HFHR reviews draft laws on Constitutional Tribunal

The HFHR has prepared an opinion on the three draft amendments to the Constitutional Tribunal Act that are currently debated in the Sejm.Two proposals, the draft submitted by Law and Justice (Sejm Paper No. 558), and the draft presented by a group of citizens (Sejm Paper No. 550), seek to introduce a brand new Constitutional Tribunal Act. The third bill, presented by the Polish People’s Party deputies, modifies a number of the provisions of the currently applicable Constitutional Tribunal Act of 25 June 2015.

“What we are dealing with is the fourth attempt at amending the Constitutional Tribunal Act undertaken in recent months. Obviously, it is impossible not to perceive the proposed laws from the perspective of the Tribunal’s jurisprudence influenced by previous amendments; also, in assessing the new proposals, one should ask whether they follow the recommendations given by the Venice Commission”, explains the HFHR lawyer Marcin Wolny.

According to the HFHR only one draft, namely that submitted by citizens, has the potential to be a step forward towards the resolution of the current constitutional crisis. This proposal strives to limit the executive’s influence on the constitutional position of the Tribunal. However, the Helsinki Foundation contends that the mechanism of electing Constitutional Tribunal’s judges by a qualified majority of votes proposed in the citizens’ draft is unconstitutional.

“The two remaining proposals give no hope for resolving the constitutional crisis”, Mr Wolny explains. The first of the two, submitted by the Polish People’s Party, includes measures that, by and large, are clearly unconstitutional. An example of these is the possibility of requesting a re-examination of a case by the Constitutional Tribunal or the rule requesting the mandatory retirement of the judges elected in October and December 2015.

The draft presented by Law and Justice introduces an array of regulations that subordinate Poland’s constitutional court to the executive branch. It provides, among other things, that the Constitutional Tribunal should hear cases sitting en banc at every request of the President of Poland or the Prosecutor General. The draft also enables the Prosecutor General to delay proceedings pending before the Tribunal, by stipulating that the absence of the Prosecutor General results in the automatic adjournment of a hearing. The Law and Justice’s draft also proposes other controversial measures such as the requirement of the Sejm’s consent to the termination of a judge’s term of office, the rule of processing cases in the order of their submission, or the provision introducing a two-third majority threshold in voting over certain categories of cases. Another problem identified by the HFHR is the limitation of the Commissioner for Human Rights’ ability to join proceedings before the Constitutional Tribunal. Pursuant to the draft, the CHR would be able to join only the proceedings initiated by a constitutional complaint.

“On the whole, given all these concerns, it is very difficult to agree with the draft’s proposers who claim that it implements the recommendations of the Venice Commission”, concludes Mr Wolny.