Letter to Venice Commission on changes to Constitutional Tribunal

In early December, a coalition of nine organisations sent a letter to the Council of Europe’s European Commission for Democracy through Law (“Venice Commission”). The letter noted the recent developments concerning the status and composition of the Polish Constitutional Tribunal.

The Venice Commission is an advisory body to the Council of Europe whose members are experts in constitutional law and policy. The Commission’s work includes presenting opinions on draft laws and statutes adopted in states of the Council of Europe, and especially those undergoing a constitutional transition. On many occasions, the Commission presented its opinions in matters concerning individual states (such as Ukraine or Hungary) and explored certain thematic areas (for instance, public supervision of security services).

“The provision of the Constitutional Tribunal Act that enabled the previous Parliament to appoint five judges is most likely unconstitutional. However, the actions taken by the new Sejm in order to invalidate effects of the law violate fundamental principles enshrined in the Constitution, and in particular the principle of a democratic state ruled by law”, reads the statement.

The letter sent to the Venice Commission presents the manner in which subsequent changes to the Constitutional Tribunal’s composition were made. It points to a number of crucial considerations resulting from the changes, including the question of whether the President could legally refrain from taking the affirmation of the judges appointed in October 2015 whose terms started in November 2015 and the question of whether the Sejm has the power to re-elect judges contrary to the provisions of a law, solely on the basis of the Sejm’s internal regulations.

The letter also discusses procedural aspects of the legislative works on the amendment to the Constitutional Tribunal Act enacted by the Parliament in November 2015 Authors of the letter express serious concerns over the legitimacy of such a legislative action, pointing to a very short time in which the amendment was passed, the absence of any consultations, the legislators’ failure to consult experts in constitutional law, and the alleged violation of the independence of the judiciary.

“The ongoing political debate and legislative action taken by the Sejm aim to decrease social confidence in the Tribunal”, reads the statement of the non-governmental organisations.

The letter to the Venice Commission was signed by nine organisations: the Helsinki Foundation for Human Rights, Polish Bar Association, Institute for Law and Society INPRIS, Centre for Civic Education, Institute of Public Affairs, Panoptykon Foundation, Stefan Batory Foundation, Forum of Civic Development and Citizens Network Watchdog Poland.

The letter to the Venice Commission may be read here.