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Excerpts from the application lodged with the Constitutional Tribunal by the First President of the Supreme Court of Poland (case K 47/15)

The First President of the Supreme Court, in her application of 29 December 2015, raised the following allegations:

“On the basis of Article 191(1)(1) in conjunction with Article 188(1) of the Constitution of the Republic of Poland, in conjunction with Article 13(1) of the Supreme Court Act of 23 November 2002 (consolidated text: Journal of Laws – Dz. U. of 2013, item 499, as amended), I request the Tribunal to determine that:

1.     Article 10(1), Article 44(1)(1), Article 44(3), Article 80(2), Article 87(2), and Article 99(1) of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. item 1064, with amendments) – as amended by Article 1, points 3, 9, 10, 12 and 14, of the Act of 22 December 2015 amending the Constitutional Tribunal Act (Journal of Laws – Dz. U. item 2217) as well as Article 2 of the amending Act are inconsistent with Article 10(2) and Article 173 of the Constitution of the Republic of Poland in conjunction with the Preamble, Article 2 and Article 45(1) of the Constitution, due to the fact that the challenged provisions regulate a public institution in a way which hinders its diligent activity and effective functioning, thus infringing the principle of a state ruled by law within the scope of constitutional review conducted by the Constitutional Tribunal and the principle that the legislator is to act in a rational way;

2.        Article 28a, Article 31a, and Article 36 of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. item 1064, with amendments) – as amended by Article 1, points 5, 7 and 8, of the Act referred to in point 1 above – are inconsistent with Article 10(1), Article 173 and Article 195(1) in conjunction with Article 8(1) of the Constitution;

3.        Article 8(4), Article 28a, Article 31a, Article 36(1)(4), Article 36(2) of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. item 1064, with amendments) – as amended by Article 1, points 2, 5, 7, and 8, of the Act referred to in point 1 above – are inconsistent with Article 119(1) of the Constitution;

4.     Article 5 of the Act of 22 December 2015 amending the Constitutional Tribunal Act (Journal of Laws – Dz. U. item 2217) is inconsistent with Article 2 in conjunction with Article 8 and Article 188 of the Constitution.

At the same time, on the basis of Article 8(2) and Article 188 of the Constitution of the Republic of Poland, I request the Tribunal to issue a ruling with regard to this application on the basis of the provisions of the Constitutional Tribunal Act of 25 June 2015 in the version prior to the amendments introduced by the challenged Act of 22 December 2015 amending the Constitutional Tribunal Act (Journal of Laws – Dz. U. item 2217) – hereinafter: the amending Act.

I authorise Prof. dr hab. Małgorzata Wrzołek-Romańczuk, legal adviser, to be the representative before the Constitutional Tribunal.”

Justification for this application

l. General remarks

“(…) The work on the amending Act was carried out in conditions that did not comply with the constitutional and procedural standards of legislative proceedings, and in particular with the provisions of the Preamble to the Constitution, in the light of which laws ‘should be based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities’. (…) Introducing amendments to the Constitutional Tribunal Act in undue haste, amidst chaotic polemics, with the conviction that the Tribunal will block reforms planned by the new government elected in the course of parliamentary elections, without any consultation with non-governmental organisations and experts, is inconsistent with the principles of the legislative process which should be applied in a democratic state ruled by law.”

2. The dysfunctional character of the amending Act

“Despite claims made by its authors, the amending Act does not improve the functioning of the Constitutional Tribunal. On the contrary, legal solutions introduced therein are inconsistent with the principle of diligence and efficiency in the work of public bodies, expressed in the Preamble to the Constitution, and the principle that the legislator is to act in a rational way (Article 2 of the Constitution); thus, they limit the constitutional right to a fair trial, which is in particular realised in the right to file a constitutional complaint and by the legal institution of questions of law referred to the Tribunal. (…)What is not conducive to enhancing the efficiency of the functioning of the Constitutional Tribunal is Article 10(1) of the Constitutional Tribunal Act in the amended version. Pursuant to that provision, the General Assembly of the Tribunal adopts resolutions by at least a two-thirds majority vote in the presence of no fewer than 13 judges of the Tribunal. Consequently, the said Assembly may not be able to pass certain resolutions due to the lack of a required majority as well as due to the lack of the required quorum. Within the meaning of Article 44(3) of the Act, challenged in this application, the issuing of a full bench ruling requires the panel of at least 13 judges of the Tribunal. This implies a considerable slowdown in the work of the Tribunal as regards issuing rulings, especially that in accordance with Article 99(1), which constitutes the subject of the allegation, full bench rulings of the Tribunal are determined by a two-thirds majority vote. Since, within the meaning of Article 44(1)(1) of the Act, a full bench of the Tribunal is to adjudicate within the basic scope of the constitutional review of law (with the exception of cases commenced by constitutional complaints or questions of law, where the required number of judges adjudicating on a given case is seven), then the pace of the Tribunal’s work will slow down – on the one hand, due to the lack of the possibility of referring cases to three adjudicating panels composed of 5 judges and, on the other hand, due to difficulties arising from the requirement of a two-thirds majority vote for issuing a ruling.

The application of the aforementioned provisions will considerable hinder the efficiency of the adjudication process. One may not rule out instances where – due to the lack of the required majority – a ruling will not be issued, which would, in a sense, constitute refusal to resolve a constitutional issue, and would thus result in an infringement of Article 8(1) of the Constitution, pursuant to which the Constitution is the supreme law of the Republic of Poland, and a violation of the right to a fair trial (Article 45(1) of the Constitution).

What also hinders the efficiency of the Tribunal’s activity is Article 80(2) of the Act in the version provided in the amending Act; the said provision stipulates that dates for hearings or sittings of the Tribunal at which applications are considered shall be set in the order of the date they are received by the Tribunal. This provision is strikingly dysfunctional; it may render the Tribunal incapable of reacting in crisis situations, where it may prove necessary to issue a ruling much sooner than on the basis of the order of received applications, e.g. in the case where the Tribunal needs to determine whether or not there exists an impediment to the exercise of the office by the President of the Republic of Poland, or when the Tribunal is faced with resolving a dispute over powers.

A slowdown in the activity of the Tribunal, which will be significantly disadvantageous to those lodging applications or constitutional complaints, will be caused by Article 87(2) of the Constitutional Tribunal Act in the version provided in the amending Act. In accordance with that provision, a hearing may not be held earlier than after the lapse of 3 months as of the day when notification about the date of the hearing is served on participants in proceedings, and as regards cases considered by a full bench of the Tribunal – after the lapse of 6 months. The said provision contradicts the principle of diligence and efficiency in the work of public bodies, if the Tribunal is ready to conduct a hearing, but the Act requires the Tribunal to wait with holding the hearing and issuing a ruling.

(…) it is hard to regard the action of the legislator as rational when, in order to improve the functioning of the Constitutional Tribunal, he introduces legal solutions that can, in fact, considerably undermine the efficiency of that institution, and thus diminish the significance of the Constitution as the supreme law of the Republic of Poland. For this reason, the challenged provisions are inconsistent with the principle that the legislator is to act in a rational way, derived from the principle of a democratic state ruled by law. The legislator’s respect for the principle that in the legislative process the legislator is to act in a rational way constitutes a basis of the legal system.”

3. A violation of the independence of the Constitutional Tribunal and of the decisional autonomy of the judges of the Tribunal

“Challenged in this application, the provisions of Article 28a, Article 31a, and Article 36 of the Constitutional Tribunal Act of 25 June 2015 (Journal of Laws – Dz. U. item 1064, with amendments) – as amended by Article l, points 5, 7 and 8, of the amending Act – contain solutions which are inconsistent with the principle of the separation of powers, expressed in Article 10(1) of the Constitution of the Republic of Poland, within the meaning of which the system of government of the Republic of Poland is based on the separation of and balance between the legislative, executive and judicial powers.

           The distortion of the said balance, by the fact that the President of the Republic of Poland or the Minister of Justice may lodge with the President of the Constitutional Tribunal an application for instituting disciplinary proceedings with regard to a judge of the Tribunal (Art. 28a), undermines the essence of the system based on the separation of powers. This also pertains to vesting the President of Poland or the Minister of Justice with the right to request the General Assembly of the Judges of the Tribunal to lodge an application with the Sejm to recall a judge of the Tribunal from office (Art. 31a). The President of Poland and the Minister of Justice are executive authorities, and with regard to the judiciary, they may only exercise powers granted to them in the Constitution. It should be stressed that the Constitution provides for no powers that could be exercised by the President of Poland or the Minister of Justice with regard to the judges of the Constitutional Tribunal. Specified in amended Article 31a of the Act, the above-mentioned power of the President of Poland or the Minister of Justice is completely discretionary in character, due to the wording ‘in particularly striking instances’, which poses an immanent risk that these authorities may take actions motivated by political considerations, such as, in particular, the lack of acceptance of the Tribunal’s line of jurisprudence on the part of a parliamentary majority and its government.

           What constitutes a distortion of the constitutional balance between the legislature and the judiciary is the fact of entrusting the Sejm with the power to determine the expiry of the mandate of a judge of the Constitutional Tribunal upon application by the General Assembly of the Judges of the Tribunal (Art. 36), and in particular in the case of recalling a judge of the Tribunal from office by the Sejm upon application by the General Assembly. The Constitution does not provide for the dismissal from office of the judges of the Constitutional Tribunal by the Sejm. The newly-introduced legal institution of recalling a judge of the Tribunal from office by the Sejm upon application by the General Assembly entails that the fate of the judge will be dependent on the stance of a parliamentary majority, and this will result in politicising the Constitutional Tribunal. Furthermore, a parliamentary majority in the Sejm also gains a possibility of blocking the Tribunal’s activity in such a way that the said majority may delay the consideration of an application lodged with the Sejm with regard to the expiry of the mandate of a judge of the Tribunal in cases other than the recall of the judge from office.

(…) the challenged provisions of Article 28a, 31a, and 36 of the Constitutional Tribunal Act, in the version provided for in the amending Act, infringe the vital scope of the Tribunal’s jurisdiction, thus limiting the Tribunal’s independence and the decisional autonomy of the judges of the Tribunal.

(…) Thus, the legislator should regulate the legal situation of judges of the Tribunal in such a way that ‘in the performance of their duties, judges could take impartial decisions, following their conscience and being free from any direct or indirect external pressure’, which is related to ‘the prohibition against putting any pressure on judges’. The legal solutions challenged in this part of my application provide for a possibility that a judge of the Tribunal may be pressurised by the President of Poland or the Minister of Justice, due to their powers pertaining to disciplinary proceedings or the recall of the judge from office. The challenged provisions also entail that a judge of the Tribunal will become dependent on the President of the Tribunal, due to the said President’s statutory role in verifying the aforementioned applications. Moreover, the provisions imply the dependency of a judge of the Tribunal on a parliamentary majority in the Sejm, as regards determining the fate of the judge, and they also render the Tribunal – and thus the President and judges of the Tribunal – dependent on the said majority, as it has the power to paralyse the functioning of the Tribunal by delaying the termination of the mandate of a judge of the Tribunal. Consequently, due to undermining the independence of the Tribunal and the decisional autonomy of the Tribunal’s judges, the challenged legal solutions are inconsistent with Article 8(1) of the Constitution, within the meaning of which the Constitution is the supreme law of the Republic of the Republic of Poland.” (…)

 

4. A violation of the principle that the Sejm considers bills in the course of three readings

“At the sitting of the Legislative Committee on 21 December 2015, amendments were proposed with regard to the amending Bill; they considerably exceeded the scope of the amending Bill, which was the subject of the first reading held by the Sejm on 17 December 2015. The said amendments became part of the amending Bill passed by the Sejm on 22 December 2015, which is inconsistent with Article 119(1) of the Constitution, which expresses the principle that the Sejm considers bills in the course of three readings.”

5. The lack of vacatio legis

“Article 5 of the amending Act stipulates that the Act enters into force on the day of its publication. The provision is manifestly inconsistent with Article 2 in conjunction with Article 8(1) and Article 188 of the Constitution of the Republic of Poland, as it deprives the Constitutional Tribunal of the possibility of assessing the constitutionality of the amending Act on the basis of rules that were binding prior to the amendments. Additionally – due to the non-conformity to the Constitution of solutions included in the amending Act – the effect of Article 5 of the Act is that the Constitution ceases to be the supreme law with regard to the Constitutional Tribunal, and the role of the supreme law is assigned to the Act – until it is declared to be inconsistent with the Constitution on the basis of rules laid down in the Act, i.e. in the future. Thus, we have a situation where Article 8(1) of the Constitution is overlooked, which results in the use of law that contradicts the assumptions of the legal system and, consequently, implies the non-conformity of the amending Act to the Constitution. As a result of the lack of vacatio legis, the amending Act, which in a new way regulates the Tribunal’s organisational structure and rules for proceedings before the Tribunal, rules out the possibility of assessing its own conformity to the Constitution on the basis of rules that were binding prior to the introduction of the amendments. Thus, the amending Act exempts itself from the previous scope of the jurisdiction of the Constitutional Tribunal. The said scope comprised all statutes, including those changing the Tribunal’s organisational structure and rules for proceedings before the Tribunal. However, the lack of vacatio legis modifies the said scope in such a way that changes in the Tribunal’s organisational structure and in rules for proceedings before the Tribunal will not be assessed by the Tribunal from the point of view of their conformity to the Constitution. The Tribunal may assess those changes, but only in accordance with rules introduced by the amendments. This means a violation of Article 188 of the Constitution, which does not provide for exclusion from the scope of the Tribunal’s jurisdiction of statutes amending the Tribunal’s organisational structure and rules for proceedings before the Tribunal. Indeed, the Constitution does not stipulate that the conformity of that kind of statutes to the Constitution is assessed on the basis of the rules laid down those statutes. Consequently, the lack of vacatio legis causes a change in the scope of the Tribunal’s jurisdiction that is inconsistent with Article 188 of the Constitution. The acceptance of such a solution in the legal system may result in the acceptance of the statute in which the Parliament abolishes a constitutional review without amending the Constitution; however, the unconstitutionality of the said statute may not be determined due to the lack of vacatio legis. Article 5 of the amending Act undermines the supremacy of the Constitution in the legal order.

(…) What follows from the principle of a state ruled by law, expressed in Article 2 of the Constitution, is the necessity to provide for an appropriate date of the entry into force of a statute so that the addressees of the statute will not be surprised by new legal regulations and will be able to prepare themselves in an appropriate way for new requirements. Thus, Article 2 of the Constitution is infringed, in particular, by legal solutions included in the amending Act which were not formulated in any public debate and – as it follows from the opinions submitted with relation to the amending Bill, including the opinion of the Supreme Court – which introduce surprising changes with regard to the Constitutional Tribunal, assessed in those opinions as dysfunctional.

(…) Article 5 of the amending Act deprives the Constitutional Tribunal of a possibility of adjusting itself to its new situation which results from radical interference of the legislator in the legal status of the Tribunal, and thus the provision is inconsistent with Article 2 of the Constitution.”

 

6. Consequences of the lack of vacatio legis as regards resorting to the previous provisions for the review of this application

“Article 5 of the amending Act, pursuant to which the Act enters into force on the day of its publication, directly results – as it has been presented above in point 5 of the justification for this application – in overlooking the provisions of the Constitution, and in particular its Article 8(1), in accordance with which the Constitution is the supreme law of the Republic. Since the legislator deprives the Constitutional Tribunal of its capacity to adjudicate with regard to a particular statute – namely, the statute that significantly changes the functioning of the Constitutional Tribunal – then such action taken by the legislator may not be granted protection in a democratic state ruled by law, for it entails overlooking Article 188 of the Constitution. Therefore, the amending Act may not enjoy a presumption of constitutionality as of the moment of its publication in a relevant journal of laws, as this would imply that overlooking the Constitution would be acceptable in the legal order.

In this context, since the provisions of the Constitution – pursuant to its Article 8(2) – apply directly, the Constitutional Tribunal may, on the basis of Article 188 of the Constitution, determine its own competence to adjudicate on the amending Act not in accordance with the provisions of that statute, but in compliance with the previous provisions, regardless of the fact that the application of the previous provisions is ruled out by the amending Act. A way to prevent the serious violation of Article 8(1) in conjunction with Article 188 of the Constitution is to examine this application on the basis of the provisions of the Constitutional Tribunal Act in the version prior to the amendments provided for in the amending Act. Adjusting the functioning of the Constitutional Tribunal to rules provided in a statute which the Tribunal may not assess in respect of its conformity to the Constitution prior to the statute’s entry into force should be deemed inconsistent with the principle of a democratic state ruled by law.”

 

(full text of this application is available in Polish at: http://ipo.trybunal.gov.pl/ipo/Sprawa?&pokaz=dokumenty&sygnatura=K%2047/15)