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New Constitutional Tribunal Act – Helsinki Committee and HFHR issue position statement

On 21st July, the Sejm has passed the new Constitutional Tribunal Act. The law now awaits the President’s signature. “The new Constitutional Tribunal Act betrays the trias politica principle and paves the way towards a constitutionally unrestricted dictatorship of the parliamentary majority”, reads the position statement of the Helsinki Committee in Poland and the Board of the Helsinki Foundation for Human Rights.

Under the new Act, cases will be assigned to all judges appointed by the Sejm and sworn in by the President. In practice, this means that the three judges appointed in December 2015 to fill in already occupied posts on the Tribunal’s bench are expected to take on their judicial roles.

Cases are to be heard on a first-come, first-serve basis, subject to a number of exceptions established in the Act. For instance, if a case relates to an application for preventive constitutional review, an application for the constitutional review of the Constitutional Tribunal Act or an application for the constitutional review of a budget law, the President of the Constitutional Tribunal may assign a hearing date irrespective of the application’s filing date.

The Act introduced a new measure known as the “blocking mechanism”. Pursuant to the new law, the Tribunal issues rulings following in-camera deliberations. If during deliberations held in a case that should be decided by the Tribunal sitting en banc at least four judges object against the proposed resolution, deliberations will be adjourned by three months. Upon reconvening, the objecting judges should present a joint proposal of the ruling. If the second round of deliberations also results in at least four judges objecting, deliberations will be adjourned by another three months. After this period passes, judges reconvene once again and the ruling is put to a vote.

Under the new law, all judgments of the Constitutional Tribunal issued from 10 March to 30 June are to be published. On 9 March, the Constitutional Tribunal entered the judgment in which it held that the amendment to the Constitutional Tribunal Act from December 2015 was contrary to the Constitution in its entirety. Since that day, the government has been withholding the publication of this judgment.

The signatories of the position statement underscore that the new Act will paralyse the works of the Constitutional Tribunal.

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