New chapter of constitutional crisis in Poland

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.