A preliminary application for holding the President of the National Bank of Poland accountable before the Tribunal of State K 8/24
On 20 August 2024 the Constitutional Tribunal considered the application by a group of Sejm Deputies with regard to a preliminary application for holding the President of the National Bank of Poland accountable before the Tribunal of State.
The Constitutional Tribunal adjudicated that:
1. Article 8 of the Act of 26 March 1982 on the Tribunal of State, insofar as it concerns the President of the National Bank of Poland, is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution of the Republic of Poland.
2. Article 9d(1) of the Act referred to in point 1 – insofar as it concerns the obligatory appearance of the President of the National Bank of Poland before the Constitutional Liability Committee – is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution.
3. Article 9g(2) of the Act referred to in point 1, insofar as it concerns the Constitutional Liability Committee’s adoption of a decision to hold the President of the National Bank of Poland accountable before the Tribunal of State, is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution.
1. The proceedings were initiated by a group of Sejm Deputies who challenged a number of provisions of the Act on the Tribunal of State as well as one of the provisions of the Rules of Procedure of the Sejm.
2. The applicant pointed out that in the light of the Act on the Tribunal of State, prior to instituting proceedings before the Tribunal of State with regard to the President of the National Bank of Poland (hereinafter: the NBP President), it is necessary for the Marshal of the Sejm [i.e. the Speaker of that House of Parliament] to file an application for holding the NBP President accountable before the Constitutional Liability Committee to carry out relevant proceedings before that Committee.
3. According to the applicant, the proceedings before the Constitutional Liability Committee – being a authority that is political in nature, as a Sejm committee – violate the principle of the independence of the National Bank of Poland (the NBP), derived from Article 227 of the Constitution.
4. The Constitutional Tribunal recalls that the principle of the independence of the NBP and its President from political factors has remained well-established in the jurisprudence of the Tribunal. This may be exemplified, inter alia, by the judgment of 22 September 2006, ref. no. U 4/06, and in the latest jurisprudence – by the judgment of 11 January 2024 in the case ref. no. K 23/23. In the case ref. no. U 4/06, the Constitutional Tribunal declared the non-conformity to Article 227 of the Constitution of the provisions authorising a Sejm inquiry committee to examine the appropriateness and purposefulness of activities carried out by the NBP and its authorities.
5. In the aforementioned judgment of 22 September 2006, the Tribunal pointed out that: “The activities of a (Sejm) committee may not consist in (…) replacing or usurping the powers of the authorities that are by virtue of law (the Constitution) obliged to exercise those powers. The committee – as an internal authority of the Sejm – may not be assigned the status of a super-authority which would be superior to other public authorities”. Hence, subjecting the NBP to the Sejm’s supervision would constitute a violation of the principle of the NBP’s independence. The Tribunal noted that “the NBP President lacks ‘immunity’ for the scope of his/her activity, but this does not entail that it is proper to create the impression of a situation of political pressure; such an impression may have ‘a chilling effect’ on the exercise of statutory powers entrusted to the authorities that are independent of the Sejm”.
6. The adjudicating bench of the Constitutional Tribunal in the present case upholds the well-established interpretation of Article 227 of the Constitution, in accordance with which the fulfilment of the NBP’s constitutional duties will be possible only when the authorities of the said bank will not be subjected to political pressure. The adjudicating bench of the Constitutional Tribunal in the present case upholds the view that the principle of the NBP’s independence constitutes one of the principles of the constitutional order, decoded from Article 227 of the Constitution.
7. An analysis of the constitutionality of the challenged provisions may not be conducted in isolation from the entirety of the provisions concerning the functioning of the Constitutional Liability Committee. The assessment of the constitutionality of the challenged provisions requires analysing them in the context of the entirety of the provisions on proceedings before the Constitutional Liability Committee.
8. In the present case, what is of key importance is the nature of the Constitutional Liability Committee and the rules of proceedings before the Committee. The Constitutional Liability Committee does not constitute an authority of the Tribunal of State, but is one of Sejm committees which does not even have the status of an inquiry committee. The composition of the Committee depends on the current majority in the Sejm. Therefore, this is a political body, and a majority therein is made up of Sejm Deputies of the ruling coalition. The Act on the Tribunal of State provides no guarantees as regards the independence of the said Committee’s members or with regard to the impartial course of proceedings before the Committee.
9. The Constitutional Tribunal particularly emphasises a number of the Constitutional Liability Committee’s powers with legal effects which may be used as a means of exerting pressure on persons summoned to appear before the said Committee. The Committee is authorised to summon a person who is to be indicted before the Tribunal of State as well as to summon other persons as witnesses, and also it has unlimited access to documents. Despite the fact that the Constitutional Liability Committee is not an inquiry committee, it holds powers which are similar to those of an inquiry committee, and may without any restrictions summon employees of other state institutions, e.g. employees of the NBP, as well as obtain access to the NBP documents. In proceedings before the Committee, witnesses and experts are exempted from the obligation to respect the confidentiality of secret information. An analysis of the powers of the Constitutional Liability Committee indicates that the Committee is a quasi-inquiry committee, vested with a broad scope of powers as regards obtaining information from witnesses and accessing the contents of documents.
10. The Constitutional Tribunal draws attention to the fact that the Act on the Tribunal of State does not provide for the guarantees of the rights of parliamentary opposition, and in particular the guarantees of proportional participation of opposition parties in the work of the said Committee.
11. The powers of the Constitutional Liability Committee go far beyond the remit of the Sejm’s powers, which are specified in the Polish Constitution. The Constitutional Liability Committee has been entrusted with a number of powers with legal effects e.g. the power to give legally-binding instructions to the Public Prosecutor-General. The Act does not specify the catalogue of possible instructions which may be given to the Public Prosecutor-General. The Committee does not constitute an independent and impartial authority, but is a political body. It ought to be noted that in a democratic state ruled by law, the Public Prosecutor-General should be independent of the Sejm. The Constitutional Liability Committee’s right to give instructions to the Public Prosecutor-General entails that both the Public Prosecutor-General and the public prosecution service as a whole become subordinate to the Constitutional Liability Committee for the period of proceedings before the Committee. This amounts to the possibility of using not only the powers of the Committee but also the powers of the public prosecution service as a means of exerting pressure on the NBP President and the NBP employees.
12. In proceedings before the Constitutional Liability Committee, there is also no possibility of appealing against the Committee’s decisions to another authority.
13. The indicated legal provisions make it possible to draw the conclusion that, although the Constitutional Liability Committee is merely one of Sejm committees – i.e. a Sejm authority the composition of which is determined by a Sejm majority, and which is political in nature – the said Committee has been vested with the powers of an inquiry committee and, in the procedure for instituting proceedings before the Tribunal of State, the role of the Committee resembles the role of the public prosecution service in criminal proceedings. Such a solution violates the principle of the tri-division of powers, which constitutes a key principle in a democratic state ruled by law.
14. The Constitutional Tribunal notes that the special powers of the Constitutional Liability Committee have no basis in the Constitution. The Constitution provides for the possibility of holding the NBP President accountable before the Tribunal of State; however, the Constitution does not provide for a kind of preliminary examination of an application in that regard, which would precede the proceedings before the Tribunal of State. The Constitutional Tribunal points out that proceedings before the Constitutional Liability Committee constitute Sejm proceedings, and not proceedings before the Tribunal of State.
15. The constitutional principle of the independence of the NBP and its authorities rules out the possibility of granting powers which might be used as exercised to exert pressure on the central bank to bodies that are political in nature e.g. Sejm committees. The exercise of the statutory powers by the Constitutional Liability Committee with regards to the NBP President and the employees of that bank may paralyse the NBP’s work. The Constitutional Tribunal deems that the position of the Constitutional Liability Committee and the scope of its powers violate the principle of the NBP’s independence.
16. Although the applicants have included the provisions in the scope of their allegations only with regard to the NBP President, the Tribunal finds it necessary to emphasise that the application of the challenged provisions of the Act on the Tribunal of State with regard to the President of the Supreme Audit Office and the President of the National Council of Radio and Television Broadcasting would result in the violation of the independence of those authorities. Both the President of the Supreme Audit Office and the President of the National Council of Radio and Television Broadcasting have the status of constitutional authorities, and this status is incompatible with the current rules of proceedings before the Constitutional Liability Committee, as a political authority being subordinate to a particular Sejm majority currently in power.
17. Taking the above into consideration, the Tribunal has adjudicated as in the operative part of the judgment.
18. The Constitutional Tribunal also underlines that the publication of its judgments is an obligation arising from the Constitution which lies with all state authorities, and in particular with the President of the Government Legislation Centre. Moreover, it is necessary to modify the provisions of the Act on the Tribunal of State so that they would comply with constitutional requirements.
19. The judgment in the present case takes effect as of the day of its delivery by the Constitutional Tribunal, which occurred at today’s hearing. The Tribunal’s ruling declaring the unconstitutionality of the challenged provisions entails that all proceedings conducted on the basis thereof will lose their legal basis.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: President of the Constitutional Tribunal, Judge Julia Przyłębska – Presiding Judge; Judge Krystyna Pawłowicz – Judge Rapporteur; Judge Zbigniew Jędrzejewski; Judge Bartłomiej Sochański; and Judge Bogdan Święczkowski.