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HFHR’s amicus curiae brief in case before 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.

Let us remind our readers that in December 2015 the Sejm very quickly enacted an amendment to the Constitutional Tribunal Act. The amendment introduced a number of controversial changes to the law, including the requirement that cases be processed in the order of submission, and set a the two-third majority threshold for decision-making in the Constitutional Tribunal. It also raised the number of judges sitting en banc, from 9 to 13. The HFHR warned at the stage of legislative works that then-proposed measures would paralyse the works of the Constitutional Tribunal (to find out more about this, please follow this link).

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.

In the second part of the brief, the HFHR compares the current situation of the Constitutional Tribunal to other similar constitutional crises in Europe and beyond, including those in Austria, Romania, Russia, and also in Belarus and Hungary. In the assessment of the HFHR the experiences of other countries, especially the states of Central and Eastern Europe, suggest that fast-track legislative changes that seek to decrease the significance of a constitutional court may disrupt the mechanisms of checks and balances between the branches of government.

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