Disabled persons deprived of a possibility of performing the duties of the mayor of a village, town or city K 51/12
4/1/A/2014
JUDGMENT
of 23 January 2014
Ref. No. K 51/12*
In the Name of the Republic of Poland
The Constitutional Tribunal composed of:
Stanisław Biernat – Presiding Judge
Maria Gintowt-Jankowicz
Wojciech Hermeliński
Marek Kotlinowski – Judge Rapporteur
Małgorzata Pyziak-Szafnicka,
Grażyna Szałygo ‑ Recording Clerk,
having considered, at the hearings on 29 October 2013 and 23 January 2014, in the presence of the applicant, the Sejm and the Public Prosecutor-General, an application by the Polish Ombudsman to determine the conformity of:
Article 492(1)(6) of the Act of 5 January 2011 – the Polish Electoral Code (Journal of Laws – Dz. U. No. 21, item 112, as amended), to Article 60 in conjunction with Article 32 of the Constitution as well as with Article 29(a) of the Convention on the Rights of Persons with Disabilities (Journal of Laws – Dz. U. of 2012 item 1169),
adjudicates as follows:
Article 492(1)(6) of the Act of 5 January 2011 – the Polish Electoral Code (Journal of Laws – Dz. U. No. 21, item 112, as amended), construed in the way that it concerns the determination of incapacity for work or independent living after a given person has been elected to hold the office of the mayor of a village, is consistent with Article 60 in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
Moreover, the Tribunal decides:
pursuant to Article 39(1)(1) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws - Dz. U. No. 102, item 643, of 2000 No. 48, item 552 and No. 53, item 638, of 2001 No. 98, item 1070, of 2005 No. 169, item 1417, of 2009 No. 56, item 459 and No. 178, item 1375, of 2010 No. 182, item 1228 and No. 197, item 1307 as well as of 2011 No. 112, item 654), to discontinue the proceedings as to the remainder.
STATEMENT OF REASONS
[…]
III
The Constitutional Tribunal has considered as follows.
1. The subject of the review.
1.1. The subject of the review in the present case is Article 492(1)(6) of the Act of 5 January 2011 – the Polish Electoral Code (Journal of Laws ‑ Dz. U. No. 21, item 112, as amended; hereinafter: the Electoral Code), which reads as follows: “The mandate of the mayor of a village shall expire as a result of (…) the determination of incapacity for work or independent living for a period no shorter than until the end of the term of office, in accordance with a procedure set out in provisions on old-age and disability pensions from the Social Insurance Fund”. The provision is accordingly applicable to the mayors of towns or cities; pursuant to Article 5(6) of the Electoral Code, whenever there is reference to the mayor of a village, this reference is also applicable to the mayor of a town or city.
The expiry of the mandate of the mayors of villages, towns or cities due to the determination of incapacity for work or independent living is determined by a competent electoral officer within the period of 14 days from the day on which the reason for the expiry occurred. The decision of the said electoral officer is published in a voivodeship journal of laws and the Public Information Bulletin, as well as it is forthwith served on the person whom it concerns as well as is sent to a competent voivode and the chairperson of a given communal council. The electoral officer’s decision on the expiry of the mandate in the case of the mayors of villages, towns or cities may be appealed in an administrative court within 7 days after it has been served on the person concerned. The appeal is lodged via the electoral officer as an intermediary.
1.2. The determination of incapacity for work or incapacity for independent living in accordance with a procedure set out in provisions on old-age and disability pensions from the Social Insurance Fund for a period no shorter than until the end of the term of office is one of numerous grounds enumerated in Article 492(1) of the Electoral Code for the expiry of the mandate in the case of the mayors of villages, towns or cities. Apart from the determination of incapacity for work or incapacity for independent living, the expiry of the mandate of the mayors of villages, towns or cities may result from the following: refusal to take an oath of office; failure to file a statement on assets within prescribed time-limits; written renunciation of the mandate; the loss of the right to stand for election or the lack of this right on the election day; breaches of statutory prohibitions against holding the office of the mayor of a village, town or city at the time of holding another office or carrying out economic activity, which have been set out in separate provisions; death; dismissal from the office as a result of a referendum; dismissal caused by recurrent breaches of the Constitution or statutes, or due to a change in the territorial division of the state, as referred to in Article 390(1)(3) of the Electoral Code.
Challenged Article 492(1)(6) should be perceived as an element of the entirety of provisions on the termination of an employment relationship with a person employed on the basis of an election outcome. Pursuant to Article 4(1)(1)(c) of the Act of 21 November 2008 on Local Self-Government Employees (Journal of Laws ‑ Dz. U. No. 223, item 1458, as amended), the mayor of a village, town or city is an employee of local self-government, hired in the office of a given commune on the basis of an election outcome. Any actions within the scope of labour law that need to be taken with relation to the commencement or termination of employment are carried out by the chairperson of a given communal council. An employment relationship based on an election outcome – as stipulated by Article 73(2) of the Act of 26 June 1974 – the Labour Code (Journal of Laws ‑ Dz. U. of 1998 No. 21, item 94, as amended; hereinafter: the Labour Code) ‑ is terminated on the expiry of the mandate; hence, it is necessary to determine grounds for the expiry in a statute.
2. Higher-level norms for the review
2.1. Article 492(1)(6) of the Electoral Code has been challenged by the applicant in the light of two higher-level norms for the review. The first one has been derived from two provisions that are read in conjunction, namely Article 60 in conjunction with Article 32 of the Constitution. The other higher-level norm for the review is Article 29(a) of the Convention on the Rights of Persons with Disabilities (Journal of Laws ‑ Dz. U. of 2012 item 1169; hereinafter: the Convention). When applying the first higher-level norm for the review, the applicant formulates an allegation that there has been an infringement of the principle which stipulates that Polish citizens enjoying full public rights shall have a right of access to the public service based on the principle of equality, due to the fact that it has been made impossible for persons deemed incapable of work or independent living to hold the mandate of the mayor of a village, town or city. In the applicant’s view, “no reasons may be indicated in the present case, on the basis of any other constitutional norms or values, that would justify the different treatment of persons with disabilities, which arises from the provisions of the Electoral Code” (p. 6 of the application). In the context of the second higher-level norm for the review, the applicant formulates the allegation of discrimination against persons with disabilities in social and public life. As the applicant states, “in the challenged provision, the legislator not only made no attempts to equalise the chances of persons with disabilities, but he actually introduced unjustified restrictions” (p. 11 of the application).
2.2. Article 60 of the Constitution provides that all Polish citizens enjoying full public rights shall have a right of access to the public service based on the principle of equality. The term ‘public service’ used in that provision comprises the entirety of positions in the offices of public authorities, including inter alia those ensuing form the elections of local self-government authorities (see the judgment of the Constitutional Tribunal of 8 April 2002, ref. no. SK 18/01, OTK ZU No. 2/A/2002, item 16). Thus, there is no doubt that access to the public service based on the principle of equality also implies access to the offices of the mayors of villages, towns or cities.
However, in the present case, it primarily needs to be considered whether Article 60 of the Constitution at all constitutes an adequate higher-level norm for the review in relation to the challenged legal regulation. Indeed, Article 492(1)(6) of the Electoral Code may only be applied to persons who have already exercised the constitutionally guaranteed right of access to the public service. Indeed, the expiry of the mandate of the mayor of a village, town or city may only be determined with regard to a person who has already acquired the said mandate in the course of general elections. Yet, the applicant argues that the challenged provision makes it impossible for a disabled person to acquire the mandate of the mayor of a village, town or city, even though the said person enjoys passive electoral rights, since on the day following the election of the said person, his/her mandate is subject to expiry. By contrast, in the decision of 11 May 2009, ref. no. SK 37/07 (OTK ZU No. 5/A/2009, item 74), the Constitutional Tribunal stated that Article 60 of the Constitution was an adequate higher-level norm for the review only with regard to a legal regulation concerning the stage of providing access to the public service, and not the subsequent stages of employment in such service. For this reason, the Constitutional Tribunal discontinued the proceedings, stating that: “since the complainant challenges a provision that refers to persons who have already been employed in the public service, her allegations of the violation of equal access to the public service should be deemed groundless”.
Nevertheless, in the present case, the Constitutional Tribunal holds that Article 60 of the Constitution is an adequate higher-level norm for the review. Indeed, access to the public service comprises not only the stage of being admitted to the said service, but also the stage of employment in the service until the moment of leaving the said service. The principle of equality, referred to in Article 60 of the Constitution, should therefore bind both persons who apply for admission to the public service as well as persons who remain in the said service. If one were to assume that Article 60 of the Constitution is not applicable to the latter group, then it should be concluded that the right of access to the public service is illusory in character.
It ought to be noted that such a broad interpretation of the term ‘access to the public service’ exists in the well-established jurisprudence of the Constitutional Tribunal. The Tribunal holds that Article 60 of the Constitution does not only imply a requirement to introduce clear rules for admission to the public service, but also for the same rules to be applied to the discharge from the service. The legislator should, in a way that is uniform for all citizens, regulate both criteria for dismissal from the public service as well as a procedure for taking decisions within that scope (see the judgments of the Constitutional Tribunal of: 14 December 1999, ref. no. SK 14/98, OTK ZU No. 7/1999, item 163 as well as of 10 April 2002, ref. no. K 26/00, OTK ZU No. 2/A/2002, item 18). By contrast, the issue of dismissal from the public service appears in the context of persons who have been admitted to the said service.
2.3. Another issue that needs to be considered in the context of the higher-level norms for the review is that the applicant has assigned an auxiliary character to Article 32 of the Constitution, which he reads in conjunction with Article 60 of the Constitution. Article 32 expresses the principle of equality before the law and a prohibition against discrimination. Hence, a question arises as to whether Article 32 of the Constitution introduces any new content to the higher-level norm for the review in which a dominant role is played by Article 60 of the Constitution. As it has been indicated earlier, it already follows from the latter provision that access to the public service should be guaranteed in accordance with “the principle of equality”.
The question of a relation between Article 32 and Article 60 of the Constitution has been analysed many times in the jurisprudence of the Constitutional Tribunal. In its judgment of 10 May 2000 (ref. no. K 21/99, OTK ZU No. 4/2000 item 109), the Tribunal concluded inter alia that: “Despite a considerable similarity between the two provisions, it needs to be noted that the essence of the right arising from Article 60 of the Constitution does not exhaust – by way of simple confirmation – the principle of equal treatment within the scope of relations linked with access to the public service. Indeed, this guarantee is stronger and more clearly restricts the scope of the legislator’s discretion as regards devising rules for access to the public service”. In its subsequent jurisprudence, the Constitutional Tribunal began to stress that the way of constructing a higher-level norm for review on the basis of Article 32 and Article 60 of the Constitution depended on the circumstances of a given case, and in particular on the subject and scope of allegations. Thus, in every case, the Constitutional Tribunal examines the correctness of the way a given higher-level norm for review is constructed by an applicant.
In some cases, the Tribunal assumed that Article 60 of the Constitution covered allegations formulated with regard to Article 32 of the Constitution by an applicant or complainant initiating a constitutional review of legal provisions, and therefore in the context of the latter provision, the review proceedings were discontinued (see the judgments of the Constitutional Tribunal of: 27 January 1999, ref. no. K 1/98, OTK ZU No. 1/1999, item 3; of 27 May 2008, ref. no. SK 57/06, OTK ZU No. 4/A/2008, item 63; 23 November 2009, ref. no. P 61/08, OTK ZU No. 10/A/2009, item 150). However, it should be emphasised that the Constitutional Tribunal formulated the above view not in the abstract, but after an analysis of allegations raised in a specific case by a subject that initiated review proceedings. To illustrate such a thesis, one may recall a passage from the statement of reasons for the judgment of 23 November 2009, ref. no. P 61/08, in which the Constitutional Tribunal held that: „in fact, all allegations raised with regard to the challenged regulation, in the light of the general principle of equality, ‘are covered by’ allegations concerning an infringement of the principle of equality in the context of access to public offices”.
In previous cases, the Constitutional Tribunal adjudicated on the basis of Article32 and Article 60 of the Constitution, regarding each of them as a separate higher-level norm for review, the content of which was autonomous and vital for a given case in the context of which separate allegations of unconstitutionality had been formulated. Consequently, the Constitutional Tribunal examined a given challenged legal regulation, considering each of the two provisions separately (see the judgments of the Constitutional Tribunal of: 23 March 2010, ref. no. K 19/09, OTK ZU No. 3/A/2010, item 24; of 10 April 2002, ref. no. K 26/00; of 20 April 2004, ref. no. K 45/02, OTK ZU No. 4/A/2004, item 30; of 21 December 2004, ref. no. SK 19/03; OTK ZU No. 11/A/2004, item 118). At the same time, it should be noted that the assessment of a challenged regulation carried out by the Constitutional Tribunal in the light of the two indicated provisions was not always the same. In its judgment of 29 November 2007, ref. no. SK 43/06 (OTK ZU No. 10/A/2007, item 130), the Constitutional Tribunal stated inter alia that Article 2(2)(2) of the Act of 27 July 2001 on the National Council of the Judiciary of Poland (Journal of Laws ‑ Dz. U. No. 100, item 1082, as amended) was “consistent with Article 32(1) of the Constitution” as well as was “inconsistent with Article 60 of the Constitution”. The Tribunal deemed that the provision under review infringed the right of access to the public service based on the principle of equality, as it assigns the National Council of the Judiciary of Poland with the power to regulate matters that are of primary importance from the point of view of the said constitutional right. Also, the Tribunal noted that the provisions challenged in that case, which assigned the National Council of the Judiciary with the power to review and evaluate candidates for judges as well as criteria for assessing nominees in no way differentiated between the candidates, did not provide for or permit such differentiation, as well as they alone did not lead to differentiating the said candidates. Similarly, a different assessment of the subject of the review in the light of Article 32 and Article 60 of the Constitution was carried out by the Constitutional Tribunal in its judgment of 7 May 2002, ref. no. SK 20/00 (OTK ZU No. 3/A/2002, item 29), where it stated that Article 65(1) of the Act of 26 May 1982 – the Law on Advocates (Journal of Laws ‑ Dz. U. No. 16, item 124, as amended) was consistent with Article 32 of the Constitution as well as was not inconsistent with Article 60 of the Constitution. In the said context, the Tribunal stated that the requirement of integrity and a guarantee of the proper fulfilment of professional duties, was applicable to all persons that aspired to be entered in the national register of advocates, and it was consistent with the principle of equality. By contrast, Article 60 of the Constitution was an inadequate higher-level norm for the review, since the profession of advocates did not fall within the scope of the term ‘public service’.
In the present case, as a higher-level norm for the review, the applicant has indicated Article 60 in conjunction with Article 32 of the Constitution. Such a higher-level norm for the review constituted the basis of adjudication by the Constitutional Tribunal in its judgment of 6 November 2012, ref. no. SK 29/11 (OTK ZU No. 10/A/2012, item 120). The Tribunal held inter alia that Article 116 of the Act of 11 September 2003 on the Military Service of Professional Soldiers (Journal of Laws ‑ Dz. U. of 2010 No. 90, item 593, as amended) was consistent with Article 60 in conjunction with Article 32 of the Constitution. However, as it follows from the application that commenced the review proceedings in the present case, the main allegation pertains to discrimination against persons with disabilities within the scope of access to the public service. What constitutes a higher-level norm for the review in the context of an allegation formulated this way is Article 60 of the Constitution. In no way has the applicant justified the auxiliary character of Article 32 of the Constitution; nor has he presented what new content the said provision adds in the context of the above-mentioned allegation of unconstitutionality. For this reason, the Constitutional Tribunal deems that Article 60 of the Constitution should be a higher-level norm for the review, whereas with regard to Article 32 of the Constitution, the review proceedings are subject to discontinuation on the grounds that the issuing of a ruling is useless.
2.4. The other higher-level norm for the review indicated by the applicant is Article 29(a) of the Convention. The said provision requires States Parties to guarantee that persons with disabilities will have political rights and the opportunity to enjoy them on an equal basis with others, as well as require the States to undertake to: (a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; (ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice.
The allegation that Article 492(1)(6) is inconsistent with Article 29(a) of the Convention has been justified in a very laconic way by the applicant. He states that “the challenged provision not only does not guarantee that persons with disabilities will have equal chances in comparison with other citizens to exercise the duties of the mayor of a village (town or city), but some persons with disabilities who are capable of exercising the said duties will be deprived of such a possibility completely. Thus, the current wording of the provision leads to a situation that the Republic of Poland does not implement Article 29(a) of the Convention”. An allegation formulated this way repeats the allegation of unconstitutionality raised in the context of Article 60 of the Constitution. In other words, the applicant has not derived broader content than that arising from the indicated higher-level norm for the review. In such a situation – as stated by the Constitutional Tribunal, in its judgment of 23 November 2009, ref. no. P 61/08 – one should accordingly apply arguments presented by the Constitutional Tribunal in the context of the legitimacy of selecting additional higher-level norms for the review from the Convention for the Protection of Human Rights and Fundamental Freedoms (Journal of Laws ‑ Dz. U. of 1993 No. 61, item 284, as amended; cf. the judgments of the Constitutional Tribunal of: 17 December 2008, ref. no. P 16/08, OTK ZU No. 10/A/2008, item 181; 10 July 2008, ref. no. P 15/08, OTK ZU No. 6/A/2008, item 105; 27 May 2008, ref. no. P 59/07, OTK ZU No. 4/A/2008, item 64; 18 October 2004, ref. no. P 8/04, OTK ZU No. 9/A/2004, item 92) and ought to conclude that separate adjudication about the conformity of the challenged regulation to Article 29(a) of the Convention is useless. Hence, the review proceedings in the context of that higher-level norm for the review has been discontinued on the grounds that the issuing of a ruling is useless.
2.5. The Marshal of the Sejm requests in the present case that the catalogue of higher-level norms for the review be extended to include Article 31(3) of the Constitution, which has not been indicated in the petitum of the Ombudsman’s application or in the statement of reasons for the application. What follows from the written arguments submitted by the Marshal of the Sejm is that in the light of the said provision, an allegation is raised as to an infringement of the principle of equality, in particular, as regards a regulation indicated in Article 492(1)(6) of the Electoral Code for the purpose set by the legislator.
At the hearing, the representative of the applicant stated that: “although Article 31(3) of the Constitution is not indicated in the petitum of the Ombudsman’s application, it is undeniable that the application thereof arises from the entirety of arguments presented by the Ombudsman”. Consequently, the representative of the applicant agreed with the view put forward by the Sejm that the challenged provision was inconsistent with Article 60 in conjunction with Article 31(3) of the Constitution.
The Tribunal deems that the said way of specifying a higher-level norm for review in greater detail is admissible in the present case. Article 492(1)(6) of the Electoral Code restricts the constitutional right of access to the public service, and such a restriction needs to meet the requirements set out in Article 31(3) of the Constitution, including the requirement of proportionality.
2.6. To sum up the above discussion, it needs to be concluded that the proper higher-level norm for the review in the present case is Article 60 in conjunction with Article 31(3) of the Constitution, whereas the review proceedings within the scope of Article 32 of the Constitution and Article 29(a) of the Convention should be discontinued on the grounds that issuing a ruling is useless.
3. Incapacity for work and incapacity for independent living
3.1. In the present case, the reconstruction of the entire normative content of Article 492(1)(6) of the Electoral Code requires an analysis of the provisions of the Act of 17 December 1998 on Old-Age and Disability Pensions from the Social Insurance Fund (Journal of Laws ‑ Dz. U. of 2013 item 1440, as amended; hereinafter: the Act on Old-Age and Disability Pensions from the Social Insurance Fund), to which Article 492(1)(6) makes reference within the scope of determining incapacity for work and incapacity for independent living.
The term ‘incapacity for work’ in the Act on Old-Age and Disability Pensions from the Social Insurance Fund was defined for the primary purpose of determining the right to a disability pension granted due to incapacity for work. Pursuant to Article 57 of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, the said disability pension is granted to a person who is incapable of work, meets requirements as regards contributory and non-contributory periods, and his/her incapacity for work occurred during periods specified by statute. A person who meets those requirements is entitled to a permanent disability pension, if the said incapacity for work is permanent, or a temporary disability pension – if the said incapacity for work is temporary in character. Moreover, a person entitled to a disability pension due to incapacity for work, for whom it would be appropriate to retrain due to incapacity for work in her/his current job, is also eligible for a disability pension granted for a period of 6 months with a possibility of extending that period for as long as necessary until a retraining process is completed, but no longer than by 30 months. Incapacity for work and incapacity for independent living may also make one eligible for other benefits provided for in the Act on Old-Age and Disability Pensions from the Social Insurance Fund, such a family benefit and care allowance. A disability pension due to incapacity for work – as the term suggests – is granted when there is no possibility of undertaking employment because of incapacity for work that has been determined, which may, though does not have to, be linked with incapacity for independent living.
3.2. The term ‘incapacity for work’ is defined in Article 12 of the Act on Old-Age and Disability Pensions from the Social Insurance Fund. In accordance with that provision, a person incapable of work is someone who has suffered complete or partial loss of his/her ability to carry out economic activity, due to bodily impairment and does not have prospects of regaining his/her capacity for work after a retraining process. Bodily impairment alone does not suffice as a ground for determining incapacity for work. It is also necessary to determine that, due to the impairment, a given person has lost his/her ability to carry out economic activity and there are no prospects that s/he will regain the said ability after a retraining process. The statute differentiates between two types of incapacity for work: total and partial. A person who is totally incapable of work is a person that has lost his/her ability to perform any work, whereas a person who is partially incapable of work is someone who has to a large extent lost his/her ability to perform work which is consistent with the level of his/her qualifications. When assessing the degree of and an estimated period of incapacity for work as well as prospects of regaining capacity for work, the following is considered: the extent of bodily impairment and a possibility of regaining basic physical and mental capacity by means of medical treatment and rehabilitation, as well as a possibility of performing current work or taking up another kind of work as well as the usefulness of professional retraining, taking account of the current work, the level of education, age and psycho-physical predisposition. In principle, incapacity for work is determined for 5 years, unless in accordance with medical knowledge, there are no prospects of regaining capacity for work before the lapse of that period. In the last-mentioned case, incapacity for work is determined for a longer period than 5 years. However, if a person who is eligible to apply for a disability pension due to incapacity for work, for at least 5 years prior to the date of medical examination, needs fewer than 5 years to attain retirement age, in the case of the further determination of incapacity for work, it is stated that the person is incapable of work until the day when s/he attains the said age. Detailed rules and procedure for determining incapacity for work are set out in the Regulation of 14 December 2004 issued by the Minister of Social Policy with regard to determining incapacity for work (Journal of Laws ‑ Dz. U. No. 273, item 2711, as amended). As it follows from § 6(2) of the Regulation, a person who is incapable of work and with regard to whom a medical statement determining the said incapacity has been issued may always file an application for examination to be conducted to change the previously assessed degree of incapacity for work. Different degrees of incapacity for work may be identified in the case of determining partial incapacity for work; the filing of the above application may result in determining that a given applicant has full capacity for work, as well as that his/her capacity for work matches his/her qualifications.
In the case of determining bodily impairment to the extent which necessitates constant or long-term care and assistance provided by another person to meet the basic life needs of a person in question, it is stated that the person concerned is incapable of independent living. The said incapacity is not directly linked with incapacity for work; for the determination of the first incapacity, it is only relevant to determine bodily impairment to the extent that it is necessary to provide constant or long-term care and assistance of another person to meet the basic life needs of a person with disability. Thus, it is obvious that a person who is incapable of independent living, i.e. is unable to meet his/her own basic life needs, is also incapable of work. It should be added that such an interpretation of the term ‘incapacity for independent living’ is also confirmed by Article 4(4) of the Act of 27 August 1997 on the Occupational and Social Rehabilitation as well as Employment of Persons with Disabilities (Journal of Laws ‑ Dz. U. of 2011 No. 127, item 721, as amended; hereinafter: the Act on Rehabilitation). The said provision also defines incapacity for independent living as the extent of bodily impairment that makes it impossible for a person to meet his/her own basic life needs without any assistance from other people, which above all include self-care, mobility and communication.
The assessment of incapacity for work, the degree thereof, the determination of the occurrence of such incapacity as well as the duration thereof, the estimated period of incapacity for independent living, and a causal relation to certain circumstances, the severity and duration of an estimated period of incapacity for independent living as well as the usefulness of retraining are determined in a medical statement prepared by a medical expert from the Social Insurance Institution. A person concerned may challenge the medical statement before a medical committee of the Social Insurance Institution. By contrast, with regard to a determination issued by the medical committee, the person in question has the right to appeal the determination before a court; the said appeal is filed via a regional unit of the Social Insurance Institution.
An analysis of the above legal regulation leads to the conclusion that, within the meaning of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, incapacity for work may be graded. Firstly, it may be determined as partial incapacity for work, which implies considerable loss of capacity to work in accordance with the level of one’s acquired qualifications. Consequently, a person who is partially incapable of work is able to work, but work that s/he may perform usually does not match the level of this person’s qualifications. For this reason, with regard to a person who is incapable of doing his/her current job, it may be deemed that the person should retrain and hence a training allowance may be granted (Article 60 of the Act on Old-Age and Disability Pensions from the Social Insurance Fund). A person who is partially incapable of work may apply for a change of the degree of incapacity for work. Secondly, incapacity for work may become total incapacity for any work, which entails that a given person is unable to do his/her current job or any other. Thirdly, total incapacity for work may take on an even more severe form when it is linked with incapacity for independent living. Such a person is not only unable to take up any employment, but also s/he cannot meet his/her own basic life needs and within that scope needs constant or long-term care and assistance provided by another person.
3.3. Pursuant to Article 13(4) of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, maintaining capacity for work in conditions specified in provisions on occupational and social rehabilitation as well as on the employment of persons with disabilities does not constitute an obstacle to determining total incapacity for work. Such a proviso stems from totally different purposes which underlie the Rehabilitation Act. Disability deemed on the basis of the said Act does not guarantee a right to obtain benefits due to incapacity for work, but makes it possible to establish the right to use discounts and other entitlements that are granted to a given person on the basis of separate provisions. This comprises discounts for public transportation fares, discounts for telecommunications services, exemption from payments for radio and television licences as well as the right to obtain a certain parking card which exempts from compliance with some traffic signs. Thus, disability within the meaning of the Rehabilitation Act is not determined in terms of incapacity for work, and – in accordance with the said Act – the category of persons with disabilities may include: persons deemed incapable of work as well as persons who have capacity to work. Moreover, a prerequisite for assigning a person with one of the three degrees of disability, enumerated in the Rehabilitation Act, i.e. severe, moderate or slight disability, is not incapacity for work. A severe or moderate degree of disability is ascertained with regard to persons who may work in the conditions of supported employment, whereas a slight degree of disability regards persons who are capable of work, although to a considerably lesser extent than a mentally and physically unimpaired person with similar qualifications. Furthermore, it should be noted that the Rehabilitation Act, as its title may suggest, regulates matters pertaining to “occupational and social rehabilitation as well as the employment of persons with disabilities”, i.e. issues related to the occupational activity of the said persons, and not their lack of activity ensuing from their incapacity for work. In other words, the Rehabilitation Act links the determination of a degree of disability with capacity for work, and not with incapacity for work within the meaning of provisions on disability pensions, and also with a possibility of fulfilling social roles as an element of the individual’s participation in social life. For these very reasons, in accordance with the Rehabilitation Act, persons who are totally incapable of work still retain capacity for work in conditions specified in the Act, i.e. in the conditions of supported employment and in establishments promoting professional activity. In addition, pursuant to Article 4(5) of the Rehabilitation Act, determining that a given person has a severe or moderate degree of disability does not rule out a possibility that the person may be hired by an employer that does not provide the conditions of supported employment, if the employer adjusts the workplace to the needs of the disabled person or permits working from home.
Consequently, the term ‘incapacity for work’ within the meaning of the Act on Old-Age and Disability Pensions from the Social Insurance Fund is not equivalent to the term ‘disability’ within the meaning of the Rehabilitation Act. Pursuant to Article 2(10) of the Rehabilitation Act, disability means permanent or temporary incapacity to fulfil social roles due to permanent or long-term bodily impairment, in particular when this results in incapacity for work. Within the meaning of the Rehabilitation Act, what determines disability is incapacity to fulfil social roles due to bodily impairment, which may, though does not have to, result in incapacity for work. In other words, every person who is incapable of work within the meaning of the Act on Old-Age and Disability Pensions from the Social Insurance Fund is also a disabled person under the Rehabilitation Act; however, not every person who is disabled is incapable of work. Such a relation between disability and incapacity for work is also indicated by Article 5 of the Rehabilitation Act, which determines the “equivalence” of medical statements on incapacity for work and incapacity for independent living, issued on the basis of the provisions of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, to medical statements on a degree of disability that are issued on the basis of the Rehabilitation Act. In accordance with the said provision, a medical statement which determines a severe degree of disability should be regarded as equivalent to a medical statement on total incapacity for work and incapacity for independent living as well as a medical statement on incapacity for independent living. What should be deemed equivalent to a medical statement about a moderate degree of disability is a medical statement which determines total incapacity for work, but not incapacity for independent living; by contrast, a medical statement on a slight degree of disability is equivalent to a medical statement on partial incapacity for work. The said “equivalence” does work the other way round, i.e. having been granted a medical statement on a degree of disability does not determine total or partial incapacity for work and does not make one eligible to receive a disability pension due to incapacity for work.
The view in accordance with which the term ‘disability’ may not be deemed equivalent to the term ‘incapacity for work’ may be regarded as well-established and well-known also in the jurisprudence of courts. The Supreme Court has many times emphasised that “in the light of the binding law, there are no grounds for regarding the said terms as equivalent, or alternatively for negating that there are any differences between them. Differences may be observed both at the level of definitions (the term ‘incapacity for work’ included in the Act on Old-Age and Disability Pensions from the Social Insurance Fund differs from the term ‘disability’ included in the Act on the Occupational and Social Rehabilitation of Persons with Disabilities), as well as within the scope of determining any of the said conditions. They also constitute grounds for granting different kinds of benefits” (see the judgments of the Supreme Court of: 20 August 2003, ref. no. II UK 386/2002, OSNP No. 12/2004, item 213 as well as 15 February 2005, ref. no. II UK 154/2004; LexPolonica No. 1355096). Additionally, the Supreme Court assumes that “disability means not only bodily impairment, but also difficulty, limitation or the lack of possibility as regards the fulfilment of social roles, which constitutes an element of the individual’s participation in social life” (the judgment of 20 August 2003, ref. no. II UK 386/2002).
To sum up the above findings, it ought to be stated that the terms ‘incapacity for work’ and ‘incapacity for independent living’ are not equivalent to the term ‘disability’. Reference made in Article 492(1)(6) of the Electoral Code to the provisions of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, which describe a procedure for determining incapacity for work and independent living, is not reference made to the provisions of the Rehabilitation Act concerning the procedure for determining a degree of disability. Thus, challenged Article 492(1)(6) of the Electoral Code does not constitute a basis for the expiry of the mandate of every disabled mayor of a village, town or city. It may only be such a basis in the case of a mayor who was deemed incapable of work or independent living in accordance with the Act on Old-Age and Disability Pensions from the Social Insurance Fund for a period no shorter than until the end of the term of office.
4. The scope of the regulation of Article 492(1)(6) of the Electoral Code.
4.1. Before examining the constitutionality of Article 492(1)(6) of the Electoral Code, the Tribunal considers it necessary to determine the group of persons to whom the challenged provision applies. The said issue is indeed disputable among the participants in these review proceedings, as they present two different ways of interpreting the said provision.
What follows from the statement of reasons for the application that has initiated the review proceedings in the present case is that it was based on a complaint lodged with the Polish Ombudsman by a citizen who had been granted “a medical statement on disability indicating incapacity for work”, and who had been informed by an electoral officer that in the event of his election, his mandate would be subject to expiry on the first day of the term of office. Agreeing with such an interpretation of Article 492(1)(6) of the Electoral Code, the Ombudsman concluded that: “the challenged norm has made it impossible for persons with disabilities to hold offices in local self-government. In a democratic state ruled by law, it is inadmissible to have a situation where some citizens enjoy illusory passive electoral rights, and this is the case with persons who have been deemed incapable of work, in a medical statement, and who stand for election to the office of the mayor of a village” (p. 10 of the application). Thus, in the applicant’s opinion, the unconstitutionality of Article 492(1)(6) of the Electoral Code lies in the possibility of applying the said provision not only to the mayors of villages, but also to persons who stand for election to the said office. The Ombudsman argues that the determination of incapacity for work or incapacity for independent living with regard to candidates in the said elections prevents them from taking up the office of the said mayors, if at the time of their election – on the basis of Article 492(1)(6) of the Electoral Code – their mandate is subject to expiry. The same interpretation of the challenged provision is presented by the Sejm, which was confirmed by its representative at the hearing.
By contrast, a different way of interpreting the scope of the regulation in Article 492(1)(6) of the Electoral Code was presented by the representative of the Public Prosecutor-General at the hearing; he stated that the said provision was not applicable to persons who were candidates standing for election to the office of the mayor of a village and who had been issued a medical statement of incapacity for work or incapacity for independent living. Thus, there is no need to deem that the mandate of those persons expires after they are elected as mayors of villages. In the view of the Public Prosecutor-General, Article 492(1)(6) of the Electoral Code applies only to mayors in office, with regard to whom incapacity for work or incapacity for independent living is determined during their term of office.
4.2. An interpretation of a given provision may not result in assigning the provision with content that would be contrary to its wording, and above all it must take account of rational action on the part of the legislator. For these reasons, the Constitutional Tribunal wishes to begin the process of determining the group of persons to whom Article 492(1)(6) of the Electoral Code applies, by arriving at a linguistic interpretation of the provision; next the Tribunal will provide other interpretations thereof.
Article 492(1)(6) of the Electoral Code reads as follows: “The mandate of the mayor of a village shall expire as a result of (…) the determination of incapacity for work or independent living for a period no shorter than until the end of the term of office, in accordance with a procedure set out in provisions on old-age and disability pensions from the Social Insurance Fund”. The literal wording of the said provision indicates that it applies to ‘the mayor of a village’, although the legislator has not explicitly specified at which point the mandate is acquired by a person elected to hold the said office. Pursuant to Article 29a(1) of the Act of 8 March 1990 on the Self-Government of Communes (Journal of Laws ‑ Dz. U. of 2013 item 594, as amended; hereinafter: the Self-Government of Communes), assuming the duties of the mayor of a village will take place only at the moment of taking the oath of office. Refusal to take the oath of office is one of the grounds for the expiry of the mandate (Article 492(1)(1) of the Electoral Code), which in turn leads to the conclusion that the mandate of the mayor of a village is acquired before the said oath, and regardless of the fact whether the said oath has been taken. It should be noted that among the grounds for the expiry of the mandate of the mayor, a ground that may emerge first with regard to a person elected to hold the office is the ground specified in Article 492(1)(4) of the Electoral Code, i.e. the lack of a possibility to stand for election on the election day. Since the said ground justifies the expiry of the mandate of the mayor of a village, then it should be concluded that the said mandate is acquired on the election day. Article 492(1)(6) of the Electoral Code is applicable to a person elected as the mayor of a village; the said provision stipulates that the mandate of the mayor expires if the mayor is deemed incapable of work or independent living for a period no shorter than until the end of the term of office.
However, the scope of Article 492(1)(6) of the Electoral Code does not comprise candidates in elections for mayors of villages, irrespective of the fact whether subsequently they are elected or not. The assumption that the legislator first allows a person deemed incapable of work or independent living to stand for election to the office of the mayor of a village, and then he declares the expiry of the mandate right after the said person is elected contradicts the principle that the legislator acts in a rational way. Indeed, this would entail wasting funds, misleading voters and candidates as well as risking that a local self-government community would need to repeat the electoral procedure. The interpretation of Article 492(1)(6) of the Electoral Code, based on the assumption that the said provision concerns only a person deemed incapable of work or independent living after s/he has been elected as the mayor of a village, also takes account of the expectations of the members of a local self-government community that voted for the said person. If voters are aware that a given candidate for the office of the mayor of a village has been deemed incapable of work or independent living, but they still decide to vote for him/her anyway, they express a conviction that the said person will be able to appropriately perform his/her duties and the legislator should respect that choice, hence the mandate of the said person may not be subject to expiry. However, if voters cast their votes for a person who is capable of work, but a medical statement of incapacity for work or independent living is issued after the person has been elected to the office of the mayor of a village, then the expiry of the mandate of the said person may not be regarded as contrary to the will of persons who voted for the said person.
At the stage of standing for election to the office of the mayor of a village, it is not required that a candidate be capable of work and independent living. Such information is not included in an application for candidates and other submissions filed by them (cf. Article 479 of the Electoral Code). A medical statement of incapacity for work or independent living in the case of a candidate for the office of the mayor of a village does not constitute a ground for deleting the person from the list of candidates by a communal electoral commission (cf. Article 483 of the Electoral Code). Thus, one may not speak of barring access to the public service in the case of a person incapable of work or independent living at the stage of election to the office of the mayor of a village. Consequently, a person who has been deemed incapable of work or independent living, in a medical statement, may be effectively elected to the office of the mayor of a village. However, a prerequisite for her/his commencement of the term of office – pursuant to Article 229(1)(1) of the Labour Code – is the requirement to undergo preliminary medical examination that will end in issuing a medical statement on the lack of any obstacles to perform the duties of the mayor of a village, town or city. Pursuant to Article 229(4) of the Labour Code, the employer may not allow an employee to work if the employee does not have a current medical certificate of being capable to perform work in a given position. In the light of Article 26(1)(6) of the Act of 20 June 2002 on direct elections to the office of the mayor of a village, town and city (Journal of Laws ‑ Dz. U. of 2010 No. 176, item 1191, as amended; hereinafter: the Act on direct elections to the office of the mayor of a village, town and city), in the doctrine of law it has been stated that “a medical statement of incapacity for work (…) is not binding for a medical practitioner who is to carry out preliminary medical examination. Therefore, it is not ruled out that in the case of a person deemed permanently incapable of work in a medical statement issued with relation to eligibility for old-age and disability benefits, there are no obstacles to employing that person as the mayor of a village” (A. Kisielewicz, comment 6 on Article 26, [in:] K. Czaplicki, B. Dauter, A. Kisielewicz, F. Rymarz, Samorządowe prawo wyborcze. Komentarz, Warszawa 2010, p. 603). Although the said conclusions were drawn in the light of a legal regulation which was previously binding, they remain still valid in the context of Article 492(1)(6) of the Electoral Code, which has been challenged in the present case. It should be added that in the course of performing duties, mayors as employees undergo medical examination (periodic health checks) to determine whether they are fit for work. Thus, their ability to work is subject to constant verification.
To sum up the above discussion, it needs to be stated that challenged Article 492(1)(6) of the Electoral Code is applicable to persons elected as mayors of villages, and accordingly – in view of the wording of Article 5(6) of the said Code – to persons elected as mayors of towns or cities. The provision is not applicable to candidates for those offices.
4.3. Another matter that needs to be clarified before reviewing the constitutionality of Article 492(1)(6) of the Electoral Code is to determine whether every medical statement of incapacity for work or independent living which has been issued with regard to a person elected as the mayor of a village results in the expiry of the mandate acquired on the election day. The narrowing down of the category of medical statements which justify recourse to the procedure set out in the challenged provision arises from the content thereof. Article 492(1)(6) in fine of the Electoral Code stipulates that a ground for the expiry of the mandate of the mayor of a village is not every medical statement of incapacity for work or independent living, but only a medical statement which determines that the said capacity will persist for “a period no shorter than until the end of the term of office”. This entails that medical statements of incapacity for work or independent living issued, after a given person is granted the mandate, for a period shorter than until the end of the term of office will not constitute a ground for the expiry of the mandate.
However, the subject of the dispute between the participants in these review proceedings amounts to the question whether a ground for the expiry of the mandate is a medical statement of incapacity for work or independent living issued after the acquisition of the mandate of the mayor of a village (town or city) or perhaps also by a medical statement issued prior to election to the said office. The first view was expressed by the representative of the Public Prosecutor-General, whereas the second one – by the representatives of the applicant and the Sejm.
The linguistic and systemic interpretation of Article 492(1)(6) of the Electoral Code has led the Tribunal to adopt the first stance. This is justified by the following arguments:
Firstly, Article 492(1)(6) of the Electoral Code correlates the expiry of the mandate of the mayor of a village with the issuance of a medical statement of incapacity for work or independent living”, and not with the result of that action i.e. the existence of incapacity for work or independent living, determined by the medical statement. Thus, what constitutes a ground for the expiry of the said mandate is not the fact that one has a medical statement of incapacity, issued at a given date, by the actual determination of the said incapacity by a medical expert from the Social Insurance Institution, alternatively by a medical committee of the said Institution. It should be noted that such an interpretation of ‘the determination of incapacity’ is used in the Act on Old-Age and Disability Pensions from the Social Insurance Fund. Article 13(2) and (3) thereof stipulates that “incapacity for work is determined for a period (…)”. Thus, the action of issuing a medical statement of incapacity for work has been described as ‘determining’. Consequently, there should be no doubt that Article 492(1)(6) of the Electoral Code concerns the said action, and not the result thereof in the form of incapacity for work or independent living, determined by a medical statement. Since the action of determining incapacity for work or independent living constitutes a ground for the expiry of the mandate of the mayor of a village, then it must occur after the acquisition of the said mandate. Thus, the determination of such incapacity prior to the election day falls outside the scope of the regulation of Article 492(1)(6) of the Electoral Code.
Secondly, Article 492(1)(6) of the Electoral Code sets a certain time-limit which is vital from the point of view of commencing the procedure for the expiry of the mandate of the mayor of a village. What follows therefrom is that a ground for the expiry of the said mandate is the determination of incapacity for work or independent living for a period “no shorter than until the end of the term of office”. Indeed, since a period of incapacity referred to in the said provision has been linked with the period of the term of office assigned for the mayor of a village, then a rational interpretation is only such an interpretation which assumes that the said incapacity is determined only after a given mayor commences his/her term of office, i.e. when the end date of the term of office is known. One may not construe the premiss specified in Article 492(1)(6) of the Electoral Code in the way that a medical statement of incapacity for work or independent living issued prior to the commencement of the term of office justifies the expiry of the mandate of the mayor of a village. At the moment of the issuance of the said medical statement it may not be deemed whether it may constitute a ground for the expiry of the mandate of the said mayor, as it is not known whether the addressee of the medical statement will be elected to the office of the mayor of a village or not, and – in the case of the election – whether the scope ratione temporis of the stated incapacity will overlap with the term of office of the mayor of a village. Moreover, it would not be rational if the legislator correlated the effects of the medical statement of incapacity for work or independent living, issued prior before the mayor of a village commences his/her term of office, with the end of the said term. These reasons lead to the conclusion that the determination of incapacity for work before the said mayor commences his/her term of office does not constitute a ground for the expiry of the mandate.
Thirdly, as Article 492(2a) of the Electoral Code stipulates, the expiry of the mandate of the said mayor, due to the determination of incapacity for work or independent living, is determined by an electoral officer within the time-limit of 14 days from the occurrence of a reason for the expiry of the mandate. Since the time-limit for determining the expiry of the mandate of the said mayor is counted from the date when a ground for the expiry of the mandate occurs, i.e. the date of issuing a medical statement of incapacity for work or independent living with regard to the mayor of a village, then the said time-limit should begin to run after the commencement of the term of office of the mayor. The determination of incapacity for work or independent living prior to the election of a given person to hold the office of the said mayor could not trigger the run of the 14-day time-limit that is provided for an electoral officer to determine the expiry of the mandate, as such a reason occurs only after the person has been elected to hold the office of the mayor. As it has already been indicated above, Article 492(1)(6) of the Electoral Code is applicable to the mayor of a village, and not to a candidate for election to the office of the mayor.
Fourthly, in Article 492(1)(6) of the Electoral Code, the legislator has established a cause-and-effect relation which implies that the expiry of the term of the said office occurs “as a result of” determining incapacity for work or incapacity for independent living. In other words, the expiry of the mandate is to result from the determination of the said incapacity by a medical expert from the Social Insurance Institution (a medical committee of the said Institution). If the incapacity is determined before a given person is elected, then the action may not result in the expiry of the mandate, as the person has not yet acquired the mandate.
Fifthly, the same conclusion may be drawn from the systemic interpretation of the challenged provision. Indeed, it should be noted that all grounds for the expiry of the mandate of the mayor, provided for in Article 492(1) of the Electoral Code, may occur only after the said mandate has been acquired, i.e. after a given candidate is elected to the office. There is no doubt that only after the acquisition of the said mandate, there may occur grounds for the expiry of the mandate, as indicated in Article 492(1) in its points 1, 2, 3, 5, 8, 9 and 10 of the Electoral Code, i.e. refusal to take an oath of office by an elected mayor; failure to file a statement on assets within a prescribed time-limit; written renunciation of the mandate; breaches of statutory prohibitions against holding the office of the mayor of a village, town or city at the time of holding another office or carrying out economic activity, which have been set out in separate provisions; dismissal from the office as a result of a referendum as well as in accordance with the procedure set out in Article 96(2) of the Act on the Self-Government of Communes; and also or due to a change in the territorial division of the state, as referred to in Article 390(1)(3) of the Electoral Code. Similarly, the death of the mayor may justify the expiry of the mandate, provided that it occurred after the acquisition of the said mandate. If a candidate to the office of the mayor died before the election day, then in accordance with Article 483 of the Electoral Code, s/he is crossed out from the list of candidates by the electoral commission, and thus his/her mandate is out of the question. Moreover, pursuant to Article 492(1) of the Electoral Code, the expiry of the mandate of the mayor results from “death”, but it is obvious that what is meant here is the death of the mayor, and not e.g. the death of a candidate to the office of the mayor, and definitely not the death of a person who has not even been registered as a candidate to the said office (see e.g. similar grounds set forth in Article 279(1)(1) and Article 283(1)(1) of the Electoral Code – “the death of a senator”, Article 247(1)(1) and Article 251(1)(1) of the said Code – “the death of a Sejm deputy”). A person who died before the election day may not acquire a mandate even if a given electoral commission did not know about the death of the person and did not cross out the person from the list of candidates. The mandate may not be acquired by a person who no longer exists, and the deceased person ceases to be the subject of constitutional rights, including electoral rights. Also, the other two grounds for the expiry of the mandate of the mayor expressed in Article 492(1) of the Electoral Code, i.e. the loss of the right to stand for election or the lack of the said right on the election day, may not occur before the election day. Indeed, pursuant to Article 483(1) of the Electoral Code, a candidate for the mayor of a village who has lost the right to stand for election prior to the election day is crossed out from the list of candidates by a communal electoral commission. This means that the mandate may not be acquired, and thus it may not expire. Consequently, the ground for the expiry of the mandate of the mayor in the form of the loss of the right to stand for election concerns exclusively a person who has already been elected to the office of the mayor. By contrast, the other ground, which consists in the lack of the right to stand for election on the election day must occur “on the election day”, i.e. on the day when a given person acquires the mandate. Hence, it may not be deemed that this exemplifies a circumstance which, if occurs prior to the election day, results in the expiry of the mandate. To sum up the above, the Tribunal states that all the above-mentioned grounds for the expiry of the mandate of the said mayor, as referred to in Article 492(1) of the Electoral Code, must occur only after the acquisition of the said mandate, i.e. after the election day. None of the grounds, including the determination of incapacity for work or independent living, as long as it occurs prior to the election day, does not justify the commencement of the procedure for declaring the expiry of the mandate of the said mayor.
Sixthly, what weighs in favour of such an interpretation of Article 492(1)(6) of the Electoral Code is also its historical interpretation. The determination of permanent incapacity for work, in accordance with the procedure specified in provisions on old-age and disability pensions from the Social Insurance Fund, constituted a ground for the expiry of the mandate of the mayor of a village also in the light of Article 26(1)(6) of the Act on Direct Elections of Mayors of Villages, Towns and Cities. The said provision was binding until the entry into force of the Electoral Code. As it was indicated by A. Kisielewicz in the commentary on the first statute, the expiry of the mandate for the said reason “primarily results from the fact that at present the fulfilment of duties assigned to the mayor of a village is regarded as permanent work performed for remuneration as an employee, and thus it is required that a given person should have physical and mental abilities for such work” (A. Kisielewicz, comment 1 on Article 26, op.cit., p. 593). Since, in the context of the previous legal regulation, it was assumed that an analogical provision was applicable to the mayor of a village, who was required to be physically and mentally fit for work in the said position, then there are no reasons to interpret Article 492(1)(6) of the Electoral Code in a different way.
To sum up the above arguments, the Tribunal deems that what constitutes a ground for the expiry of the mandate of the mayor of a village (town or city) is not every medical statement of incapacity for work or independent living, but only such a statement which is issued with regard to a person who has already been elected as the mayor of a village.
4.4. Since what is challenged in the present case is the way of interpreting Article 492(1)(6) of the Electoral Code, and additional doubts as to the scope of the regulation of the said provision arose during the application thereof (this was raised by the applicant in the context of the case with relation to which he filed the application that initiated the proceedings), the Tribunal has deemed it necessary to specify the interpretation of the said provision in the operative part of the judgment. In the light of the said interpretation, the said provision was subjected to the review in respect of its conformity to the Constitution.
5. The conformity of Article 492(1)(6) of the Electoral Code to Article 60 in conjunction with Article 31(3) of the Constitution.
5.1. Pursuant to Article 60 of the Constitution, Polish citizens enjoying full public rights shall have a right of access to the public service based on the principle of equality. The said provision guarantees neither admission to the public service nor a possibility to remain in service irrespective of circumstances; it merely provides for the right to apply for civil service vacancies in compliance with the principle of equality. Rules for access to the public service may comprise both criteria that are substantive in character (e.g. proper professional qualifications, work experience, the lack of criminal record) as well as criteria that are of procedural nature (e.g. the filing of an offer in a recruitment process, the submission of required documents, or the required period of preparatory service). The said rules may be formulated by the legislator both in a positive way – as conditions that should be met by a person applying for a given civil service vacancy or holding a given position – as well as in a negative way, as circumstances which preclude access to the public service.
As it has been argued in the doctrine of law, “in the constitutional requirement for the application of ‘the principle of equality’, one should distinguish between the following two aspects: one related to the scope ratione personae and the other pertaining to the scope ratione materiae. The first aspect implies a requirement to apply the same principles of selection to all persons, on condition that they are covered by the guarantee of equal access as provided in Article 60, by fulfilling certain positive premisses, and are not excluded from the scope of the said guarantee, as a result of fulfilling given negative premisses. (…) As regards the aspect concerning the scope ratione materiae, the requirement to apply ‘the principle of equality’ amounts to the requirement of equal treatment of candidates applying for the same civil service vacancy (office)” W. Sokolewicz, comment no. 12 on Article 60 of the Constitution, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, Vol. IV, L. Garlicki (ed), Warszawa 2005, pp. 7-8.
The principle of proportionality, which complements Article 60 as a higher-level norm for the review, arises from Article 31(3) of the Constitution, pursuant to with which: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights”. The said provision comprises three criteria for assessing the admissibility of restrictions imposed on rights and freedoms: a formal criterion, namely the requirement of the statutory regulation of such restrictions, as well as two substantive criteria, i.e. the principle of proportionality and the obligation to preserve the essence of the rights and freedoms. Proportionality is the sum of the following three components: the principle of usefulness, the principle of necessity as well as the principle of proportionality in a strict sense. In the present case, it is alleged that the principle of proportionality has been infringed primarily in respect of the usefulness of the measure regulated in Article 492(1)(6) of the Electoral Code for the purpose of achieving the objective assumed by the legislator.
5.2. The legislator is competent to formulate requirements that need to be met if one is to be accepted for particular civil service vacancies and to take up those positions. The said requirements should be adequate to the type and character of given public service, and they should also be the same for everyone; in addition, as regards formal matters, they should be regulated by statute in a sufficiently detailed and precise way so as to eliminate any arbitrariness of decisions (see the judgment of the Constitutional Tribunal of 14 December 1999, ref. no. SK 14/98, OTK ZU No. 7/1999, item 163).
Article 492(1)(6) of the Electoral Code is one of provisions that formulate requirements for access to the public service, and in particular access to the office of the mayor of a village (town or city). However, the said provision does not specify requirements for admission to the public service, as they do not apply to candidates to the office of the said mayor. It merely expresses a condition the fulfilment of which prevents the mayor of a village from further civil service. Indeed, the determination of incapacity for work or independent living with regard to a mayor in office for a period no shorter than until the end of the term of office results in the expiry of the said mandate. In that very sense, access to the public service is restricted by Article 492(1)(6) of the Electoral Code, which is applicable to persons who already are in the said service. Thus, in order to address the allegation of unconstitutionality, formulated with relation to the said provision, it is necessary to determine whether the restriction of access to the public service complies with “the principle of equality” or whether the statutory regulation of access to the public service is sufficiently detailed and precise to rule out any arbitrariness of decisions. Moreover, it should be examined whether the challenged provision takes account of the principle of proportionality in its aspect concerning the usefulness of measures selected for the pursuit of set goals.
Pursuant to Article 492(1)(6) of the Electoral Code, determining that the mayor of a village is incapable of work or independent living results in the expiry of his/her mandate, provided that such incapacity is estimated to last for a period no shorter than until the end of the term of office. The said rule applies to all mayors of villages, as the statute provides for no exceptions in that respect. In addition, a procedure for determining incapacity for work or independent living is identical for all persons who hold the offices of the mayors of villages, regardless of the fact whether the said persons were subject to the general social insurance system before they got elected. Every mayor of a village, as an employee of local self-government, is subject to compulsory old-age and disability pension insurance (Article 6(1)(1) of the Act of 13 October 1998 on the Social Insurance System (Journal of Laws ‑ Dz. U. of 2013 item 1442, as amended), hence the provisions of the Act on Old-Age and Disability Pensions from the Social Insurance Fund specify the procedure for determining the said incapacity. Thus, there is no doubt that the requirement of setting out uniform rules for access to the public service is met by challenged Article 492(1)(6) of the Electoral Code.
The said provision, insofar as it specifies a ground for the expiry of the mandate acquired by the mayor of a village is also sufficiently detailed and precise. It contains reference to the Act on Old-Age and Disability Pensions from the Social Insurance Fund as regards a procedure for determining incapacity for work and independent living. The said Act, in a detailed way, regulated a procedure for issuing such type of medical statements, as well as premisses that determine incapacity for work and independent living. Challenged Article 492(1)(6) of the Electoral Code includes the wording “the mandate of the mayor of a village shall expire”, and not the wording “the mandate of the mayor of a village may expire”. this entails that the expiry of the mandate of the said mayor, where the indicated circumstance occurs, is obligatory in character. In other words, a decision on the expiry of the mandate is not subject to discretion of an authority that takes the decision. In the event of determining the said mayor’s incapacity for work or independent living, a competent electoral officer is required to determine the expiry of the mandate within the time-limit of 14 days from the date when a reason for the expiry occurred. The legislator has not provided for a possibility that the electoral office will use indirect measures, such as suspending the said mayor in his/her duties for a period of incapacity for work. Also, the period of incapacity for work or independent living, which justifies the necessary expiry of the mandate, has been specified precisely. Indeed, what is meant here is a situation where it is determined that the said capacity will last for a period no shorter than until the end of the term of office. Not every case of incapacity for work or independent living will necessitate the expiry of the mandate; it is only the case of incapacity that will, for a period – as it is estimated – no shorter than until the end of the term of office, preclude the fulfilment of duties assigned in general elections.
What is also subject to evaluation is the issue whether a given legal regulation under examination meets requirements that arise from the principle of proportionality formulated in Article 31(3) of the Constitution. Additionally, it should be pointed out that, in accordance with the well-established jurisprudence of the Constitutional Tribunal, the principle of proportionality comprises three specific principles. The first of one is the principle of usefulness, which stipulates that the legislator’s choice of measures that result in a restriction of constitutional rights and freedoms must serve the fulfilment of a set goal. In accordance with the second principle, i.e. the principle of necessity, the legislator is required to opt for a measure that will prove least intrusive for the individual, out of all measures that are useful for the pursuit of the said goal. In the light of the third principle, i.e. the principle of proportionality in a strict sense, the legislator must maintain adequate proportion between introduced measures and set goals. In the present case, it is alleged that the principle of proportionality has been infringed in respect of the principle of usefulness. The applicant argues that the measure selected by the legislator ‑ i.e. the expiry of the mandate of the mayor of a village (town or city) with regard to whom it has been determined that s/he is incapable of work or independent living until the end of the term of office – is not useful for the achievement of the set goal, namely for ensuring that the said office will be held by a person who is able to fulfil duties related thereto. The Constitutional Tribunal states that Article 492(1)(6) of the Electoral Code does not infringe the principle of proportionality in respect of the principle of usefulness. Pursuant to Article 13(1) of the Act on Old-Age and Disability Pensions from the Social Insurance Fund, when assessing the degree and estimated period of incapacity for work as well as the chances of regaining capacity for work, it is taken into account whether the person is capable of performing her/his current work. This entails that a medical statement of incapacity for work, issued with regard to a mayor in office, must take account of a possibility of carrying out work in that position.
The applicant is right in concluding that the medical statement of incapacity for work or incapacity for independent living contains no explicit indication that a person in question is incapable of performing the duties of the mayor of a village. However, the legislator has assumed that such a medical statement issued with regard to a person who holds the office of the mayor of a village is tantamount to determining incapacity for the performance of duties assigned to the mayor. In other words, according to the legislator, public service in the said position may not be performed by a person who has, at least to some extent, been deemed incapable of work. The medical statement, issued in accordance with the procedure set out in the Act on Old-Age and Disability Pensions from the Social Insurance Fund, allows one to presume that if it has been issued with regard to a person performing the duties of the mayor of a village, then this determines incapacity for fulfilling those duties. This concerns both medical statements of total or partial incapacity for work. The medical statement of total incapacity for work implies the loss of abilities to perform any work, including the duties of the mayor of a village. By contrast, the medical statement of partial incapacity for work entails that there has been considerable loss of capacity for performing work which matches acquired qualifications. When issuing the said statement, it is considered whether a given person is capable of performing current work i.e. the duties of the mayor of a village. Determining that there is no possibility of performing such work for a period no shorter than until the end of the term of the office and considering the possibility of taking up other work lead to the issuance of a medical statement on partial incapacity for work. Thus, one may not deem that the last-mentioned medical statement disregards capacity for performing the duties of the mayor of a village by a person with regard to whom such a medical statement has been issued. Challenged Article 492(1)(6) of the Electoral Code thus allows for achieving the goal set by the legislator, and so the principle of proportionality, as regards its aspect implying the requirement of usefulness, has not been infringed by the said provision.
To sum up the above, the Tribunal has held that the challenged provision is consistent with Article 60 in conjunction with Article 31(3) of the Constitution, as it does not restrict the right of access to the public service in a way that would be contrary to the principle of proportionality, and in particular the measure indicated in the provision – namely the determination of the expiry of the mandate of the said mayor – is useful for the achievement of the legislator’s set goal, which was to guarantee the proper fulfilment of duties by an executive authority from local self-government.
5.3. A procedure the purpose of which is the issuance of a medical statement on incapacity for work or independent living is commenced upon an application by a person concerned who is applying for a disability benefit. Therefore, it is not possible to commence the procedure upon an application by other persons, for instance, the chairperson of a given communal council, who carries out activities that fall within the scope of labour law as regards signing and terminating employment relationship. Only within a very limited scope, there is a possibility that a medical statement of incapacity for work will be issued ex officio. Pursuant to Article 107 of the Act on old-age and disability pensions from the Social Insurance Fund, the right to benefits that depend on incapacity for work as well as the amount of benefits are subject to change, if as a result of medical examination carried out upon an application or ex officio, it is determined that the previously established degree of incapacity for work has changed, there is no incapacity or incapacity has re-occurred. What follows from the provision is that it is possible to determine the above-mentioned factors as regards incapacity for work as a result of medical examination which is carried out ex officio; however, this concerns people with regard to whom it was previously determined that there was incapacity for work. Article 107 of the Act on old-age and disability pensions from the Social Insurance Fund provides for a change in the established degree of incapacity for work, the lack of the said incapacity or the re-occurrence of incapacity, but it is included in the chapter entitled “Changes in the right to benefits and the amount thereof”. Thus, authorities responsible for matters related to disability pensions may not ex officio, on the basis of the said provision, commence the procedure for issuing a medical statement of the incapacity for work to a person who has never been issued such a statement and does not apply for the said issuance. Similarly, there is no possibility of commencing the said procedure ex officio by the President of the Social Insurance Institution, who – pursuant to Article 14(4) of the Act on old-age and disability pensions from the Social Insurance Fund – exercises supervision over the process of issuing medical statements of incapacity for work. Within the scope of that supervision, the said President has the right to refer cases to be examined by a medical committee appointed by the Social Insurance Institution, if – as a result of a review of correctness and uniformity of the application of rules that govern the issuance of medical statements of incapacity for work by medical experts and medical committees from the Social Insurance Institution, s/he determines that there is a discrepancy between a medical statement issued by the said medical expert or committee and the actual state of affairs or that there is non-compliance with the rules determining incapacity for work.
The lack of the possibility of commencing the procedure aimed at the issuance of a medical statement of incapacity for work or independent living, against the will of the mayor of a village (town or city), and hence the lack of a possibility to ex officio commence the procedure for the expiry of the mandate of the said mayor, is not challenged in the present case. The said gap in the procedure for determining the expiry of the mandate of the mayor, which consists in the lack of a possibility to commence the said procedure against the will of the person concerned, does not weigh in favour of the unconstitutionality of the ground for the expiry of the mandate in the form of a statement that the mayor is incapable of work or independent living. However, gaps and irregularities in procedural provisions need to be signalled to the legislator by the Tribunal, in accordance with the procedure set out in Article 4(2) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended).
5.4. In the legislator’s opinion, “the challenged norm makes it impossible for persons with disabilities to perform duties assigned to the authorities of local self-government (p. 10 of the application). As it has been indicated above, the said thesis stems from an erroneous interpretation of Article 492(1)(6) of the Electoral Code. Despite the assertions made by the applicant, the said provision does not refer to all persons with disabilities, but to a very narrow group thereof, i.e. the mayors of villages with regard to which incapacity for work or independent living was determined after their election to the office. Such a narrow way of specifying the group of addressees of the said provision results in the situation where there are the above-mentioned cases that justify commencing the procedure for the expiry of the mandate of the mayor, and which have not been taken into account by the legislator. The elimination of the said gaps and irregularities in the law, which refer to the procedure for determining the expiry of the mandate of the mayor due to his/her incapacity for the performance of assigned duties, is indispensable for ensuring the consistency of the legal system of the Republic of Poland. For that reason, the said issues raised by the Tribunal will be presented in a separate signalling decision addressed to the legislator.
For these reasons, the Constitutional Tribunal has adjudicated as in the operative part of the judgment.
Dissenting Opinion
of Judge Wojciech Hermeliński
to the Judgment of the Constitutional Tribunal
of 23 January 2014, ref. no. K 51/12
Pursuant to Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to the judgment of the Constitutional Tribunal of 23 January 2014 in the case K 51/12.
In my opinion, the Constitutional Tribunal, in an unjustified way, limited the scope of adjudication in the present case, and did not examine the case in its entirety. Indeed, it should also have been adjudicated that Article 492(1)(6) of the Act of 5 January 2011 – the Electoral Code (Journal of Laws ‑ Dz. U. No. 21, item 112, as amended; hereinafter: the Electoral Code), insofar as it concerns medical statements of incapacity for work or independent living, issued prior to the commencement of the term of office in the case of the mayor of a village, town or city, is inconsistent with Article 60 in conjunction with Article 31(3) of the Constitution.
At the same time, I agree with the conclusions of the Constitutional Tribunal as to the adequacy of the higher-level norms for the constitutional review in the present case (namely, that Article 31(3) of the Constitution should be taken into account as well, on the basis of the Ombudsman’s application, and that there is no need to assess the constitutionality of the challenged provision in the light of Article 32 of the Constitution and Article 29(a) of the Convention on the Rights of Persons with Disabilities, Journal of Laws ‑ Dz. U. of 2012 item 1169; hereinafter: the Convention).
I justify my dissenting opinion as follows:
1. The scope of the regulation of Article 492(1)(6) of the Electoral Code.
I hold the view that the Ombudsman challenged Article 492(1)(6) of the Electoral Code in its entirety, and not merely insofar as the provision refers to the medical statements of incapacity for work or independent living, issued after the commencement of the term of office in the case of the mayor of a village, town or city.
The reconstruction of the scope of the allegation carried out by the Constitutional Tribunal is confirmed neither by the content of the application (which concerns a specific example where the previous version of the challenged provision was applied by the State Electoral Commission to a person with regard to whom the said medical statement had been issued before the beginning of the term of office) nor by the arguments presented by the applicant’s representatives at the hearing. Also, the interpretation of the challenged provision adopted in the judgment under discussion was not fully shared by the other participants in the proceedings (it was only accepted by the Public Prosecutor-General in his modified arguments, whereas it was rejected as a whole by the Sejm).
In my opinion, such a narrow scope of the allegation was not justified in a convincing way either (cf. part III, point 4.3. of the statement of reasons). When analysing particular arguments put forward by the Constitutional Tribunal, the following may be stated:
Firstly, the mere linguistic interpretation of Article 492(1)(6) of the Electoral Code does not lead to unambiguous determination as to a time-limit within which medical statements mentioned therein should be issued (i.e. before or after the commencement of the term of office). Adopted by the Constitutional Tribunal, the distinction between ‘the action of determining’ and ‘a medical statement as a result of that determination’ appears to be sophistic and does not seem to contribute much; it is obvious that the two elements are a prerequisite for the expiry of the mandate (it is necessary to complete the process of ‘determining’ in the form of an issued determination i.e. a medical statement, and only the medical statement implies that ‘determining’ took place). In my view, what follows from the challenged provision is merely that the effect of the challenged provision will certainly occur after the commencement of the term of office (for the expiry of a mandate to take place, the mandate needs to be first acquired, i.e. a given person must be elected; indeed, the challenged provision does not regulate grounds for the loss of the right to stand for election, which are enumerated in another provision of the Electoral Code, namely Article 483). I hold the view that the wording of Article 492(1)(6) of the Electoral Code makes it possible to draw a completely different conclusion. Since the wording “as a result of (…) the determination of incapacity for work or independent living”, included in the provision, contains no clear time-limit for the issuing of the said determination i.e. a relevant medical statement, it should (lege non distiguente) be deemed that these may be medical statements issued either before or after the commencement of the term of office. Consequently, the judgment of the Constitutional Tribunal should comprise these two situations.
Secondly, in my opinion, what does not set the moment of issuing medical statements is the indication in the challenged provision that incapacity for work or independent living is a ground for the expiry of the mandate, if it was determined for a period “no shorter than until the end of the term of office” (NB an analysis of that issue also primarily requires carrying out a linguistic interpretation, and therefore the singling out of that argument is a bit artificial). As it undeniably follows from Article 13(2), (3) and (3a) of the Act on Old-Age and Disability Pensions from the Social Insurance Fund (Journal of Laws – Dz. U. of 2013 item 1440, as amended; hereinafter: the Act on Disability Pensions), the indicated medical statements are issued for a defined period in terms of years (in principle, the said period is no longer than five years, unless in the light of medical knowledge, a person under examination has no chance of regaining his/her capacity for work before the lapse of the said period). The said medical statements never refer to “the end of the term of office”. In other words, in order to determine whether the ground for the expiry of the mandate occurred, as provided for in Article 492(1)(6) of the Electoral Code, it is always necessary to juxtapose the period of incapacity for work or independent living, indicated in those medical statements, with the date marking the end of the term of office with regard to the mayor of a village, town or city (which, of course, is known only after the election of a particular person, and thus this assessment may not be carried out in the abstract). Considering that the term of office in the case of those officials lasts four years (cf. Article 26(2) in conjunction with Article 16 and Article 11a(3) of the Act of 8 March 1990 on the Self-Government of Communes; Journal of Laws ‑ Dz. U. of 2013 item 594, as amended; hereinafter: the Act on the Self-Government of Communes), it should be deemed that a reason for the expiry of the mandate may certainly be all medical statements of incapacity for work or independent living for a period of five years, issued within a year before the acquisition of the mandate, as well as some medical statements that were issued earlier (if they were issued for a period exceeding 5 years on the basis of Article 13(3) and (3a) of the Act on Disability Pensions). Thus, also within that scope, one may not agree with the majority of the judges adjudicating in the case under discussion that the interpretation of the challenged provision, presented in the said judgment, is correct.
Thirdly, it seems to me that the procedure for determining the expiry of the mandate provides no evidence in support of the narrow interpretation of Article 492(1)(6) of the Electoral Code. It is obvious that the procedure may be applied only after the acquisition of the mandate (i.e. as of the date of being elected and not as of the date of taking the oath of office – cf. Article 26(2) in conjunction with Article 16 and Article 11a(3) of the Act on the Self-Government of Communes; refusal to take the oath of office constitutes a ground for the expiry of the mandate – cf. Article 492(1)(1) of the Electoral Code) and may involve electoral authorities (an electoral commissioner – cf. Article 492(2a) of the Electoral Code). The challenged provision only implies that the analysed ground for the expiry of the mandate must be relevant on the day of issuing a decision on the expiry of the mandate (indeed, the said decision confirms the occurrence of an actual fact i.e. the existence of a certain determination in legal relations) – regardless of the fact when it actually occurred (whether before or after the acquisition of the mandate). In this context, one should point out that neither the Electoral Code nor the Act on the Self-Government of Communes contains provisions that prohibit the acquisition of the mandate by a person with regard to whom a medical statement of incapacity for work or independent living was issued before the acquisition of the mandate. What is more, in the current legal system, a candidate for the mayor of a village, town or city does not have to (and perhaps even may not) disclose such information in his/her application (indeed, this is not provided for in Article 479 of the Electoral Code, which contains a closed catalogue of data and statements required from candidates). Hypothetically, if such a person submitted a medical statement of incapacity for work or independent living together with his/her application, it should be assumed that a communal electoral commission would be obliged to return the former document to the candidate (as it would have no legal basis for dealing with it, e.g. for processing personal data contained therein).
Fourthly, for the above reasons, one may not conclude that the scope ratione temporis of the said ground is determined by the fact that the expiry of the mandate occurs “as a result of”, inter alia, the determination of incapacity for work or independent living. The phrase “as a result of”, included in the challenged provision, expresses only a cause-and-effect relation between the grounds for the expiry of the mandate and the effects thereof. The provision regulates matters of “chronology” only partially: it provides that, in the first place, a medical statement must be issued and the mandate needs to be acquired (or the other way round: first the acquisition of the mandate and then the issuance of the medical statement), and only then the mandate may be subject to expiry (indeed, there may be no expiry of a mandate, whether after or before the acquisition thereof, if there occur no grounds for the said expiry). What does not follow from the very phrase “as a result of” is whether a medical statement of incapacity for work or independent living is to be issued during the term of office or before the commencement thereof, but only that the indicated medical statements are a reason for the expiry of the mandate.
Fifthly, I definitely disagree with the view that all the grounds for the expiry of the mandate, enumerated in Article 492(1) of the Electoral Code may “occur” (i.e. emerge) after the acquisition of the mandate (namely, after the election of a candidate to the office of the mayor of a village, town or city). In my view, the said statement is only true with regard to the circumstances enumerated in the challenged provision, which – by virtue of their nature – may only occur after the acquisition of the mandate, as they are directly related to the said acquisition (e.g. refusal to take the oath of office, the renunciation of the mandate, dismissal from the office, the elimination of the office due to changes in the territorial division of the state – Article 492(1), in its points 1, 3, 8, 9 and 10, of the Electoral Code) or particular obligations that arise therefrom (failure to file a statement on assets, an infringement of the principle of incompatibilitas – Article 492(1), points 2 and 5, of the Electoral Code). With regard to the grounds enumerated in Article 492(1), points 4 and 7, i.e. the loss of the right to stand for election and the case of death, there is a different situation, namely: the said circumstances may also occur before the election and are relevant from the point of view of law; however, then they do not result in the expiry of the mandate (as it has not yet been acquired), but in deleting the surname of a given person from the list of candidates (cf. Article 483(1) of the Electoral Code). In theory, such electoral commissions should delete, from the lists of candidates, all persons that lost the right to stand for election or passed away during the period between registering a given person and the election day. However, if the said circumstances arise after the acquisition of the mandate, they cause the expiry thereof (cf. Article 492(1)(1) and Article 492(1)(4) of the Electoral Code; an analogical effect is achieved by the lack of the right to stand for election – cf. Article 492(1)(4) of the said Code; the question of the effects of a candidate’s death on the election day has not been regulated explicitly). The challenged ground is unique in this context: it may occur before the expiry of the mandate, but until the election day it has no legal significance, as it constitutes merely an obstacle to performing the duties of the mayor of a village, town or city, rather than to exercising the right to stand for election to the said office.
Sixthly, I disagree that a sufficient argument for the interpretation of the challenged provision that has been presented in the judgment is the fact that the provision has been transferred in extenso from certain previous regulations (NB the Constitutional Tribunal should have examined whether legislative work within that scope was thorough – but it appears that it was not). In my view, both the present and previous regulations refer to medical statements of incapacity for work or independent living, irrespective of the fact whether they were issued before or after the commencement of the term of office. In this context, I find it methodologically inaccurate to rely on a single mention in the doctrine of law (which, in my view, is more de lege ferenda in character than de lege lata), whereas in the present case there is an official interpretation of the previous version of the challenged provision arrived at by the National Electoral Commission that differs in substance (a letter addressed to a particular candidate which states that although a medical statement of permanent incapacity for work issued to him/her constitutes no obstacle to standing for election, the said statement will – in the event of election – be a ground for the expiry of the mandate on the first day in office).
In conclusion, to my mind, Article 492(1)(6) of the Electoral Code provides for the expiry of the mandate of the mayor of a village, town or city, due to a medical statement of incapacity for work or independent living issued either before or after the acquisition of the mandate. The limitation of adjudication on the merits in the present case to the other type of situations raises doubt in the context of Article 66 of the Constitutional Tribunal Act, for the subject of adjudication by the Constitutional Tribunal has been deemed to be a different (narrower) norm than the one indicated by the applicant, thus leaving some of the applicant’s reservations unexamined.
2. The assessment of the constitutionality of Article 492(1)(6) of the Electoral Code.
I agree with a majority of the judges adjudicating in the case that as regards the regulation of passive electoral right in the context of elections for the office of the mayor of a village, town or city, the legislator enjoys relatively greater discretion than when regulating rules governing parliamentary or presidential elections (cf. Article 99 and Article 127(3) of the Constitution). Undeniably, the only provision of the Constitution which directly refers to a procedure for electing executive authorities within the scope of local self-government is Article 169(3) of the Constitution, which formulates no substantive restrictions and delegates the matter to be regulated by statute.
I also share concern expressed by the Constitutional Tribunal that the mandates of the mayors of villages, towns or cities were held by persons who not only were elected in a democratic way, but who also have physical and mental capacity to fulfil duties related to the said offices. It is obvious to me that the legislator should introduce such regulations that would guarantee the effective performance of public duties at all levels of authority. In particular, this concerns executive duties performed by one official in a commune, which – due to their essence – require systematic work, everyday availability and considerable resilience to stress.
Despite the above circumstances, I hold the view that the mechanism provided for in Article 492(1)(6) of the Electoral Code does not fulfil the indicated goal in an effective and constitutionally admissible way. The said provision constitutes a barrier to access to public service as regards the offices of the mayors of villages, towns or cities (and indirectly, also candidates for elections to the said offices) who have medical statements of incapacity for work or independent living within the meaning of Article 12 and Article 13(5) of the Act on Disability Pensions. Consequently, this leads to differentiation in the situation of persons elected to the said offices in respect of their ability to exercise the mandate on the basis of an irrational criterion, which disregards the actual and objective assessment of those persons’ capacity for performing the duties of the mayor of a village, town or city.
I hold the view that since the mayors of villages, towns or cities are local self-government employees, hired in the offices of communes on the basis of an election outcome (cf. Article 4(1)(1) of the Act of 21 November 2008 on Local Self-Government Employees; Journal of Laws ‑ Dz. U. No. 223, item 1458, as amended), in order to assess their abilities to perform those duties, it is adequate to accordingly apply regulations on particular occupational groups (cf. likewise: A. Kisielewicz, comments on Article 26 of the Act of 20 June 2002 on direct elections to the office of the mayor of a village, town or city, Journal of Laws ‑ Dz. U. of 2010 No. 176, item 1191, [in:] K. W. Czaplicki, B. Dauter, A. Kisielewicz, F. Rymarz, Samorządowe prawo wyborcze, Warszawa 2010, p. 603). As intended by the legislator, the Polish legal system provides for different criteria for assessing the state of health of individuals in various situations (e.g. for the purpose of acquiring a disability pension due to incapacity for work, a family benefit, a care allowance, eligibility for discounted public transportation fares or a permit to park in spaces reserved for disabled drivers, admission to work, legal incapacity, military service, exemption from criminal liability, education in an educational institution for learners with special needs, or compulsory placement in a psychiatric institution). Therefore, it is reasonable to expect that particular rules will be applied by the legislator in a consistent way, taking account of the purpose the achievement of which the said privileges are to serve.
What constitutes tools for assessing given employees’ capacity to work (lege non distiguente – also the mayors of villages, towns or cities, i.e. local self-government employees who are employed on the basis of election results) are medical statements issued by medical practitioners specialising in occupational medicine, issued on the basis of Article 229 of the Act of 26 June 1974 – the Labour Code (Journal of Laws ‑ Dz. U. of 1998 No. 21, item 94, as amended; hereinafter: the Labour Code; cf. also the regulation of 30 May 1996 issued by the Minister for Health and Social Policy with regard to carrying out medical checks for employees, the scope of preventive medical care for employees as well as medical statements issued for purposes provided for in the Labour Code, Dz. U. No. 69, item 332, as amended). The submission of such a statement, issued on the basis of medical checks and by taking account of the characteristics of work that one is to take up, constitutes a prerequisite for admitting all employees to work, regardless of the type of employment contracts they sign (cf. Article 229(4) of the Labour Code).
In my view, the legislator’s introduction of the presumption that persons deemed incapable of work or independent living (for purposes ensuing from provisions on disability pensions and not provisions on employees) are automatically en masse incapable of exercising the duties of the mayors of villages, towns or cities is completely incomprehensible. It is hard to find any reasonable justification for such regulation, and especially for the indication that this was an indispensable and the least intrusive solution out of all possible options for ensuring proper recruitment to vacancies in local self-government.
Firstly, the challenged solution does not at all guarantee that local self-government offices will be held by persons whose state of health permits that (hence, it does not meet the requirement of usefulness). Medical statements of incapacity for work or independent living are issued above all when a given person applies for the granting of a disability pension due to incapacity for work (cf. Article 57 of the Act on Disability Pensions). If anyone intends to apply for the benefit (since, for instance, in an obvious way, the applicant does not meet criteria for the granting thereof, e.g. s/he does not have the right number of contributory or non-contributory periods, which are required by Article 57 of the Act on Disability Pensions, due to the fact that s/he has never worked), then there is no need to change the said status. The fact that a person has or does not have the above-mentioned medical statements does not allow for any reliable verification of abilities to exercise the indicated local self-government functions, especially that Article 492(1)(6) of the Electoral Code does not require that they were up-to-date (this is essential in particular in the case of medical statements of total incapacity for work or independent living which may be issued for a period longer than 5 years – cf. Article 13(3) and (5) of the Act on Disability Pensions). Appropriate assessment of the state of health in the case of the mayors of villages, towns or cities is carried out only on the basis of preliminary medical examination (which is obligatory also for that category of employees), carried out on the basis of Article 229(1)(1) of the Labour Code. It may happen that a person who is totally incapable of work receives a positive opinion prepared by a medical practitioner, and the other way round – that a clear negative opinion is issued, but there is no proviso about incapacity for work and, within the meaning of the challenged provision, this does not suffice for the expiry of the mandate. Thus, there is no reason to a priori eliminate some people elected to the said offices from the group of persons capable of performing duties due to medical statements related to the granting of disability pensions, and at the same time to refrain from applying mechanisms in the form of medical statements that in a better way implement the set goal (indeed, it should be noted that the mere submission of positive medical statement prepared by an occupational medicine expert does not eliminate the automatic effect of Article 492(1)(6) of the Electoral Code in the form of the expiry of the mandate in the case of the mayor of a village, town or city who has been deemed incapable of work or independent living).
Secondly, even when we hypothetically assume that the challenged provision uses criteria that are adequate to the aim of the statute, it also raises reservations as to the implementation of the principle of equality in the context of access to the public service. Indeed, it requires the expiry of mandates only with regard to persons who have been deemed incapable of work or independent living on the basis of disability provisions. By contrast, the challenged provision overlooks persons who are in the same situation, and in whose case similar medical statements were issued on the basis of special provisions, e.g. the functionaries of uniformed services or farmers (e.g. the Act of 18 February 1994 on Old-Age Pensions of Functionaries of the Police, the Internal Security Agency, the Foreign Intelligence Agency, the Military Counter-Intelligence Service, the Military Intelligence Service, the Central Anti-Corruption Bureau, the Border Guard, the Government Protection Bureau, the State Fire Service and the Penitentiary Service as well as Their Families, Journal of Laws ‑ Dz. U. of 2013 item 667, as amended, or the Act of 20 December 1990 on Social Insurance for Farmers, Journal of Laws ‑ Dz. U. of 2013 item 1403, as amended). As a result, on the basis of Article 492(1)(6) of the Electoral Code, the said mandate will expire in the case of a person who has been receiving a disability pension due to incapacity for work, where this person worked as, for example, a salesperson or driver, but this may not be carried out with regard to a police officer or farmer. In addition, it should be noted that as regards predisposition to the office of the mayor of a village, town or city, different evaluation should be given with regard to the situation of persons who are partially incapable of work (the said medical statement is indeed issued for the purpose of assessing the possibility of fulfilling duties ensuing from a particular position) as well as persons who are totally incapable of work or independent living (such a type of medical statements rules out work in any “ordinary” position, concurrent with acquired qualifications). The presumption of incapacity for fulfilling duties with regard to the other of the said groups is more justified (which does not mean that it is correct – for the above-indicated reasons), as in practice they may only work in some, specially adjusted, premises (the mere possibility of undertaking work in the conditions of supported employment by persons who are regarded as incapable of work is directly provided for in Article 13(4) of the Act on Disability Pensions). Consequently, Article 492(1)(6) of the Electoral Code treats similar subjects of rights and obligations in a different way, whereas in the case of different subjects, it provides for similar treatment.
Thirdly, a serious premiss weighing against the challenged solution is its automatic character. Indeed, Article 492(1)(6) of the Electoral Code introduces a principle that the mandate of a person who is incapable of work or independent living expires ex lege, and the said fact is merely stated in a declarative decision issued by an electoral officer. Unlike in the case of, for instance, the expiry of the mandate due to refusal to take an oath of office or the loss of the right to stand for election, in this case, a person concerned has no possibility of providing explanation or presenting documents that confirm the person’s capability to work.
Fourthly, what may not constitute justification for the challenged solution is budget-related arguments. The very essence of the passive electoral right implies that the right should be granted to as large a group of individuals as possible, and possible exceptions may not be presumed, but they require a detailed analysis of a particular case. In this case, it should be carried out in a particularly diligent way, since it also indirectly interferes in active electoral rights (may result in challenging an election outcome) and concerns people who are extremely sensitive, and are under special protection by the state (including in particular persons with disabilities, cf. Article 69 of the Constitution and the Convention). It is hard to question the thesis that electing persons e.g. with physical disabilities to the office of the mayors of villages, towns or cities will entail incurring additional expenses related to the adjustment of given premises. The assessment whether is it useful to incur the said expenses is to be made by an entity that will incur them, namely the employer (the office of a given commune). It is obvious that when the residents of a commune decide to elect a mayor who is physically disabled, hearing-impaired or visually-impaired, assess the cost and benefits of such a solution. In the light of the principle of subsidiarity (cf. the Preamble to the Constitution), there is no need for the decision on the “cost-effectiveness” of decisions of local self-government communities, within the said scope, to be determined at the statutory level.
In my view, the indicated defects of Article 492(1)(6) of the Electoral Code are not sufficiently balanced out by any other circumstances.
First of all, it may not be deemed that the sole argument for the constitutionality of the provision is its detailed character, precise wording and automatic application (understood as the lack of discretion) of criterion of incapacity for work or independent living as a reason for the expiry of the mandate in the case of the mayor of a village, town or city (cf. part III point 5.2. of the statement of reasons). Article 492(1)(6) of the Electoral Code leads to the constitutional restriction of the right of access to public offices for persons deemed incapable of work or independent living. The premisses for the said restriction may not be verified only in respect of their form, but they must also meet substantive criteria for the admissibility of restrictions of constitutional rights, indicated in Article 31(3) of the Constitution (a requirement which – in my opinion – they fail to comply with, cf. the above discussion).
Furthermore, it does not seem that persons interested in holding the office of the mayor of a village, town or city are provided with proper measures to challenge the automatic effect of Article 492(1)(6) of the Electoral Code. Obviously, it is admissible to submit an application for medical examination to determine the degree of incapacity for work (cf. § 6(2) of the regulation of 14 December 2004 issued by the Minister of Social Policy with regard to determining incapacity for work; Journal of laws ‑ Dz. U. No. 273, item 2711, as amended). However, recourse to such a measure by a candidate in elections to the office of the mayor of a village, town or city is however – from the point of view of the person – considerably risky in financial terms, as this may mean the loss of the current source of income (e.g. a disability pension due to incapacity for work – cf. Article 57 of the Act on Disability Pensions) and this is in the situation of the lack of certainty whether s/he will win in local self-government elections and will be employed in the office of a given commune. It is too late to do so after the announcement of an election outcome, for Article 492(1)(6) of the Electoral Code requires that the mandate of the person with regard to whom incapacity for work or independent living has been determined should expire on the first day of taking up the office. In reality, the said solution could be applied only within a short period of time between the final determination of an election outcome and the validity of elections, and the taking up of the mandate (e.g. taking the oath of office – cf. Article 29a of the Act on Communal Self-Government), which is – for organisational reasons – unfeasible. Indeed, the provisions guarantee no time-limit for the examination of a case by medical experts, or – in the case where an applicant challenges a given medical statement – by a medical committee of the Social Insurance Institution (cf. Article 14(1) of the Act on Old-Age and Disability Pensions). Also, the challenging of a decision issued by an electoral officer with regard to the expiry of the mandate of the mayor of a village, town or city, for reasons indicated in Article 492(1)(6) of the Electoral Code, in an administrative court does not allow for the reversal of the effects of the challenged provision. The administrative court examines the legality of the challenged provision (which is declaratory, and not constitutive, in character) and is required to confirm its conformity to the law, provided that a competent authority has appropriately determined grounds for the expiry of the mandate.
Although the above reservations refer to the expiry of the mandate as a result of the issuance of medical statements either before or after the expiry of the mandate, it seems to me that, in both situations, it is possible to assess the constitutionality of Article 492(1)(6) of the Electoral Code in different ways.
Indeed, one may notice one argument for determining the said institution as beneficial to persons concerned, but only when they have been issued a medical statement of incapacity for work (especially when it is total incapacity) or independent living upon an application filed by a person who has been elected and is performing the duties of the mayor of a village, town or city. One may conceive of a situation that the state of health of mayors in office deteriorates to the extent that they begin to have difficulties in fulfilling local self-government duties assigned to their mandates. Obviously, they may renounce the mandate; however, this would entail the immediate loss of financial means (the suspension of the payment of their remuneration). Thus, from the economic (and practical) point of view, it would be more reasonable to apply for a disability pension due to incapacity for work, which needs to be preceded by the obtaining of the said medical statements of incapacity for work or independent living. In such a situation, the challenged provision limits redundant formalities, given that the expiry of the mandate results from the obtaining of the medical statement, and the person concerned does not need to take any action. Although this does not allow the person in question to make a smooth transition from remuneration for work to a disability pension due to incapacity for work (because usually some time elapses between the issuance of a medical statement and the granting of a benefit), but at the same time it reduces the possibility that a situation occurs where persons who are incapable of performing the duties of the mayor of a village, town or city hold the said offices. Such ratio legis of the challenged provision within the scope rendered in the operative judgment of the Constitutional Tribunal makes it possible to deem it consistent with Article 60 in conjunction with Article 31(3) of the Constitution.
The above arguments do not however apply to the remaining part of Article 492(1)(6) of the Electoral Code. Thus, it should be concluded that the said provision, insofar as it provides for the expiry of the mandate, as a result of a medical statement of incapacity for work or independent living issued before the election day, is inconsistent with the indicated higher-level norms for the review.
For the above reasons, I have found it necessary to submit this dissenting opinion.