HFHR appeals in proceedings regarding refusal to publish Constitutional Tribunal’s judgment

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.