Trybunał Konstytucyjny

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The Act of 22 December 2015 amending the Constitutional Tribunal Act K 47/15

 

On 8 March 2016 at 9 a.m. the Constitutional Tribunal (full bench) considered joined applications filed by the First President of the Supreme Court, a group of Sejm Deputies (application of 29 December 2015), a group of Sejm Deputies (application of 31 December 2015), the Polish Ombudsman, and the National Council of the Judiciary of Poland, with regard to the Act amending the Constitutional Tribunal Act.

In the judgment of 9 March 2016, the Constitutional Tribunal adjudicated that:

I

1. The Act of 22 December 2015 amending the Constitutional Tribunal Act: 

a) is inconsistent with Article 7, Article 112 and Article 119(1) of the Constitution of the Republic of Poland, as well as with the principle of appropriate legislation, arising from Article 2 of the Constitution;

b) is consistent with Article 186(1) of the Constitution;

c) is not inconsistent with Article 123(1) of the Constitution.

2. Article 1(6) of the Act of 22 December 2015 referred to in point 1, repealing Article 31(3) of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. of 2016 item 293), is inconsistent with Article 173 in conjunction with Article 10(1) of the Constitution.

3. Article 1(15) of the Act of 22 December 2015 referred to in point 1, repealing Chapter 10 of the Act of 25 June 2015 referred to in point 2, is inconsistent with Article 118(1) as well as Article 119(2) of the Constitution, as well as with Article 197 of the Constitution.

4. Article 1(16) of the Act of 22 December 2015 referred to in point 1, insofar as it repeals Article 19(1) of the Act of 25 June 2015 referred to in point 2:

a) is inconsistent with Article 112 and Article 173 in conjunction with Article 10 of the Constitution;

b) is not inconsistent with Article 197 of the Constitution.

5. Article 1(16) of the Act of 22 December 2015 referred to in point 1, insofar as it repeals Article 28(2) of the Act of 25 June 2015 referred to in point 2, is inconsistent with Article 173 in conjunction with Article 10(1) as well as Article 195(1) of the Constitution.

6. Article 1(2) of the Act of 22 December 2015 referred to in point 1 and amended Article 8(4) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 118(1) and Article 119(2) of the Constitution, as well as with Article 173 in conjunction with Article 10(1) as well as with Article 195(1) of the Constitution.

7. Article 1(3) of the Act of 22 December 2015 referred to in point 1 and amended Article 10(1) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution and Article 10 of the Constitution, as – by virtue of making it impossible for a constitutional organ of the state, i.e. the Constitutional Tribunal, to carry out its activity diligently and efficiently, as well as by undermining its independence and separateness from the other branches of government – they infringe the principles of a state ruled by law.

8. Article 1(5) of the Act of 22 December 2015 referred to in point 1 and added Article 28a of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 118(1) and Article 119(2) of the Constitution, as well as with Article 173 in conjunction with Article 10(1) as well as with Article 195(1) of the Constitution.

9. Article 1(7) of the Act of 22 December 2015 referred to in point 1 and added Article 31a of the Act of 25 June 2015 referred to in point 2:

a) are inconsistent with Article 118(1) and Article 119(2) of the Constitution, as well as with the principle of specificity of law – arising from Article 2 of the Constitution, with Article 78, Article 173 in conjunction with Article 10(1) and Article 195(1) of the Constitution;

b) are not inconsistent with Article 180(1) and (2) of the Constitution.

10. Article 1(8) of the Act of 22 December 2015 referred to in point 1, insofar as it amends Article 36(1)(4) of the Act of 25 June 2015 referred to in point 2, and amended Article 36(1)(4) of the Act of 25 June 2015 referred to in point 2:

a) are inconsistent with Article 118(1) and Article 119(2) of the Constitution, as well as with the principle of specificity of law, arising from Article 2 of the Constitution, with Article 78, Article 173 in conjunction with Article 10(1) and Article 195(1) of the Constitution;

b) are not inconsistent with Article 180(1) and (2) of the Constitution.

11. Article 1(8) of the Act of 22 December 2015 referred to in point 1, insofar as it amends Article 36(2) of the Act of 25 June 2015 referred to in point 2, and amended Article 36(2) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 118(1) and Article 119(2) of the Constitution, as well as with Article 173 in conjunction with Article 10(1) as well as with Article 195(1) of the Constitution.

12. Article 1(9) the Act of 22 December 2015 referred to in point 1, insofar as it amends Article 44(1) and (3) of the Act of 25 June 2015 referred to in point 2, and amended Article 44(1) and (3) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution, as – by virtue of making it impossible for a constitutional organ of the state, i.e. the Constitutional Tribunal, to carry out its activity diligently and efficiently, as well as by undermining its independence and separateness from the other branches of government – they infringe the principles of a state ruled by law.

13. Article 1(1) of the Act of 22 December 2015 referred to in point 1, and added Article 80(2) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution, as – by virtue of making it impossible for a constitutional organ of the state, i.e. the Constitutional Tribunal, to carry out its activity diligently and efficiently, as well as by undermining its independence and separateness from the other branches of government – they infringe the principles of a state ruled by law.

14. Article 1(12)(a) of the Act of 22 December 2015 referred to in point 1 and amended Article 87(2) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution, as – by virtue of making it impossible for a constitutional organ of the state, i.e. the Constitutional Tribunal, to carry out its activity diligently and efficiently, as well as by undermining its independence and separateness from the other branches of government – they infringe the principles of a state ruled by law.

15. Article 1(14) of the Act of 22 December 2015 referred to in point 1 and amended Article 99(1) of the Act of 25 June 2015 referred to in point 2 are inconsistent with Article 190(5) of the Constitution.

16. Article 2 of the Act of 22 December 2015 referred to in point 1

a) is inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution, as – by virtue of making it impossible for a constitutional organ of the state, i.e. the Constitutional Tribunal, to carry out its activity diligently and efficiently, as well as by undermining its independence and separateness from the other branches of government – they infringe the principles of a state ruled by law;

b) is inconsistent with Article 2, by virtue of providing for the application of the Act of 22 December 2015 to cases that were already pending before the Tribunal on the date of the entry into force of the Act.

 

17. Article 3 of the Act of 22 December 2015 referred to in point 1 is consistent with the principle of the protection of justly acquired rights and the principle of the protection of interests that are pending, which arise from Article 2 of the Constitution.

18.Article 5 of the Act of 22 December 2015 referred to in point 1:

a) is inconsistent with Article 2 and Article 188(1) of the Constitution;

b) is not inconsistent with Article 8(1) of the Constitution.

II

Article 44 (1) of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. of 2016 item 293), as amended by Article 1(9) of the Act of 22 December 2015 amending the Constitutional Tribunal Act, will cease to have effect after 9 (nine) months from the date of the publication of the judgment in the present case.

 

Also, as regards the remainder of the allegations, the Constitutional Tribunal decided to discontinue the review proceedings.

Dissenting opinions to the judgment were submitted by Judge Julia Przyłębska and Piotr Pszczółkowski.

 

I. In the decision of 14 January 2015, ref. no K 47/15, the Constitutional Tribunal decided that the case submitted by the applicants was to be considered at a hearing. Among the reasons given for the ruling, it was stated that in all circumstances the Constitutional Tribunal has the obligation to perform its systemic tasks. Undoubtedly, the said tasks comprise the examination of the constitutionality of statutes, including a statute regulating the functioning of the Tribunal (cf. Art. 188(1) of the Constitution). It was also emphasised that the assessment of the Act of 22 December 2015 amending the Constitutional Tribunal Act (hereinafter: the amending Act) is of unique systemic significance, as the Act makes it possible to determine whether the bases of the Tribunal’s organisation and its modus operandi, amended by the said Act do not pose a threat to adjudication by the Tribunal in other cases pending before that constitutional court. Moreover, the Tribunal assumed that a full bench of the Tribunal comprises all judges who have capacity to adjudicate on the day when a ruling is issued. The Tribunal deemed that the above findings remain fully relevant.

 

The Tribunal stated that a ruling in the present case concerns the provisions of the Constitutional Tribunal Act of 25 June 2015 (hereinafter: the Constitutional Tribunal Act) which must at the same time constitute the legal basis of the Tribunal’s judicial activities, including vital procedural activities leading to the issuing of this ruling. It should be deemed that it is not an acceptable situation where the subject of a legal dispute before the Tribunal is also the systemic and procedural basis of a determination issued to settle the dispute. A potential ruling of the Tribunal on the unconstitutionality of the challenged provisions would then lead to challenging the very process of adjudication (and, consequently, the result thereof i.e. a relevant judgment) as one that was carried out on an unconstitutional basis. The said paradox – which arises, inter alia, from the challenging of the provisions of the Constitutional Tribunal Act which concern the Tribunal’s organisation and its modus operandi within the scope of a posteriori constitutional review of the Act – is the reason why the consideration of the present case should commence by determining the proper ambit of adjudication in this case.

 

The Constitutional Tribunal stated that the assessment of conformity to the Constitution of a statute regulating the course of proceedings before the Tribunal should have a priority character. The Constitutional Tribunal may not act (and, in particular, adjudicate) on the basis of provisions that raise serious doubts in terms of their conformity to the Constitution. This would pose a threat to adjudication in cases pending before the Tribunal, would infringe the rights and freedoms of citizens awaiting the Tribunal’s consideration of a constitutional complaint or a question of law, and also would affect the stability and predictability of the system of law.

 

Pursuant to Article 190(1) of the Constitution, the ruling of the Constitutional Tribunal shall be of universally binding application and shall be final. The Constitution does not provide for any review procedure or for any possibility of revoking the Tribunal’s rulings due to procedural defects. Neither the Tribunal alone nor any external authority may repeal or amend a ruling issued at the end of proceedings by the adjudicating bench of the Tribunal, even if the said ruling was issued on the basis of provisions which were later assessed as inconsistent with the Constitution. In particular, in the context of the judgments of the Constitutional Tribunal, it is inadmissible to apply provisions on the procedure for determining the invalidity of proceedings, provided for in the civil procedure. Due to the irreversibility of the procedural defects of the Tribunal’s judgments, it is of great significance to clarify any matters that potentially raise constitutional doubts with regard to the bases of the Tribunal’s adjudication before the said provisions are applied. In this sense, this ruling is issued in an exceptional situation. This is indispensable for dispelling doubts concerning the Constitutional Tribunal Act and constitutes a prerequisite for the conformity to the Constitution of the Tribunal’s adjudication in subsequent cases. The Constitution provides for two ways of determining the conformity of the Constitutional Tribunal Act to the Constitution before its entry into force. Firstly, in such situations, the President of Poland may request the constitutional court to carry out the so-called preventive review (i.e. a priori review) before signing a bill (cf. Art. 122(3) in conjunction with Art. 126(2) of the Constitution). Secondly, it is possible and advisable, where there are doubts, to review the constitutionality of the Constitutional Tribunal Act during the period of vacatio legis, i.e. a period between the promulgation of a statute and its entry into force. For this possibility not to be illusory, the period of vacatio legis must be appropriate. Recourse to the said legal possibilities would make it possible to determine whether the new rules for the organisation and modus operandi of the Tribunal are consistent with the Constitution. However, this was not the case. The President of Poland did not lodge an application with the Tribunal before signing the amending Bill, and the legislator deemed that the Act was to enter into force on the day of its publication.

 

As a result of the decision of the said state authority, and due to the obvious need for the urgent issuance of a ruling concerning the amending Act, and amendments to the Constitutional Tribunal Act provided therein, the Constitutional Tribunal has to resort to a possibility derived from Article 195(1) of the Constitution. Pursuant to that provision, in certain circumstances the judges of the Tribunal may refuse to apply the binding statute as they are “independent and subject only to the Constitution”.

 

II. The Constitutional Tribunal deemed that the subject of adjudication in the present case comprises the directly applicable provisions of the Constitution as well as the Constitutional Tribunal Act as amended by the amending Act, with the exclusion of certain provisions thereof. What has been bypassed is a number of challenged regulations which concern the rules for proceedings before the Tribunal and could be potentially applicable in the case under examination. Indeed, it is inadmissible that the same provisions would be both the basis and subject of adjudication. The fact that the Tribunal applies Article 195(1) of the Constitution and bypasses, on the basis thereof, certain binding provisions of the Constitutional Tribunal Act, which also constitute the subject of the allegation in the present case before the Tribunal, does not alone undermine the presumption of constitutionality of those provisions, i.e. the assumption that those provisions are constitutional until, in proceedings before the Tribunal, it is proven otherwise.

 

When determining the proper composition of the adjudicating bench in the present case, the Constitutional Tribunal took account of the following circumstances.

 

Firstly, in the factual and legal circumstances that exist on the day of issuing the ruling in the present case, the full bench of the Tribunal comprises 12 judges. In its judgment of 3 December 2015, ref. no. K 34/15, the Tribunal ruled that the two judges of the Tribunal elected on 8 October 2015 by the Sejm during its 7th parliamentary term – to replace the judges whose terms of office were to end on 2 and 8 December 2015 – were not effectively elected. By contrast, the three judges of the Tribunal whose terms of office were to end on 6 November 2015 were elected by the Sejm on the same day, as the two aforementioned judges, on the constitutional legal basis, but they have not yet taken the oath of office before the President of Poland. The Tribunal is ex officio familiar with the above-mentioned judgment, which is final and, pursuant to Article 190(1) of the Constitution, is universally binding also with regard to the Tribunal.

 

Secondly, in the light of Article 194(1) of the Constitution, there are no doubts that a full bench of the Tribunal may be composed of maximum 15 judges. These are also all the judges who are constitutionally authorised to issue determinations. Indeed, if the Tribunal issues a ruling in a situation where a few judges are not authorised to adjudicate, due to the lack of a requisite action that needed to be taken by a state authority other than the Tribunal, and at the same time all judges of the Tribunal who are authorised to adjudicate participate in the issuing of the said determination, then the adjudicating bench selected in this way is indeed “a full bench”.

 

For the above reasons, the Tribunal assumed that a full bench of the Tribunal comprises all the judges of the Tribunal who may adjudicate in a given case (with a possible exclusion of some judges from the adjudicating bench, if – in accordance with the binding law – there are justified grounds for doing so). In other words, ‘a full bench’ denotes a full bench of the Tribunal within the meaning of the Constitution, where all the judges of the bench are authorised to adjudicate in a given case.

 

Moreover, the Tribunal decided to bypass the regulation which stipulates that full bench rulings require a two-thirds majority vote, since the regulation is subject to review in these proceedings. Instead of the said regulation, the Tribunal decided to directly apply Article 190(5) of the Constitution, which provides for a simple majority vote for issuing a ruling.

 

When issuing a judgment in the present case, the Tribunal also decided to bypass provisions on the consideration of applications in the order in which cases are received by the Tribunal as well as on the setting of the dates of hearings after 3 or 6 months from the date of service of the notification about those dates. The indicated provisions constitute the subject of the allegation in the present case, and the Tribunal deemed that there are vital reasons to refrain from the application of such rules. Indeed, it is objectively necessary to consider the allegations pertaining to the amending Act, before any other cases pending before the Tribunal are considered. What is at stake here is not only the guarantees for the subjects of constitutional rights and freedoms (e.g. persons who have lodged constitutional complaints with the Tribunal), but also the general stability and predictability of the legal system, which is affected by the judgments of the Tribunal.

 

III. The allegations of the applicants may be divided into several groups.

 

The first one comprises doubts as to the procedure for enacting the amending Act which pertain to the Act as a whole, as well as doubts with regard to the entry into force of the amending Act which refer to Article 5 of the Act. The second group comprises reservations concerning particular legal solutions provided for in the amending Act. They consisted in adding, repealing or modifying the provisions of the Constitutional Tribunal Act. Taking account of the arguments of all the applicants, the Constitutional Tribunal assumed that the subject of adjudication in the present case should be deemed as comprising relevant provisions of the amending Act and parallelly corresponding provisions of the Constitutional Tribunal Act as amended by the amending Act. The third group of allegations comprises doubts concerning the transitional provisions provided for in Articles 2 and 3 of the amending Act.

 

 

IV. 1. Recalling the course of legislative proceedings conducted in the Sejm with regard to the amending Bill, the Constitutional Tribunal stated that the standards determined in its judgment of 9 December 2015, ref. no. K 35/15, should in this case be applied accordingly. Indeed, what constituted the subject of that judgment was a number of procedural allegations that were similar to those formulated by the applicants in the present case, and which concerned considerably similar facts – namely, the enactment of the Act of 19 November 2015 amending the Constitutional Tribunal Act (hereinafter: the amending Act of 19 November 2015).

 

The Constitutional Tribunal delineated “critical boundaries” in the said judgment, the crossing of which results not only in the defectiveness of a legislative process, but also in its unconstitutionality. When comparing the infringements of procedural norms which occurred in the course of enacting the amending Act of 19 November 2015 and the amending Act of 22 December 2015, the Tribunal concluded that a degree of accumulation of those infringements in the case of the latter statute was much higher.

 

Firstly, when enacting the amending Act of 22 December 2015, the Sejm breached Article 37(2) of the Sejm’s Rules of Procedure, in accordance with which the first reading of the amending Bill should have taken place – as in the case of every statute regulating the organisational structure and competence of public authorities – at a sitting of the Sejm. Indeed, the first reading of the amending Bill was held at a sitting of the Sejm; however, later on, at a sitting of the Sejm’s Legislative Committee after the first reading and at the stage of the second reading at a sitting of the Sejm, amendments which constituted a normative novelty were proposed to the amending Bill. Those elements of the Bill were not at all subjected to the procedure of the first reading – neither at the Sejm’s sitting nor at a sitting of the Committee. This means that the amending Bill, in the part concerning the proposed amendments, was considered in the course of only two readings, and thus the legislative process which led to the enactment of the said Bill was unconstitutional. Such defectiveness of the legislative process not only constitutes an infringement of Article 37(2) of the Sejm’s Rules of Procedure, but, above all, breaches Article 119(1) of the Constitution, pursuant to which the Sejm considers bills in the course of three readings.

 

Secondly, the Sejm refrained from applying the guarantee rule arising from Article 37(4) of the Sejm’s Rules of Procedure, in accordance with which the first reading should be held no earlier than on the seventh day from the date of service of a bill on Sejm Deputies. The first reading of the amending Bill took place after less than two days from the date of lodging the Bill with the Marshal of the Sejm. Therefore, Sejm Deputies had little time to familiarise themselves with the content of the Bill and to prepare themselves for further proceedings, despite the fact that the Bill provided for numerous and far-reaching systemic changes. Furthermore, despite negative opinions submitted with regard to the amending Bill, the Marshal of the Sejm did not decide to consult the Legislative Committee, as prescribed in Article 34(8) of the Sejm’s Rules of Procedure.

 

Thirdly, the Sejm refrained from applying the guarantee rule provided for in Article 44(3) of the Sejm’s Rules of Procedure, in accordance with which the second reading may be held “no earlier than on the seventh day from the date of service of the committee’s report on Sejm Deputies”. The second reading of the amending Bill was held on the same day when the Legislative Committee presented its report on the said Bill to the Sejm. Consequently, Sejm Deputies had little time to familiarise themselves with the report of the Committee, which was a document of great significance for further proceedings. Furthermore, an analysis of the content of the report on the amending Bill leads one to the conclusion that, within the imposed time-limit of one day, Sejm Deputies were unable to diligently prepare themselves for further proceedings. Indeed, the said report contained numerous amendments and minority motions concerning the crucial elements of proceedings before the Constitutional Tribunal and the status of the judges of the Tribunal, which partly exceeded the original scope of the Bill.

 

Fourthly, the Sejm failed to fulfil the obligation to consult the amending Bill with competent entities and authorities. Opinions prepared by the National Council of the Judiciary, the Supreme Court, the Public Prosecutor-General, the Helsinki Foundation for Human Rights, the National Bar Council, as well as the National Council of Legal Advisers were submitted to the Sejm at the early stages of work on the Bill; however, subsequently, in the course of work carried out by the Sejm’s Legislative Committee after the first reading, the Bill was supplemented by new solutions which were not at all subjected to the aforementioned procedure of consultation, due to the pace and scale of the legislative work.

 

Fifthly, an argument against the quick pace of the legislative proceedings carried out in the Sejm is the subject of the amending Act. The subject matter concerned such important systemic issues as: disciplinary proceedings concerning a judge of the Tribunal and the expiry of the mandate of a judge of the Tribunal; a procedure for selecting candidates for the positions of the President and Vice-President of the Tribunal; the coordination of the Tribunal’s work; the order in which cases are to be considered; the composition of adjudicating benches; a procedure for preparing a hearing, or a sitting in camera; as well as a requisite number of votes to issue a ruling; there is no doubt that such subject matter required a diligent and thorough analysis by the Sejm. Thus, the legislative work should have been conducted within a reasonable time-frame, in adherence to at least standard rules provided for in the Sejm’s Rules of Procedure. The quick pace of the legislative proceedings in the case of the amending Bill was also not advisable due to the significance of the subject matter under regulation to the functioning of the constitutional court, and a novel character of several of the adopted solutions, which had not yet been known in the Polish legal system. The scope and extent of changes introduced by the amending Act are additional reasons why the Sejm should have conducted its proceedings with deliberation and within a reasonable time-frame that would actually have permitted the consideration of the Bill in the course of three readings (in a true sense; not just formally). Sixthly, when working on the amending Bill, the Sejm repeated the actions which the Tribunal had already declared to be defective in its judgment in the case K 35/15. The repetition of the same irregularities, with even greater frequency, during the legislative work on the amending Bill shows that the inappropriate practice is becoming recurrent in the Sejm. Moreover, strong and clear allegations with regard to solutions adopted in the Bill and the conduct of work on the Bill were raised by the parliamentary opposition, legislators in the Sejm and the Senate, as well as the entities and authorities that presented their opinions in the course of the legislative proceedings. The fact that the Sejm conducted the work on the Bill, ignoring implications arising from the Tribunal’s judgment in the case K 35/15 as well as the allegations of unconstitutionality raised in the course of the legislative proceedings confirms the thesis that the Sejm consciously continued its work in breach of the requirement that public authorities should function on the basis of, and within the limits of, the law. The Tribunal notes that the legislative procedure – as a set of principles from the Constitution and from relevant rules of procedure which determine the process of enacting a statute – fulfils two basic functions: it ensures that a statute has democratic legitimacy; and it legitimises the substance of the statute. The infringements of the procedure which occurred in the process of enacting the amending Act, which have been pointed out by the Tribunal, justify the thesis that in the case under examination, the procedure did not fulfil any of the two functions. First of all, the legislative process did not guarantee the actual participation of all political fractions represented in the Polish Parliament. Moreover, the quick pace of proceedings without any thorough justification for proposed solutions and the evaluation of their possible effects did not minimise the risk of inapt and unconstitutional regulations.

 

Taking the above into consideration, the Tribunal stated that the amending Act was enacted in breach of the Constitution, and to be specified its provisions of: Article 7, Article 112 and Article 119(1) and the principle of appropriate legislation, which arises from Article 2 of the Constitution. Indeed, the Sejm violated the rule that bills are considered in the course of three readings (Article 119(1) of the Constitution), by carrying out the legislative process in breach of rules that the Sejm itself established within the scope of the autonomy of the Sejm’s Rules and Procedures (Article 112 of the Constitution). During the enactment of that statute an organ of the state consciously took action that surpassed the limits of law (Article 7 of the Constitution), which constitutes an infringement of the principle of appropriate legislation, being one of the most basic principles of a democratic state ruled by law (Article 2 of the Constitution).

 

2. As regards the allegation about the infringement of the procedure for introducing legislation, the Tribunal pointed out that amendments proposed to a bill should be linked with the bill submitted by the authors; the said link should be both formal and substantive in character. Particular amendments must be related to the content of the bill; they must be intended for modifying the content of the bill, and not to draft a new bill. Also, the evaluation of the amendments to a large extent depends on the stage of parliamentary work, at which they are proposed. As the documentation of the legislative process suggests, the content of the Deputies’ amending Bill was considerably changed in the course of the legislative process in the Sejm. The most far-reaching amendments to the original Bill were proposed and incorporated into the Bill after the first reading, at the stage when it was being considered by the Legislative Committee. The Constitutional Tribunal stated that not all amendments were sufficiently related to the subject matter of the Bill, i.e. with the matters addressed in the Bill introduced by Deputies. In particular, these were amendments that concerned the institution of disciplinary proceedings with regard to a judge of the Tribunal, the recall of a judge of the Tribunal before the end of the term of office, or the repeal of the entire chapter on determining the existence of an impediment to the exercise of the office by the President of the Republic of Poland.

 

Therefore, the Tribunal adjudicated that Article 8(4), Article 28a, Article 31a, Article 36(1)(4) and Article 36(2) of the Constitutional Tribunal Act – amended or added as a result of corrections made in the Bill at the stage of work carried out by the committee between the first and second reading – are inconsistent with Article 118(1) and Article 119(2) of the Constitution. Moreover, the Tribunal deemed that Article 1(15) of the amending Act, which pertains to the repeal of Article 10 of the Constitutional Tribunal Act, is inconsistent with the same higher-level norm for the review.

 

3. The Constitutional Tribunal adjudicated that the amending Act does not infringe the competence of the National Council of the Judiciary to provide opinions.

The said competence to provide opinions on normative acts, within the scope of the independence of the Constitutional Tribunal as well as the independence of judges, has its basis is in the Act on the National Council of the Judiciary. Consequently, even if the opinion has not been presented in the course of legislative proceedings, one may not assume that the legislative process, in the course of which the amending Act was enacted, infringed the Constitution. Therefore, the Tribunal concluded that the amending Act is consistent with Article 186(1) of the Constitution.

 

4. When assessing the legislative process, the Constitutional Tribunal adjudicated that the entire amending Act is inconsistent with Article 7, Article 112 as well as Article 119(1) of the Constitution, as well as the principle of appropriate legislation, which arises from Article 2 of the Constitution. Moreover, the Tribunal ruled that the amending Act is consistent with Article 186(1) of the Constitution and that it is inconsistent with Article 123(1) of the Constitution.

 

Consequently, the Constitutional Tribunal stated that the amending Act in its entirety is inconsistent with the Constitution, due to a defective legislative process in which it was enacted.

 

V. The Tribunal held that declaring the unconstitutionality of a normative act due to the legislative process in which it was enacted does not rule out the admissibility of examining also allegations raised with regard to particular provisions of that normative act. The simultaneous application of two kinds of criteria for assessing constitutionality are provided in Article 50(3) of the Constitutional Tribunal Act, which is confirmed by the practice of the Tribunal. It is necessary to verify numerous allegations concerning the content of the challenged provisions in case the legislator undertakes further legislative action with regard to the organisation and functioning of the Tribunal. Such verification indicates which normative solutions are potentially incompatible with the Constitution and go beyond the scope of the legislator’s discretion.

 

VI. The Constitutional Tribunal ruled that Article 5 of the amending Act, pursuant to which the said Act enters into force on the day of its publication, is inconsistent with Article 2 and Article 188(1) of the Constitution as well as is not inconsistent with Article 8(1) of the Constitution.

 

The Tribunal held that the lack of vacatio legis introduced by the legislator is particularly striking in the context of transitional provisions which specify the requirement to apply the new statute. The Constitutional Tribunal had no possibility of properly preparing itself, in organisational terms, for the requirements introduced by the amending Act. This may result in the lack of continuity in the Tribunal’s exercise of its powers set out in the Constitution as well as in the excessively slow pace of proceedings before the Tribunal.

 

The challenged provision also negatively affects the rights and obligations of subjects participating in proceedings before the Tribunal (in particular, citizens lodging constitutional complaints), as well as courts referring questions of law. The legislator provided for no adaptation period during which the addressees of the norms specified in the amending Act could adjust to new regulations and plan their actions, taking account of all legal consequences related thereto. At the same time, the legislator did not indicate what important public interest or vital constitutional values weighed in favour of an approach where provisions on the Tribunal’s organisation and its modus operandi with regard to cases pending before the Tribunal enter into force on the day of their publication.

The Tribunal stated that the aim underlying Article 5 of the amending Act was to hinder or even block a constitutional review of the said Act before the Act entered into force. By contrast, Article 5 of the amending Act does not rule out the constitutional review of the Act after its entry into force – however, only in accordance with rules provided therein. The Constitutional Tribunal considers this to be inadmissible. In the Tribunal’s view, the indicated action on the part of the legislator was intended to bypass Article 188(1) of the Constitution.

 

VII. Next the Constitutional Tribunal assessed several provisions of the amending Act which concern review proceedings and the issuing of rulings.

The Constitutional Tribunal determined that Article 1(3) of the amending Act and Article 10(1) of the Constitutional Tribunal Act pursuant to which the General Assembly of the Judges of the Constitutional Tribunal is to adopt resolutions by a two-thirds majority vote, in the presence of at least 13 judges of the Tribunal are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 of the Constitution.

In the Tribunal’s view, the legislator is obliged to determine the procedure for adopting resolutions by the General Assembly of the Judges of the Tribunal (hereinafter: the General Assembly) in such a way – both in terms of the quorum needed to adopt a resolution as well as the requisite majority of votes – that there is a real possibility of adopting resolutions within time-limits set by statute. By increasing the quorum and the majority of votes which is necessary for the adoption of a resolution, without concurrently introducing more flexible time-limits for the General Assembly, the legislator aggravates the risk that there will be no legal possibilities of adopting a required decision by the said Assembly within a prescribed time-frame.

At the same time, the legislator has not provided for any substitute ways of adopting the aforementioned decisions by another organ of public authority in case the General Assembly – due to the lack of the required quorum or the requisite majority of votes – would not be able to adopt a given resolution. It may happen that at the same time three judges of the Tribunal – for various reasons, including health problems – will not be able to participate in a sitting of the General Assembly. Also, if the Sejm happens to be late with the election of judges of the Tribunal to replace judges whose terms of office have expired or if the President of Poland happens to be late with giving the oath of office to judges elected to the Tribunal by the Sejm, then the General Assembly may be composed of a smaller number of judges than 13 judges required for the adoption of a resolution.

 

The introduction of the doubled qualified majority, which hinders – and at times rules out – the adoption of a given resolution, has no rational justification, and hence must be regarded as arbitrary and in breach of the requirement of ensuring the efficiency of the activity of the General Assembly.

 

VIII. The Constitutional Tribunal agreed with the applicants’ view that Article 1(9) of the amending Act as well as Article 44(1) and (3) of the Constitutional Tribunal Act – pursuant to which the Tribunal is required to adjudicate as a full bench, composed of  at least 13 judges, in cases commenced by applications – are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution.

The Constitutional Tribunal held that the legislator lacks full discretion within the scope of determining issues as fundamental for the activity of the organs of the judiciary as the numbers of judges of particular adjudicating benches. In accordance with the Preamble to the Constitution, when regulating such matters, the legislator is obliged to ensure diligence and efficiency in the work of courts and tribunals. Thus, the composition of adjudicating benches must be determined in such a way that they will guarantee diligent, i.e. impartial and independent, as well as efficient, i.e. without undue delay, consideration of cases. When specifying rules for determining the composition of adjudicating benches, the legislator also needs to respect the independence of the Tribunal and its judges. In particular, the rules should provide the judges of the Tribunal with a considerable margin for exercising the guarantees of their independence, such as e.g. the legal institution of excluding a judge of the Tribunal from the Tribunal’s consideration of a case. Recourse to that measure on the part of a judge of the Tribunal may not paralyse the work of the Tribunal.

When determining the number of judges adjudicating on a case, the legislator ought to take account of the need to ensure efficiency in the activity of the Tribunal. The involvement of all the judges of the Tribunal in the consideration of one case limits their possibility of participating in parallel examination of other cases. In fact, an increase in the number of judges adjudicating on a case does not guarantee the higher quality and stricter impartiality of issued rulings. Indeed, the number of judges does not directly affect the quality of a determination issued by those judges. Specified in the previously binding provisions, the principle that most cases were to be considered by benches of three or five judges of the Tribunal made it possible to have five benches of three judges and three benches of five judges working on different cases simultaneously. Consequently, a conclusion drawn from the rules of arithmetic is that work on cases concerning regulations may take five times longer, and on cases regarding the constitutionality of statutes – three times longer.

In the Tribunal’s view, the legislator applied no rational criteria when allocating cases for consideration to benches composed of different numbers of judges. On the one hand, he assigned highly significant cases – i.e. cases commenced by constitutional complaints or questions of law, as well as cases on the conformity of statutes to international agreements whose ratification required prior consent granted by statute – to a bench composed of a smaller number of judges. On the other hand, in all cases commenced by applications, regardless of their subject matter, he required that they be considered by a full bench of the Tribunal.

 

IX. The Constitutional Tribunal ruled that Article 1(10) of the amending Act and Article 80(2) of the Constitutional Tribunal Act – which stipulates that the dates of hearings or the dates of sittings in camera, at which applications are considered, are to be set in the order in which cases are received by the Tribunal – are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as with Article 10 and Article 45(1) of the Constitution.

The Tribunal held that the said mechanism implies correlating the pace of the Tribunal’s consideration of a case with circumstances that are in no way rationally related to the case. The legislator’s assumption is that all cases received by the Tribunal are comparable and require the same amount of time for consideration. Yet, time that is required for considering a case does not depend on the number of other cases received by the Tribunal but on the particular subject matter of that case, and especially on the number and the degree of complexity of challenged provisions, as well as on the number and complexity of provisions of the Constitution which are indicated as higher-level norms for review.

Furthermore, Article 80(2) of the Constitutional Tribunal Act makes it impossible in the process of adjudication to take account of other provisions of law which require that the Tribunal should determine cases within certain time-frames. This in particular refers to Article 224(2) of the Constitution, which stipulates that if the President of the Republic has made reference to the Constitutional Tribunal for an adjudication upon the conformity to the Constitution of the State Budget Bill or the Interim State Budget Bill, before signing it, the Tribunal is to adjudicate such matter no later than within 2 months from the day of submission of such reference to the Tribunal.

Article 80(2) of the Constitutional Tribunal Act is also inadmissible in the light of the principle of the independence of the judiciary and its separateness from the legislature. Indeed, determining the pace of the Tribunal’s work on particular cases, including setting the dates of hearings and the dates of sittings in camera, is closely related to the Tribunal’s adjudication in cases referred to in Articles 188 and 189 of the Constitution. The legislator’s task is to create optimal conditions for the Tribunal to adjudicate on those cases, and not to interfere in the process of adjudication by specifying the moment when the Tribunal may examine a given case.

The Tribunal pointed out that proceedings instituted before the Tribunal by a question of law, submitted by a court with regard to a case pending before the court, fall under the requirement that they need to be carried out “without undue delay”. The solution provided for in Article 80(2) of the Constitutional Tribunal Act – namely, that the Tribunal may not consider a given case until it schedules the dates of hearings and the dates of sittings in camera in cases received earlier by the Tribunal – violates the requirement that a case is to be considered without undue delay by a court referring a question of law.

 

X. The Constitutional Tribunal agreed with the applicants’ allegation that Article 1(12)(a) of the amending Act and Article 87(2) of the Constitutional Tribunal Act, pursuant to which a hearing may not be held earlier than after 3 months following the service of the notification about the date of the hearing, and as regards cases considered by a full bench of the Tribunal – after 6 months, are inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as with Article 10 and Article 45(1) of the Constitution.

The Tribunal stated that, similarly to Article 80(2) of the Constitutional Tribunal Act, the challenged provision makes it impossible for the Tribunal to take account, in the adjudication process, of other provisions of the Constitution and the Constitutional Tribunal Act which require that cases be determined by the Tribunal within a certain time-frame. The introduction of the requirement of a lengthy waiting period as regards setting the dates of hearings does not take account of the unique character of particular cases; the said character determines that they are considered at a different pace and that some of them are assigned a priority status. A considerable delay of a hearing in cases which are ready to be determined, where there is no rational justification for such a delay, must therefore be regarded as inadmissible interference of the legislature in the process of the Tribunal’s adjudication, which undermine the independence of the said organ of the judiciary and its separateness from the other branches of government.

The Tribunal ruled that an unjustified delay in considering cases by the Tribunal for 3 or 6 months breaches the requirement for the consideration of a case without undue delay by a court that has referred a question of law to the Tribunal. Indeed, this prolongs court proceedings, and the period of waiting for a hearing may not be regarded as a due delay, since it does not facilitate better examination of a case; on the contrary – the said waiting period slows down the process. In the Tribunal’s view, the period of 3 or 6 months is excessively lengthy when compared, in particular, with considerably shorter time-limits for producing written submissions or opinions by participants in proceedings (30 days or 2 months).

Taking the above into consideration, the Tribunal held that Article 87(2) of the Constitutional Tribunal Act is dysfunctional and arbitrary, and above all inadmissible in the light of the principle of the Tribunal’s independence and its separateness from the other branches of government. The requirement of a long waiting period before the date of a hearing is set, where this is not justified by any rational reasons, also infringes the right of citizens to have their cases considered without undue delay when proceedings before the Tribunal are instituted by means of a question of law or a constitutional complaint.

XI. The Tribunal ruled that Article 1(14) of the amending Act and Article 99(1) of the Constitutional Tribunal Act, pursuant to which full bench rulings of the Tribunal require a two-thirds majority vote, are inconsistent with Article 190(5) of the Constitution.

The Tribunal pointed out that in accordance with Article 190(5) of the Constitution, rulings of the Tribunal are determined by “a majority of votes”. A proviso that an organ of public authority determines its decisions by a majority vote always implies a simple majority, unless a constitutional provision explicitly indicates a different majority. In the Tribunal’s opinion, Article 190(5) of the Constitution gives no grounds for the legislator to diversify a majority vote required for determining a ruling, depending on the adjudicating bench of the Tribunal, or to introduce a different majority vote than the one specified in the said provision.

XII. The Tribunal addressed Article 2 of the amending Act, which provides for transitional solutions. The Tribunal stated that the said provision is inconsistent with Article 2 and Article 173 in conjunction with the Preamble to the Constitution as well as Article 10 and Article 45(1) of the Constitution.

In the Tribunal’s view, the necessity to determine again the composition of an adjudicating bench in cases pending before the Tribunal, as provided for in Article 2(1) of the amending Act, i.e. the requirement to commence the consideration of a case anew, manifests the legislature’s interference in the process of adjudication. Consequently, the said regulation undermines the independence of the Tribunal and its separateness from the other branches of government. The said regulation is also contrary to the requirement of the consideration of a case without undue delay, as expressed in Article 45(1) of the Constitution, in cases with regard to which courts have referred questions of law to the Tribunal. Since there are no rational reasons for the Tribunal to change the composition of a given adjudicating bench and consider a relevant case anew, the ensuing delay causing a delay in proceedings before a court that has referred its questions about constitutionality to the Tribunal may not be considered to be a justified delay in the light of Article 45(1) of the Constitution.

For similar reasons, as in the case of Article 80(2) of the Constitutional Tribunal Act, the Tribunal deemed that the obligation provided for in Article 2(2) and (4) of the amending Act, which set the date of a hearing or the date of a sitting in camera within 45 days or 3 months from the date of service of the notification about the date of a hearing, is inconsistent with the Constitution. The Tribunal also had constitutional reservations as to the obligation to set the dates of hearings or the dates of sittings in camera, with regard to cases pending that were commenced by applications, in the order in which the cases were received by the Tribunal (Article 2(3) and (4) of the amending Act). This would entail that cases received by the Tribunal after 28 December 2015 may be considered only after considering 174 cases which were received by the Tribunal before that date.

XIII. To sum up presented findings, the Tribunal stated that all the elements of the new mechanism of adjudication for the Tribunal in cases falling within the scope of the Tribunal’s jurisdiction – as set out in Article 10(1), Article 44(1) and (3), Article 80(2) and Article 87(2) of the Constitutional Tribunal Act and the corresponding provisions of the amending Act – are dysfunctional for they fail to create conditions that make it possible for the Constitutional Tribunal to carry out its activity diligently and efficiently as well as, by virtue of interfering in the Tribunal’s independence and separateness from the other branches of government, infringe the principles of a state ruled by law.

Undoubtedly, the application of all the solutions adopted in the aforementioned provisions would result in slowing down the process of the Tribunal’s adjudication as well as would cause a delay that would in no way be justifiable in the light of the constitutional norms, principles and values. Particular solutions included in the provisions subjected to the Tribunal’s review are also shaped in such a way that together they make up a mechanism that paralyses the activity of the Tribunal.

Even if, in practice, each of them were applied separately, this would considerably undermine the efficiency of the Tribunal’s activity and would prolong the time needed for the exercise of powers granted to the Tribunal. All these solutions practically deprive the Tribunal of its capacity to adjudicate.

An additional element paralysing the Tribunal’s activity is the fact that new solutions entered into force on the date of publication of the amending Act, and thus the Tribunal had no possibility of preparing itself for the application thereof.

Moreover, due to the introduction of the requirement that cases pending before the Tribunal on the date of entry into force of the amending Act should be considered anew, and before cases received by the Tribunal later – with the concurrent assumption that all those cases will be processed by resorting to new statutory solutions that are bound to slow down proceedings before the Tribunal – this entails that there has been established a mechanism which would make it impossible for the Tribunal to conduct a constitutional review with regard to statutes adopted by the Polish Parliament during its current term. The lack of procedural possibility of reviewing legal acts passed by the state authorities that are currently in power entails that, in practice, the said acts will be excluded from the scope of the Tribunal’s jurisdiction, contrary to Article 188 of the Constitution. The legislator’s decision to apply the amended provisions forthwith, with the concurrent lack of vacatio legis, is an evident contradiction of the declarations of the authors of the amending Act, who claimed that the aim of the amending Bill was to “mend” or “facilitate” the Tribunal’s activity. On the contrary – the intended (although not explicitly stated) purpose was to deprive the Constitutional Tribunal of its capacity to conduct constitutional review of law, at least for a certain period.

The Tribunal held that there is no possibility of interpreting the challenged provisions in a way that would be consistent with the Constitution, for their content and actual aim, i.e. the virtual paralysis of the Tribunal, are incompatible with the requirement of ensuring diligence and efficiency in the activity of that state authority. The solutions adopted in the challenged provisions are dysfunctional to such an extent that they may not be corrected in the application of law.

XIV. The Constitutional Tribunal stated that Article 1(5) of the amending Act and Article 28a of the Constitutional Tribunal Act, which permits instituting disciplinary proceedings with regard to a judge of the Tribunal upon application by the President of the Republic of Poland or the Minister of Justice, is inconsistent with Article 173 in conjunction with Article 10(1) as well as with Article 195(1) of the Constitution.

In the Tribunal’s opinion, the disciplinary responsibility of judges serves as a guarantee of ensuring the proper position of the constitutional court, by enabling that organ of the judiciary to ensure the proper ethical standards of judges, which directly affects the performance of the Tribunal’s judicial tasks.

The issue of the disciplinary responsibility of judges of the Tribunal falls within the ambit of the independence and autonomy of the constitutional court, and hence the disciplinary proceedings in their entirety should be carried out within the Tribunal.

The Tribunal stated that granting executive authorities the power to submit an application for instituting disciplinary proceedings infringes the independence of judges, by linking a decision issued with regard to a given judge with authorities outside of the judiciary as well as with political factors. At the same time, it is not of great significance that decisions on the validity of the aforementioned application and on steps required to institute disciplinary proceedings are made by the President of the Tribunal. Indeed, even the possibility of filing such an application may have a negative impact on a judge of the Tribunal and the perception of his/her independence.

XV. The Tribunal stated that eliminating – from the catalogue of disciplinary penalties set out in Article 31(3) of the Constitutional Tribunal Act – the penalty of the recall of a judge of the Tribunal from office, and granting that competence to the Sejm in Article 36(1)(4) of the Constitutional Tribunal Act, by Article 1 points 6, 7 and 8 of the amending Act, is inconsistent with the Constitution.

The Tribunal held that vesting the Sejm with the competence to recall a judge of the Tribunal from office constitutes the legislature’s interference in the realm of the Tribunal’s autonomy within the scope of the Tribunal’s basic activity related to considering cases and adjudicating thereon.

As an organ of the legislature, the Sejm may have an impact on the organs of the judiciary, including the Constitutional Tribunal, only within the scope that does not undermine the separateness of the judiciary, and above all in situations specified in the Constitution. The only provision of the Constitution which assigns competence to the Sejm in the context of judges of the Tribunal is Article 194(1) of the Constitution, which stipulates that the Sejm chooses judges of the Tribunal. What does not follow from that provision is the granting of any further powers concerning the status of a judge to the Sejm, and in particular powers linked with terminating duties performed by a judge before the end of his/her term of office. The role of the Sejm in this context has been systemically limited to the election of judges of the Tribunal. Having chosen a judge of the Tribunal, the Sejm definitely loses its influence over the status of the judge of the Tribunal. The granting of such far-reaching competence to an organ of the legislature interferes with the independence of a judge of the Tribunal, in particular his/her independence from non-judicial organs (institutions) and political factors.

As noted by the Tribunal, the amending Act, which repealed Article 31(3) of the Constitutional Tribunal Act, has considerably modified the disciplinary responsibility of the judges of the Tribunal by eliminating the most severe disciplinary penalty administered by the Tribunal. After the enactment of the challenged provision, the catalogue of penalties which may be administered in disciplinary proceedings was limited to a warning and a reprimand. The repeal of the provision permitting the recall of a judge of the Tribunal from office, as a disciplinary penalty, entails that, after the enactment of the amending Act, the Tribunal has no possibility of deciding to recall a judge of the Tribunal from office if the said person undermines the dignity of the office, behaves unethically or breaches the law. In justified cases, it is necessary to administer the penalty of recalling a judge of the Tribunal from office so that a person who does not meet requirements that are necessary for the performance of judicial duties would be deprived of the office. Therefore, the said disciplinary penalty constitutes one of the legal guarantees of the independence of the Constitutional Tribunal. The Tribunal ruled that Article 1(6) of the amending Act, repealing Article 31(3) of the Constitutional Tribunal Act, is inconsistent with Article 173 in conjunction with Article 10(1) of the Constitution.

Also, in Article 31a(2) of the Constitutional Tribunal Act, the power granted to the President of Poland and the Minister of Justice – to lodge an application to commence the procedure for the recall of a judge of the Tribunal from office – undermines the principle of the independence of the Tribunal and its judges.

The participation of executive authorities in any of the stages of disciplinary proceedings, and in any other procedure aimed at evaluating the conduct of a judge of the Tribunal and his/her status, constitutes unjustified interference in the realm of autonomy of the Constitutional Tribunal.

Although the ultimate decision as to the validity of the aforementioned application and the commencement of the said procedure is to be made by the General Assembly, this does not rectify the infringement of the independence of judges, since even a possibility of lodging such an application may negatively affect the perception of a particular judge as independent. Moreover, the Tribunal deemed that, in Article 31a(1) of the Constitutional Tribunal Act, the description of situations which justify lodging an application with the Sejm to recall a judge of the Tribunal from office, because of imprecise wording “in particularly striking instances”, does not meet the standard of precise legal regulation.

 

Therefore, the Constitutional Tribunal ruled that Article 31a and Article 36(1)(4) of the Constitutional Tribunal Act as well as Article 1(7) and Article 1(8) of the amending Act are inconsistent with the principle of specificity of law, arising from Article 2 of the Constitution, Article 78, Article 173 in conjunction with Article 10(1) and Article 195(1) of the Constitution, as well as are not inconsistent with Article 180 (1) and (2) of the Constitution.

XVI. The Tribunal ruled that the deprivation of the General Assembly and the President of the Tribunal of the competence to determine the expiry of the mandate of a judge of the Tribunal and the granting of the said competence to the Sejm, in Article 1(8) of the amending Act and Article 36(2) of the Constitution Tribunal Act, are inconsistent with Article 173 in conjunction with Article 10(1) as well as with Article 195(1) of the Constitution.

The Tribunal pointed out that what may be derived from Article 173 in conjunction with Article 10(1) is a norm in accordance with which a judge of the Tribunal may not be recalled from office before the end of his/her term of office by a legislative or executive authority. The purpose of that norm is to guarantee that judges of the Tribunal have proper conditions for the independent review of normative acts; this contributes to the protection of the Constitution.

The significance of the Tribunal’s competence to review the constitutionality of statutes passed by the Sejm rules out any possibilities of the Sejm’s influence on the status of the adjudicating judges of the Tribunal. By contrast, the granting of the competence to determine the expiry of the judicial mandate directly impacts the status of the judges of the Tribunal. For that reason, vesting the Sejm, i.e. an organ of the legislature, with the competence to determine the expiry of the mandate of a judge of the Tribunal constitutes an infringement of Article 173 in conjunction with Article 10(1) of the Constitution by inadmissible interference in the independence of the Constitutional Tribunal. The granting of far-reaching competence – such as the competence to determine the expiry of the mandate of the said judge – to an organ of the legislature blatantly infringes the independence of the judge of the Tribunal, which comprises being independent of non-judicial authorities (institutions) as well as political factors.

XVII. The Tribunal agreed with the applicants’ allegation that Article 1(16) of the amending Act, insofar as it repeals Article 28(2) of the Constitutional Tribunal Act, which concerns the disciplinary responsibility of a judge of the Tribunal for his/her conduct prior to taking up the office, is inconsistent with Article 195(1) and with Article 173 in conjunction with Article 10(1) of the Constitution.

The Tribunal deemed that the disciplinary responsibility of judges of the Tribunal may not be limited to acts committed while performing judicial duties. A judge of the Tribunal who in the past acted in a way which undermines the dignity of the judicial office may be vulnerable to external pressure, which – in the light of the principle of the independence of the Tribunal and its judges – is inadmissible. The stretching of the scope of the disciplinary responsibility to encompass acts committed by judges of the Tribunal prior to taking up the office is meant to ensure that the Tribunal, as an organ of the judiciary, enjoys due authority among the recipients of its rulings as well as the general public. Such a scope ratione tempori of the disciplinary responsibility is necessary for the protection of the dignity of the Tribunal in a situation where the commission of an act that may be regarded as a disciplinary violation is only revealed during the term of office of a given judge.

The Tribunal adjudicated that limiting the scope of the disciplinary responsibility of judges of the Tribunal, by excluding the responsibility for acts committed prior to taking the office from the scope of the said responsibility, is inadmissible in the light of the principle of the Tribunal’s independence, the principle of the separation of powers and the principle of the independence of the Tribunal’s judges.

 

XVIII. The Constitutional Tribunal ruled that Article 1(16) of the amending Act, insofar as it repeals Article 19(1) of the Constitutional Tribunal Act, which concerns proposing candidates to the office of a judge of the Tribunal and voting on the election of judges of the Constitutional Tribunal, is inconsistent with Articles 112 and 173 in conjunction with Article 10 of the Constitution as well as in not inconsistent with Article 197 of the Constitution.

In the view of the Constitutional Tribunal, the concurrent and coherent regulation of rules for the election of judges of the Tribunal by the Sejm in the Constitutional Tribunal Act and the Sejm’s Rules of Procedure in the years 1986-2015 was a functional solution.

Until recently this did not arouse any controversy. In particular, there were no doubts as to the rule that the said subject matter required a certain level of statutory regulation, and the potential citation of statutory regulations in the Sejm’s Rules of Procedure is only a repetition and is to facilitate the application thereof.

Pursuant to Article 112 of the Constitution, in the Sejm’s Rules of Procedure, “the procedure for appointment” of its organs is to be regulated in a comprehensive and exhaustive way. However, the Constitutional Tribunal is an organ of the judiciary that is independent of and separate from the legislature. The members of that organ of the judiciary are elected by the Sejm, but – which is obvious – they may not be treated as the organs of the Sejm.

Article 112 of the Constitution within the scope in which it provides for the Sejm’s obligation to regulate “the procedure of appointment” of its organs in the Sejm’s Rules of Procedure is not applicable to the Constitutional Tribunal, and in particular one may not derive therefrom the Sejm’s right to introduce changes to the rules for electing all 15 judges of the Tribunal at any time.

The election of judges of the Tribunal by the Sejm is undoubtedly a realm within which there is an overlap between the legislature and the judiciary. The Sejm, as the organ of the legislature, is the only competent authority to determine the composition of the Constitutional Tribunal as an independent organ of the judiciary. The significance of the procedure for proposing judicial candidates for the systemic position of the Tribunal weighs in favour of a statutory regulation for the basic elements of the said procedure. Such a form of the regulation – to a larger extent than the Sejm’s Rules of Procedure –guarantees that the detailed solutions concerning the bodies or persons that are competent to propose candidates and the time-limits for the exercise of the competence granted to them will correspond to the requirements which may be derived from Article 173 in conjunction with Article 10 of the Constitution. The Tribunal pointed out that not all matters pertaining to the election of the judges of the Tribunal by the Sejm fall within the scope of the statutory subject matter. The technical and organisational issues related to the election of judges may be specified in the Sejm’s Rules of Procedure.

XIX. The Constitutional Tribunal ruled that Article 1(15), which repeals the whole of Chapter 10 of the Constitutional Tribunal Act, is inconsistent with Article 197 of the Constitution.

The Tribunal held that the regulation of a procedure before the constitutional court in a crisis situation – namely, in the event that the President of Poland has no capacity to notify the Marshal of the Sejm about an impediment to the exercise of presidential duties – is an obligation of the legislator which arises from Article 197 of the Constitution.

The mechanism provided for in Article 131(1) of the Constitution requires, in many points, more precise and exhaustive wording. At the statutory level, at least the basic elements of that procedure should have their reflection.

Additionally, the legislator should also ensure that a procedure shaped by him would facilitate the most effective exercise of the Tribunal’s competence, due to the character of the case and its significance for the proper functioning of the state.

In the Tribunal’s opinion, the legislator does not enjoy full discretion as regards repealing provisions in the situation where a particular issue was previously regulated by statute and the obligation to introduce given norms is expressed in the Constitution.

This primarily refers to provisions that specify mutual relations between constitutional state authorities. The legislator’s repeal of all provisions on determining the existence of an impediment to the exercise of the office by the President of the Poland may not be justified by the fact that Article 131(1) of the Constitution does not specify reasons which could constitute a basis for a motion of the Marshal of the Sejm.

It is in the situations where there is no precise norm specifying substantive-law grounds for a given action that the role of a properly regulated procedure becomes even more important.

XX. The Constitutional Tribunal deemed that Article 3 of the amending Act is consistent with the principle of the protection of justly acquired rights and the principle of the protection of interests that are pending, which arise from Article 2 of the Constitution.

The challenged provision is a transitional regulation which provides that employees of the Tribunal who have been working for over 5 years as legal service professionals involved in work directly linked with the judicial activity of the Tribunal and its judges, may take an examination to be admitted to the profession of judge within the time-limit of 36 months from the date of the entry into force of the amending Act.

The Tribunal deemed that the challenged provision sets a sufficient time-limit for the exercise of the right acquired by the said legal service professionals employed in the Tribunal for over 5 years.

The legislator without any other additional requirements (e.g. the necessity for further employment in the Office of the Tribunal or even further performance of tasks related to the application or enactment of law) set a 3-year time-limit for the Tribunal’s employees who have acquired the right to take judicial examination to make a decision, prepare themselves and take the said examination.

As shown by the legislative process, the challenged provision was provided for by the legislator for the purpose of safeguarding rights acquired by a certain group of the Tribunal’s employees or potential endeavours undertaken under the rule of the Constitutional Tribunal Act and makes completing them possible within a specified time-frame.

XXI. 1. Before commencing the consideration of the present case, the Constitutional Tribunal excluded the application of certain provisions of the Constitutional Tribunal Act after the recent amendments, where the provisions made it impossible to issue a ruling without delay. This concerns the following:

-        the requirement of the participation of at least 13 judges of the Tribunal to adjudicate as a full bench (cf. Art. 44(3));

-        the setting of dates of hearings at which applications are considered in the order in which cases are received by the Tribunal (cf. Art. 80(2));

-        the setting of dates of hearings in cases determined by a full bench of the Tribunal no earlier than after 6 months following the service of the notification of the said dates (cf. Art. 87(2));

-        the requirement that the issuing of full bench rulings of the Tribunal requires a two-thirds majority vote (cf. Art. 99(1));

By bypassing the above regulations in the process of applying the law, the Tribunal did not however determine, at the onset of the proceedings, the validity or constitutionality of the said regulations. The examination of the case revealed that all the enumerated provisions are inconsistent with the Constitution, regardless of the unconstitutionality of the entire amending Act. This means that bypassing those provisions when determining the proper bases of adjudication in the present case did not affect the accuracy of the issued ruling.

 

2. When making reference to the legal effects of the ruling on the unconstitutionality of the amending Act due to the defective procedure for the enactment thereof, the Tribunal stated that as of the date of the publication of the Tribunal’s ruling all legal effects that resulted in the legal system from the amending Act are subject to annulment. In other words, the Tribunal’s ruling which reverses the legal effects caused by the amending Act restores the relevant legal provisions that existed prior to the amending Act. The Tribunal pointed out that the provisions of the Constitutional Tribunal Act of 25 June 2015, with regard to which the presumption of constitutionality was not overturned or even questioned, were replaced by the amending Act, which is inconsistent with the Constitution.

 

Declaring the unconstitutionality of the amending Act and the provisions of the Constitutional Tribunal Act amended thereby creates, at the same time, the necessity to determine the legal bases for further proceedings in cases that were submitted to the Tribunal:

-        before the date of entry into force of the amending Act, i.e. prior to 28 December 2015, as well as

-        from that date, including the period from the entry into force of the said Act and the publication of this ruling, i.e. from 28 December 2015 until 9 March 2016

In accordance with the well-established jurisprudence of the Tribunal and the consistent stance of the doctrine, provisions ruled by the Tribunal to be unconstitutional may not be applied to any situations in the past, the present and the future. Since an effect of the Tribunal’s ruling is a return to the relevant legal provisions that existed prior to the amending Act, then the Constitutional Tribunal Act in the version before the amendments refers to legal situations that exist at the moment of the publication of the Tribunal’s ruling as well as to legal situations that will occur in the future.

 

As regards the first group of cases, the Constitutional Tribunal held that cases received by the Tribunal before the entry into force of the amending Act, i.e. prior to 28 December 2015, should be considered on the basis of the provisions of the Constitutional Tribunal Act that were binding before the entry into force of the amending Act or – in some cases – on the basis of the provisions of the 1997 Constitutional Tribunal Act. This follows from the transitional regulation included in Article 134 in conjunction with Article 139 of the Constitutional Tribunal Act.

 

The second group of cases comprises cases received by the Tribunal after the entry into force of the amending Act, i.e. after 28 December 2015. In accordance with the legislator’s regulation, those cases were to be considered in compliance with rules set out in the amending Act. However, the Tribunal ruled the amending Act to be inconsistent with the Constitution, which caused the annulment of its legal effects. Consequently, this results in restoring the applicability of the provisions of the Constitutional Tribunal Act in the version that was binding before the entry into force of the amending Act. Hence, cases received by the Tribunal after 28 December 2015 until the publication of this ruling as well as cases that will be received after the publication of the said ruling should also be considered on the basis of those provisions.

 

In the light of the above arguments, the effect of this ruling is the lack of the possibility of applying solutions provided for in the amending Act to any cases pending before the Constitutional Tribunal, regardless of the date when they are received by the Tribunal.

 

3. In part II of the judgment in the present case, the Constitutional Tribunal ruled that Article 44(1) of the Constitutional Tribunal Act of 25 June 2015, as amended by Article 1(9) of the amending Act, will cease to have effect after 9 (nine) months from the date of the publication of the judgment. This means that the said provision – despite the overturning of the presumption of constitutionality of the entire amending Act – will constitute a framework for adjudication by the Constitutional Tribunal within the indicated period.

 

4. Pursuant to Article 190(1) of the Constitution, rulings issued by the Tribunal are of universally binding application and are final. Both these attributes characterise the Tribunal’s rulings as of the moment when the rulings are issued; in the case of the Tribunal’s judgments, this occurs as of the moment they are delivered in the courtroom. Then the presumption of the constitutionality of a challenged legal regulation is either confirmed or overturned, which is of relevance for the practice of further application of unconstitutional provisions. However, the provisions deemed unconstitutional by the Tribunal cease to have legal effect on the day when the Tribunal’s judgment is published in the Journal of Laws of the Republic of Poland (Pl. Dziennik Ustaw), which a competent state authority is obliged to do forthwith (Art. 190(2) of the Constitution). Then, we have a situation – as stated in Article 190(3) of the Constitution – where a judgment of the Constitutional Tribunal “takes effect”.

 

In its previous jurisprudence, the Constitutional Tribunal stressed many times that a provision with regard to which the presumption of constitutionality was overturned by a ruling of the Tribunal, but which temporarily remains in the system of law, is subject to application without prejudice to the principle of the direct application of the Constitution (Article 8(2) of the Constitution). The overturning of the presumption of constitutionality is of significance primarily for the Tribunal itself. Indeed, the Tribunal is ex officio obliged to respect its own rulings as final and universally binding.

 

This is also of relevance to courts, as organs of state authority that apply the law, which may not bypass rulings issued by the Tribunal, also before provisions ruled to be unconstitutional formally cease to have effect. The Constitutional Tribunal is in a special way bound by the said principle of the direct application of the Constitution, as the legislator deemed that the judges of the Constitutional Tribunal are subject only to the Constitution. For that reason, until the relevant provisions cease to have effect as a result of the publication of this judgment in the Journal of Laws, the Tribunal is obliged, in its further judicial activity, to bypass the statutory provisions with regard to which the presumption of constitutionality has been overturned by this judgment.

 

The final and universally binding character of this judgment (Art. 190(1) of the Constitution) means that, in the light of the Constitution, it may not be effectively challenged by other state authorities. By contrast, the said authorities are obliged to execute and respect the judgment. At the same time, it should be stressed that the said judgment does not eliminate a possibility of introducing statutory changes by the legislator within the scope of the organisation and review procedures of the Tribunal. However, the said modifications must fall within the ambit provided by the Constitution.

 

The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat.