method of implementing subsequent changes concerning the composition of the Constitutional Tribunal. A number of fundamental issues, within which the changes introduced are connected, have been indicated, including whether the President of the Republic of Poland is authorised not swear in the judges elected in October 2015, whose term of office started in November 2015, and whether the Sejm may re-elect judges contrary to the provisions of the Act, only on the basis of the Sejm Regulations, i.e. an internal legal act.

The procedure of processing the amendment of the Act on Constitutional Tribunal adopted by the Parliament in November 2015 was also presented. The very short time in which the Act was adopted, the absence of any consultations, failure to seek the opinion of experts in constitutional law, combined with allegations concerning infringement of independence of the judicature, give rise to serious doubts as to the lawfulness of legislative activities conducted this way.

“The political debate conducted, as well as legislative actions undertaken by the Sejm, aim to undermine the social trust in the Tribunal” – can be read in the position presented by non-governmental organisations.

The letter to the Venice Commission was issued by 9 entities: the Helsinki Foundation for Human Rights, Polish Bar Council, INPRIS – Institute for Law and Society, Centre for Civic Education, Institute of Public Affairs, the Panoptykon Foundation, Stefan Batory Foundation, Civic Development Forum, Watchdog Poland Civic Network.

The address to the Venice Commission may be found here.

INPRIS – Institute for Law and Society, the Helsinki Foundation for Human Rights and the Polish Section of the International Commission of Jurists are observing with concern the cases of open disregard for the judgment of the Constitutional Tribunal of 3 December 2015.

The judgment still has not been published in the Journal of Laws by the Government Legislation Centre. We are demanding that the violation of law resulting from this is eliminated immediately.

Judgments of the Constitutional Tribunal are final and public authorities are obliged to enforce them. Any other practice constitutes contradiction of the principle of the democratic state under the rule of law, whose authorities operate within the law and pursuant to the law. I constitutes an infringement of the Constitution, the observance of which constitutes the pillar of oaths made before taking a public office.

Opinions that the judgment is apparently of “historical” value find no grounding in the law currently in force, or in the conclusion of the judgment. At the moment, it is necessary for the President of the Republic of Poland to swear in three Constitutional Tribunal judges elected by the Sejm in October 2015. The compliance with the Constitution of the legal grounds for this election was finally confirmed on 3 December 2015 by the only body authorised to do so – the Constitutional Tribunal. Any delay in the enforcement of this judgment by the President of the Republic of Poland constitutes a significant constitutional tort.

Only the enforcement of the judgment of the CT of 3 December 2015 guarantees that the Tribunal will be composed of persons elected in accordance with the Act and the Constitution. The correct composition of the Tribunal is essential for the sense of lawfulness as well as effectiveness of the Tribunal’s judgments. It constitutes the condition for these judgments being accepted by general courts and on the international arena. This is why, as the Secretary General of the Council of Europe indicated, “the Tribunal’s judgment should be fully enforced now, in all of its details”.

We are stating categorically that actions aimed at depreciating the Constitutional Tribunal, which may damage its judicature determining the standard of protection of civil rights and freedoms, are extremely irresponsible.

“The Venice Commission has been observing attentively and with concern the events which are taking place in Poland” – we can read in the response of the Venice Commission to the address by 9 organisations from Poland.

“We are still hoping and expecting that the problems which have arisen may be resolved on the basis of decisions which have already been made or which are to be made by the Constitutional Tribunal” – pointed out Gianni BuquiCThio, President of the Venice Commission .

The President of the Commission also reminded the position of the Secretary General of the Council of Europe of 4 December 2015. The Secretary General had stated that “many controversies have recently arisen in Poland around the election of Constitutional Tribunal judges. It was with satisfaction that I received yesterday’s judgment of the Constitutional Tribunal [of 3 December 2015 – editor’s note], the purpose of which is to explain the situation from the legal and constitutional point of view.” The Secretary General reminded that the Tribunal’s judgment should be now fully enforced, in all of its details.

So far, the Venice Commission has not received a request from authorised bodies to issue an opinion about the situation in Poland. However, the Commission will be notified of the events taking place in Poland at the imminent plenary session on 18 to 19 December 2015.

The response of the Venice Commission may be found here.

The Monitoring Committee of the Parliamentary Assembly of the Council of Europe made a decision to send an invitation to the chairman of the Polish Delegation to take part in another meeting of the Committee in order to “exchange views on the recent events concerning the Constitutional Tribunal in Poland”.

The Monitoring Committee verifies whether states which are members of the Council of Europe fulfil their obligations arising from the membership in the organisation, including the Statute of the Council of Europe and the European Convention on Human Rights. Currently, nine member states of the Council of Europe are undergoing the monitoring procedure.

Another meeting of the Monitoring Committee will be held on 25 – 29 January 2016 in Strasbourg.

At the beginning of the week (14 December), the President of the Parliamentary Assembly of the Council of Europe Anne Brasseur, in her speech during the meeting of the Assembly Office, referred to current situation in Poland. She expressed her concern at the escalating conflict around the Constitutional Tribunal.

In the evening of 15 December another draft amendment to the Constitutional Tribunal Act was submitted in the Parliament. The Constitutional Tribunal ruled that the two previous amendments enacted in 2015 were partially unconstitutional.

The HFHR objects to the hasty conduct of the legislative works on important constitutional regulations. Moreover, the Helsinki Foundation thinks that the real purpose of the new law is to prevent the Constitutional Tribunal from discharging its constitutional duties.

The draft of the amendment has not been consulted with members of the public, experts and legal professionals. In his public address of 3 December 2015, President Andrzej Duda announced that a discussion on the Constitutional Tribunal’s work would be held among a broad community of experts. However, statements of representatives of the parliamentary majority suggest that a rapid legislative procedure will again be used in the works on the recent bill. “The draft law does not address any urgent matters that would justify the omission of consultations or such a hasty conduct of legislative works on a crucial constitutional issue”, says Barbara Grabowska-Moroz, a lawyer working with the HFHR.

Furthermore, the HFHR’s opinion emphasises that the introduction of the requirement of qualified majority of two-thirds of votes, which would apply to the procedure of adopting the Tribunal’s resolutions, is an arbitrary move. The actual purpose of the amendment is to prevent the Polish constitutional court in its current composition from adopting en-banc resolutions. Yet the bill’s sponsors argue that the en-banc ruling requirement is the consequence of the need for an in-depth and thorough examination of constitutional problems that have a crucial impact on the public good.

Under the proposed law, it would be impossible for the Tribunal to issue a decision supported by less than the qualified majority of its judges. This means that the operations of Poland’s constitutional court will be blocked.

The draft amendment to the Constitutional Tribunal Act also expands the composition of the Tribunal’s full adjudication panel, which is to include 13 instead of 9 judges. The bill also extends the requirement of en-banc ruling to the majority of case types. According to the HFHR, this will lead to the situation in which the Tribunal effectively loses its ability to adjudicate. The above requirements will result in the excessive length of the proceedings that involve individuals because more than 90 per cent of the cases heard by the Constitutional Tribunal are constitutional complaints and questions of law submitted by common courts. This will adversely affect the constitutional guarantee of the right to a court while the crippling of TK works is a stand-alone violation of citizens’ right to file constitutional complaints.

The latest amendment proposal also provides that any cases already heard by a panel of less than 13 judges will have to be re-opened. If this rule becomes law, about 100 proceedings will need to be re-instituted, which may paralyse the administrative and judicial works of the Constitutional Tribunal.

The Human Rights Commissioner, National Council of the Judiciary, First President of the Supreme Court and two groups of the Sejm deputies have contested the amendment to the Constitutional Tribunal Act enacted in December 2015. The HFHR has filed an amicus curiae brief in this constitutional review case, which is expected to be heard by the Tribunal on 8 and 9 March 2016.

In this latest brief, the Foundation presents a summary of the works on the amendment. The HFHR emphasises that the amendment to the Constitutional Tribunal Act is one of the laws that govern a key element of the country’s constitutional system. If such a hasty lawmaking procedure is to be adopted for similar laws in future, this will “constitute a threat to the stability of the constitutional system, and may amount to a violation of the principle of a democratic state ruled by law resulting from e.g. the fact that too short lawmaking process (laws are passed without the vacatio legis period) may threaten to the certainty of the applicable law”, reads the brief.

The Constitutional Tribunal will hear the complaints concerning the December amendment to the Constitutional Tribunal Act. The HFHR in the amicus curiae brief discussed also the following points:

Adoption of the Act
The amendment to the Constitutional Tribunal Act was adopted very quickly – in less than two weeks. Such a rushed legislative process led to many irregularities – the lawmakers had failed to obtain any opinions of experts, the concerns of the Legislation Office of the Sejm had been ignored and important corrections had been presented during the hearings of a Sejm committee. In the opinion of the HFHR, significant number of the modifications introduced during the first and second readings changed the bill to an extent that might have resulted in a violation of the constitutional rule of three readings.

Rules of procedure before the Constitutional Tribunal
According to the amended Act, the Constitutional Tribunal is supposed to hear the majority of cases sitting en banc (that is in a panel of at least 13 judges) while decisions are to be taken by a two-thirds majority. In some cases, the Constitutional Tribunal will be able to decide cases in a smaller, seven-judge panel. Moreover, all cases will have to be processed in the order of submission and not earlier than after three or six months from the date of notice given to the parties. According to the HFHR, these changes could paralyse the works of the Constitutional Tribunal.

Disciplinary proceedings against judges
The amendment introduced the rule that disciplinary proceedings can be initiated at the request of the Minister of Justice or the President of the Republic of Poland. A decision on a judge’s removal from office will be made by the Sejm, at the request of the General Assembly of the Judges of the Constitutional Tribunal, and not – as it was until now – of the Disciplinary Court of the Constitutional Tribunal. According to the HFHR, this may enable politicians to put pressure on the Constitutional Tribunal judges, which would be tantamount to a violation of the principle of the Tribunal’s independence.

Real purpose of the new law
In the opinion of the HFHR, the nature of the changes suggests that the real purpose behind the new law was not to facilitate the work of the Constitutional Tribunal, but to increase the legislative branch’ influence on the Polish top legislative court. The language of the amended Act suggests an intention to slow down the proceedings before the Constitutional Tribunal so that the Tribunal is unable to quickly and effectively respond to enactments of unconstitutional laws.

Constitutional crises around the world
In other countries authorities have also tried to interfere with the powers of constitutional courts. This was supposed to freeze the courts’ operations and block the constitutional review of controversial laws. Experience shows that such activities should be assessed negatively. They may lead to major constitutional crises and disrupt the balance of powers.

On 8 and 9 March, the Constitutional Tribunal heard the complaints – submitted by the Commissioner for Human Rights, President of the Supreme Court, National Council of Judiciary and two groups of the Sejm deputies – against the amendment to the Constitutional Tribunal Act passed in December 2015. The controversial law, which introduced regulations intended to paralyse Poland’s top legislative court, was found unconstitutional in its entirety.

Although judgments of the Constitutional Tribunal are final and legally binding, representatives of the government have already declared they would not publish the judgment in the Journal of Laws.

“In the wake of the Tribunal’s judgment and declarations made by the government’s representatives we can say that the constitutional crisis in Poland, which has been ongoing for several months, has just escalated”, says Danuta Przywara, President of the Helsinki Foundation for Human Rights.

On 9 March, the Tribunal issued the judgment sitting in a panel of 12 judges. The top legislative court held that it may neither operate nor adjudicate on the basis of laws whose constitutionality raise significant doubts. According to the Tribunal, this would threaten the effective adjudication of cases already present on its docket.

The Constitutional Tribunal ruled that the amendment to the Constitutional Tribunal Act is contrary to the Constitution in its entirety. Above all, the legislative procedure applied to the enactment of the amendments was declared unconstitutional. The Tribunal ruled that this procedure was so hasty that in practice prevented a review of the amendment’s draft despite numerous concerns over it likely being unconstitutional. Also the legal rule that enabled the amendment to enter into force upon publication was found contrary to the Constitution. Moreover, the Constitutional Tribunal held that the newly introduced attendance quorum that required it to decide certain cases in full bench led to delays of proceedings.

Also the requirement that cases be heard in accordance with the sequence of their registered was considered unconstitutional. The same is true in respect of the provision that established the rule that a hearing in open court could not be held earlier than after three or six months from the date when the parties are notified of the hearing. The amendment’s transitional provisions, which forced the application of the new rules to “pending cases” registered by the Tribunal before the amendment’s effective date, were also declared unconstitutional.

The changes that enabled the Minister of Justice to initiate disciplinary proceedings against the Tribunal’s judges and those that empowered the Sejm to dismiss a judge upon the motion of the Tribunal’s General Assembly, were declared contrary to the principle of judicial separation.

Last week, also the Venice Commission issued an opinion on the amendment to the Constitutional Tribunal Act. The Commission critically commented on all the measures introduced by the amendment. In the opinion of Venice Commission, they will lead to either a slowdown or paralysis of the Constitutional Tribunal’s works, which is unacceptable in light of the European standards.

According to the HFHR, the ongoing constitutional crisis poses a serious threat to the rule of law in Poland. The refusal to recognise the Constitutional Tribunal’s judgment aims at undermining the constitutional court’s position within the constitutional system, which in turn may result in a major rift in the country’s legal system.

The Helsinki Foundation has appealed against the decision of a prosecutor delegated to the Regional Prosecutor’s Office of Warszawa-Praga in Warsaw, which refused the initiation of preparatory proceedings in the case of the government’s failure to publish the judgment of the Constitutional Tribunal of 9 March 2016 (case no. K 47/15).

The prosecutor wrote in the decision that the actions of the Prime Minister did not satisfy the statutory features of the offence of failing to discharge one’s duties. According to the prosecutor’s office, the absence of publication did not cause any detriment to a public or private interest.

The HFHR disagrees with this conclusion. In its interlocutory appeal against the decision, the Foundation opposed the prosecutor office’s line of argument, alleging that the decision had violated at least several provisions of the Code of Criminal Procedure, including the principles of free evaluation of evidence and objectivity.

The HFHR argued that the refusal of publication of the Constitutional Tribunal’s ruling caused a constitutional, political, economic and publicity loss. “This behaviour of the authorities directly results in a significant risk of the emergence of a legal dualism, in which some bodies would abide by the Tribunal’s rulings while other would not recognise them. This directly affects the legal safety of individuals”, argues Marcin Wolny, an author or the interlocutory appeal.

The other consequence of non-publication is a likely increase in the costs of public debt servicing, which is suggested by recent moves of rating agencies. “Furthermore, the claim that the failure to publish the Constitutional Tribunal’s judgment inflicts detriment to a legitimate public interest has also been acknowledged by actions of the prosecutor’s office connected with the “suspension” of one of the Tribunal’s December judgments.  In the decision concluding the proceedings, the prosecutor’s office resolved that a delay in publication resulted in detriment to a public interest.  Considering the above, it is all the more arguable that detriment resulted from the open refusal of publication”, Mr Wolny adds.

In the interlocutory appeal, the HFHR also explains why the ruling of 9 March 2016 must be considered a judgment of the Constitutional Tribunal that is subject to mandatory publication.  “It is difficult to consider that the judgement is non-existent or unpublishable given the fact that it has no defects that would justify such conclusions”, explains Marcin Szwed, a lawyer working with the HFHR. “In particular, the Tribunal’s decision not to apply the reviewed laws cannot be considered such a defect. Firstly, the simultaneous review and application of same provisions of law would be illogical; secondly, the Tribunal’s decision not to apply the reviewed provisions and make a direct reference to the Constitution does not invalidate the judgement”, Mr Szwed adds.

The HFHR also argued that the prosecutor’s office had used an incorrect mode of case examination. “In order to determine the facts of the case the prosecutor’s office should have launch preparatory proceedings and at least hear the Prime Minister as a witness”, Marcin Wolny adds. In the opinion of the HFHR only this would enable an assessment of whether the prosecutor issued a correct decision. Otherwise, any findings made by law enforcement authorities must be considered premature.

The Helsinki Foundation has prepared another legal opinion on the Constitutional Tribunal Bill. The HFHR argues that the currently debated draft law not only is likely to paralyse the Constitutional Tribunal, but also negates the achievements of the 27 years of Polish political transition because it undermines the principle of a democratic state ruled by law and the principle of judicial independence.

“Works in a subcommittee and the Committee for Justice and Human Rights have clearly proven that the proposed changes most certainly are not a compromise between the three alternative drafts of the new law of the Constitutional Tribunal presented to the Sejm”, says Marcin Wolny, a member of the HFHR legal team.

The Committee worked exclusively on the original draft prepared by the Law and Justice parliamentary grouping. Once again, the Committee failed to take into account any of the opinions which argued that the draft is unconstitutional. Such opinions were presented by the Legislation Office of the Sejm, parliamentary opposition and non-governmental organisations.

The crucial modification introduced to the draft law is the new content of Article 68, which enables four constitutional judges to express an objection to the proposed wording of the Tribunal’s decision during deliberations of the Tribunal sitting en banc. This is allowed only in cases particularly important for the constitutional system of the state or the public order. However, in practice these two concepts will always ultimately be interpreted by the Constitutional Tribunal’s judges, which most likely will result in them invoking Article 68 whenever possible.

If an objection is lodged, deliberations are automatically adjourned for three months. Upon the passage of three months, deliberations are resumed but four judges may submit another objection: this time, apart from another three-month adjournment, an objection triggers the qualified two-thirds majority requirement for voting in a given case. If no qualified majority is secured, proceedings pending before the Constitutional Tribunal are discontinued.

In effect, it is possible that the Tribunal will in practice find itself in a limbo, unable to perform its constitutional role. This will lead to the elimination of a mechanism designed to protect constitutional rights and freedoms of individuals, which will directly affect the exercise of such rights and freedoms.

In its opinion, the HFHR also notes that the draft law does not follow the recommendations included in the opinion of the Venice Commission issued in March: among other things the newly proposed law keeps the provision that obliges the Constitutional Tribunal to hear cases in accordance with the first come, first serve rule. The draft law also introduces intertemporal rules according to which all cases in which pleadings do not need to be adjusted to new requirements and which have not been resolved by the Tribunal before the new law’s effective date should be decided within a year from the law’s entry into force. Remaining cases in which pleadings need to be adjusted to new requirements will be suspended for six months.

“All these factors lead the HFHR to believe that the discussed proposal constitutes yet another attempt at subjugating the Constitutional Tribunal to the executive. At the same time, the new law introduces mechanism that enable to prevent the Tribunal from the exercise its constitutional role. For these reasons the HFHR calls on the Polish Sejm to refrain from enacting the law in question”, the opinion reads.

On Saturday, 30 July, President Andrzej Duda signed the new Constitutional Tribunal Act into law amid significant backlash from the legal profession and non-governmental organisations. After the Act was passed in the Sejm, members of the Helsinki Committee in Poland joined the HFHR Board and issued a position statement in which they stated that the new piece of legislation “betrays the trias politica principle and paves the way towards a constitutionally unrestricted dictatorship of the parliamentary majority”.

Let us remind our readers that in late April a group of Law and Justice deputies tabled a draft of the new law on the Constitutional Tribunal in the Sejm. In June 2016 works started on the Law and Justice bill, another deputy-sponsored bill and a bill submitted by a group of citizens. Ultimately, the Sejm worked mainly on the draft law proposed by the ruling majority.

The new Constitutional Tribunal Act introduces a number of provisions that may paralyse the Constitutional Tribunal’s works. The most controversial of such provisions is the article that introduces the so-called “blocking mechanism”. During deliberations of the Tribunal’s full panel, four judges may raise objections against a proposed ruling, which results in a three-month adjournment of adjudication of a case. This veto mechanism may be applied again once. Other provisions state that if a case is heard by the full panel, a hearing must be adjourned if the Prosecutor General fails to appear despite having been effectively summoned.

Under the new Act, all judges appointed by the Sejm and sworn in by the President are to immediately assume their responsibilities. In practice, this means that the President of the Constitutional Tribunal will need to assign cases to the judges appointed in December 2015 to already occupied posts on the Tribunal’s bench.

The procedure of publication of judgments is also changing. Under the newly adopted law, a publication will be ordered by the Prime Minister at the motion of the President of the Constitutional Tribunal. Moreover, the Act stipulates that all judgments of the Constitutional Tribunal issued before 20 July are to be published unless they have been entered in violation of law or apply to laws that have already lost binding force. This means that the judgment of 9 March 2016, in which the Constitutional Tribunal held that the December amendment to the Constitutional Tribunal Act was unconstitutional, will remain unpublished.

Some cases that the Tribunal accepted for adjudication will be suspended. The new Act adjourn for six months the cases brought before the Constitutional Tribunal by parliamentarians, the Commissioner for Human Rights, President of the Republic, President of the Supreme Court, President of the Supreme Administrative Court, and the National Council of the Judiciary of Poland.

At the stage of legislative works, the HFHR presented two legal opinions on the Act’s proposal. The Foundation argued that the new law was “yet another attempt at subjugating the Constitutional Tribunal to the executive” and noted that “the new law introduces a mechanism that enables to prevent the Tribunal from the exercise its constitutional role. For these reasons, the HFHR called on the Polish Sejm to refrain from enacting the law in question.

The Constitutional Tribunal has ruled that the latest law on the Constitutional Tribunal (the Act of 22 July 2016) is in part unconstitutional.

The following provisions were declared contrary to the Constitution:

• the provisions obligating the President of the Constitutional Tribunal to enable the assumption of judicial duties by the three judges appointed to already occupied posts on the Tribunal’s bench,
• the provisions that allow for a selective publication of the Tribunal’s decisions, which sanction, among other things, the non-publication of the judgment of 9 March 2016,
• the provisions introducing the procedural rule that requires the Tribunal’s President to apply to the Prime Minister to have a judgment published,
• the provisions pursuant to which deliberations may be adjourned for three months if four judges object proposed adjudication of a case pending before the Constitutional Tribunal,
• the provisions that introduce the rule that cases should be heard according to the first-come, first-serve principle (this rule was named unconstitutional already during the review of the previous law on the Constitutional Tribunal),
• the provisions that necessitate an adjournment of a hearing if the Prosecutor General fails to appear despite having been properly summoned,
• the provisions obligating the Tribunal to hear a case in a full panel at the request of at least three of its judges.

Moreover, the Tribunal ruled that the transitional provisions of the contested law were also unconstitutional. For example, Poland’s constitutional court challenged the rule that all its cases should be heard within a year, and also opposed the regulations that forced it to adjust the composition of an adjudicating panel to the provisions of the new law in all commenced cases, even those in which judgments have already been drafted. Another provision named unconstitutional was that obligating the Constitutional Tribunal to suspend, for six months, all cases that fail to satisfy formal requirements.

At the same time, the Tribunal discontinued the review proceedings in respect of the procedure of the presidential appointment of the Tribunal top judge from among three candidates named by the General Assembly of the Constitutional Tribunal. The Tribunal held that applications requesting the review of the appointment procedure had been formulated too narrowly and had not covered all the material provisions, which prevented their constitutional scrutiny.

The Helsinki Foundation for Human Rights has opposed the adoption of the new law by the Sejm in a joint position statement with the Helsinki Committee in Poland. “We said in the statement that the new law betrayed the trias politica principle and paved the way towards a constitutionally unrestricted dictatorship of the parliamentary majority”, reminds Piotr Kładoczny, Secretary of the HFHR Board.

The currently applicable Constitutional Tribunal Act from June 2015 will lose its binding force on 16 August. On that day, the new Act of 22 July 2016 will become effective. However, it will not include the provisions that the Tribunal invalidated as unconstitutional in today’s judgment. With virtually all transitional provisions declared unconstitutional, the application of the new law may prove difficult.