Trybunał Konstytucyjny

Adres: 00-918 Warszawa, al. Szucha 12 a
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Biuletyn Informacji Publicznej

The Act on the Supreme Court, insofar as it concerns the rules
of procedure for selecting candidates for the position of the First President of the Supreme Court K 3/17

1. On 24 October 2017 at 12:30 p.m., the Constitutional Tribunal issued a judgment in which it declared the unconstitutionality of:

(1) the provisions of the Act on the Supreme Court which authorise the General Assembly of the Judges of the Supreme Court to regulate the procedure for electing candidates for the position of the First President of the Supreme Court by means of an internal legal act (a resolution)

(2) the binding resolution issued by the General Assembly of the Judges of the Supreme Court with regard to the rules of procedure for selecting candidates for the position of the First President of the Supreme Court.

2. In the case of one of the challenged provisions of the Act on the Supreme Court (i.e. Art. 16(1)(3)), the Constitutional Tribunal held that it was consistent with the Constitution.

3. The Tribunal pointed out that fundamental matters pertaining to the political system and the functioning of the state are required to be specified by statute. This refers in particular to the procedure for selecting candidates for the position of the First President of the Supreme Court, as the said President constitutes not only an internal authority of the Supreme Court but also an autonomous constitutional authority.

4. The Tribunal held that the resolution on the rules of procedure for selecting candidates for the position of the First President of the Supreme Court exceeds the admissible scope of the regulation of an internal legal act. In particular, § 8 of the rules of procedure for selecting candidates for the position of the First President of the Supreme Court, in an inadmissible and striking way, modifies the Act on the Supreme Court and the Constitution of the Republic of Poland, by indicating the Chairperson of the General Assembly of the Judges of the Supreme Court as the authority obliged to present the aforementioned candidates, whereas the Constitution requires that this is to be done by the General Assembly of the Judges of the Supreme Court.

5. The effect of the Tribunal’s judgment in the present case is the necessity to take law-making action.

6. Despite taking account of the applicants’ allegations, the Tribunal did not examine the request for the Tribunal to determine the legal effects of its ruling in the present case on situations that emerged before the delivery of the ruling and to state that legal acts adopted on the basis of the unconstitutional regulations were invalid. The Tribunal decided not to do so for the following three reasons:

Firstly, with regard to the rules of procedure for selecting candidates for the position of the First President of the Supreme Court, the Tribunal achieved the same effect, by declaring the unconstitutionality of Article 16(1)(1) of the Act on the Supreme Court as well as the resolution on the rules of procedure for selecting candidates for the position of the First President of the Supreme Court, which had been issued on the basis of the said challenged provision.

Secondly, the Tribunal could not adjudicate on the unconstitutionality of legal acts issued on the basis of Article 16(1)(3) of the Act on the Supreme Court, since the said provision was ruled to be consistent with the Constitution, and – on the basis of that provision – no legal act had been issued; the General Assembly of the Judges of the Supreme Court did not issue a resolution to select candidates for the position of the First President of the Supreme Court and to present them to the President of Poland, which in accordance with the law should have taken place.

Thirdly, the appointment of the First President of the Supreme Court constitutes a prerogative of the President of Poland, and thus it is an act falling outside of the scope of the review powers of the Constitutional Tribunal as well as those of the entire judiciary.

In the last-mentioned context, the Tribunal pointed out that the procedure for selecting the First President of the Supreme Court comprises two stages:

(1) the selection of candidates for the position of the First President of the Supreme Court by the General Assembly of the Judges of the Supreme Court as well as the presentation of the candidates to the President of Poland, and also

(2) the valid appointment of the First President of the Supreme Court by the President of Poland (the act of appointment), which explicitly arises from Article 183(3) of the Constitution.

Each of those stages is regulated by a separate set of legal regulations. The Tribunal declared the unconstitutionality of some of the provisions regulating the first of the above-mentioned stages of the procedure for appointing the First President of the Supreme Court, which the Tribunal is authorised to do within the remit of reviewing legal bases. At this stage, the Tribunal also noticed an actual breach of law by the General Assembly of the Judges of the Supreme Court, namely the names of the aforementioned candidates were presented in a letter of the Chairperson of the General Assembly of the Judges of the Supreme Court, instead of a resolution of the General Assembly of the Judges of the Supreme Court.

Despite the above findings, the Tribunal had no competence to evaluate the second stage of the procedure, i.e. the act of appointment by the President of Poland, as – pursuant to the Constitution – it falls outside the scope of jurisdiction exercised by the Constitutional Tribunal and courts.

7. The Tribunal stressed that the act of appointing the First President of the Supreme Court, the President of Supreme Administrative Court, or the President and Vice-President of the Constitutional Tribunal, is not only directly based on the provisions of the Constitution, but it also has a special character, i.e. it constitutes a prerogative of the President of Poland.

In Polish law, at no level (the Constitution, statutes), there exists a procedure that makes it possible to revoke or review acts issued within the scope of prerogatives exercised by the President of Poland.

This means that the defectiveness of the provisions of the aforementioned Act and of the rules of procedure, as indicated in the operative part of the judgment, as well as the defectiveness of the actual actions of the General Assembly of the Judges of the Supreme Court (i.e. the recognised breach of law at the stage of presenting the President of Poland with candidates for the position of the First President of the Supreme Court), may not affect the validity of the act of appointment that has already been carried out.

The ruling was adopted by a majority vote.

By its decision of 24 October 2017 (ref. no. K 3/17), the Constitutional Tribunal did not grant the request filed by the representative of the General Assembly of the Judges of the Supreme Court to exclude Judge Mariusz Muszyński from the Tribunal’s consideration of the present case.

The hearing was presided over by the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the Judge Rapporteur was the Vice-President of the Constitutional Tribunal, Judge Mariusz Muszyński.