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The Act of 13 January 2023 amending the Supreme Court Act and certain other acts Kp 1/23

On 11 December 2023, the Constitutional Tribunal considered the application lodged by the President of the Republic of Poland with regard to the Act of 13 January 2023 amending the Supreme Court Act and certain other acts.

The Constitutional Tribunal adjudicated that:

Art. 1(2)(b)-(e), Art. 1(3)(b), Art. 2(1)(b)-(d), Art. 2(2)(b), Art. 3(1)(a)-(c), Art. 3(3)(b), Art. 4(2)(a)-(c), Art. 4(4)(b) of the Act of 13 January 2023 amending the Supreme Court Act and certain other acts are inconsistent with Art. 179 in conjunction with Art. 144(3)(17) as well as with Art. 178 and Art. 180(1) of the Constitution of the Republic of Poland.
2. Art. 1(1)(a), Art. 1(2)(e)-(j), Art. 1(4), Art. 2(1)(e), Art. 2(3)(a), Art. 2(3)(b), Art. 2(3)(c), Art. 2(3)(d), Art. 3(1)(d), Art. 3(4)(a), Art. 3(4)(b), Art. 3(4)(c), Art. 3(4)(d), Art. 3(5), Art. 3(6), Art. 3(7), Art. 4(3), Art. 5, Art. 6, Art. 7, Art. 9 and Art. 10 of the Act referred to in point 1 are inconsistent with Art. 184 and Art. 183(1) of the Constitution.

The provisions mentioned in part I are inextricably linked with the entire Act.

As to the remainder, the Tribunal discontinued the proceedings.

The ruling was adopted by a majority vote. There was one dissenting opinion, filed by Judge Piotr Pszczółkowski.

In the Constitutional Tribunal's assessment, the provisions amending the prerequisites and rules of the test of a judge’s independence and impartiality, introduced by the Act of 13 January 2023 are inconsistent with Art. 144(3)(17) in conjunction with Art. 179 of the Constitution as well as with Art. 178 and Art. 180(1) of the Constitution.

The Tribunal stated that the structure of the test of a judge’s independence and impartiality introduced into the Polish legal system by the Act of 9 June 2022 had been used to contest the appointment of judges, and the impugned January Act expands that possibility. The mutual verification of judges’ appointments in the course of court proceedings – in the opinion of the Constitutional Tribunal – contradicts the principle of judges’ independence and gravely infringes the power vested in the head of state to appoint judges. Indeed, an essential element of judicial independence is the stability and irrevocability of the appointment.

The case-law of international courts with regard to judicial appointment procedures in other legal systems may not be applied to assess the validity of Polish statutes, with the rulings of the Polish Constitutional Tribunal being bypassed. The adjustment of the Polish legislation on judicial appointment procedures must be carried out with caution and must take account of the dynamic nature of interpretation. The Constitutional Tribunal knows no other examples of the application of similar tests by means of separate legislation in European states. Moreover, the Tribunal deemed that the changes in the jurisdiction of the Supreme Court and of the Supreme Administrative Court, consisting in assigning new powers to the Supreme Administrative Court within the scope of examining disciplinary and immunity cases, are inconsistent with Art. 183(1) and Art. 184 of the Constitution.

As regards the changes in the disciplinary provisions challenged by the President of the Republic of Poland, the Tribunal discontinued the proceedings, stating that the subject of the review falls within the scope of the Parliament’s regulatory freedom. Having determined the fundamental issues pertaining to judges’ independence and impartiality as well as to the changes in the powers of the Supreme Court and the Supreme Administrative Court, the Constitutional Tribunal discontinued the proceedings insofar as they concerned the period of vacatio legis.

The Tribunal stated the provisions of the impugned Act deemed inconsistent with the Constitution and covered by points 1 and 2 of the judgment were inextricably linked with the entire Act.

The Constitutional Tribunal en banc adjudicated on the case, with the President of the Constitutional Tribunal, Judge Julia Przyłębska, as the Presiding Judge, and Judge Bartłomiej Sochański as the Judge Rapporteur.