The Electoral Code in Poland K 9/11
Two-day elections are inconsistent with the Constitution. Postal and Proxy voting are consistent with the Constitution. Television and radio ads as well as billboards are not to be ruled out. Single-member constituencies are consistent with the Constitution.
At the hearing on 14 July 2011 at 8.30 a.m., the Constitutional Tribunal (full bench) considered an application, submitted by a group of Sejm Deputies, concerning the Electoral Code.
In the judgment of 20 July 2011, the Constitutional Tribunal adjudicated that:
1. Article 4(2) and (3), Article 26(3), Article 39(2) in the part which includes the wording "if voting is held on a single day", Article 39(3), Article 39(7), second sentence, in the part beginning with the wording "and if voting is held over two days", Article 43 and Article 69(2) of the Act of 5 January 2011 - the Electoral Code:
a) insofar as they concern elections to the Sejm of the Republic of Poland and to the Senate of the Republic of Poland, are inconsistent with Article 98(2) and (5) of the Constitution, b) insofar as they concern presidential elections, are inconsistent with Article 128(2) of the Constitution.
2. Article 4(2) and (3), Article 39(3) and Article 43 of the Act referred to in point 1 above, insofar as they concern elections to the European Parliament, elections to the constitutive organs of units of local self-government as well as the elections of mayors of villages, towns and cities, are not inconsistent with Article 98(2) and (5) as well as with Article 128(2) of the Constitution.
3. Article 4(2) of the Act referred to in point 1 above is inconsistent with Article 2 of the Constitution as well as is not inconsistent with Article 7 of the Constitution.
4. Article 51(1) in the part which includes the wording "his/her proxy" as well as Article 38(1) in conjunction with the provisions of Part I, Chapter 7, of the Act referred to in point 1 above:
a) insofar as they concern proxy voting in elections to the Sejm and the Senate, presidential elections as well as elections to the constitutive organs of units of local self-government, are consistent with Article 62(1) in conjunction with Article 32(1) of the Constitution, and with the principle of formal equality of electoral rights which arises therefrom,
b) insofar as they concern proxy voting in elections to the European Parliament, are not inconsistent with Article 62(1) in conjunction with Article 32(1) of the Constitution,
c) insofar as they concern elections to the Sejm, are consistent with Article 96(2) of the Constitution as well as are not inconsistent with Article 97(2) and Article 127(1) of the Constitution,
d) insofar as they concern elections to the Senate, are consistent with Article 97(2) of the Constitution as well as are not inconsistent with Article 96(2) and Article 127(1) of the Constitution,
e) insofar as they concern presidential elections, are consistent with Article 127(1) of the Constitution as well as are not inconsistent with Article 96(2) and Article 97(2) of the Constitution,
f) insofar as they concern elections to the constitutive organs of units of local self-government, are consistent with Article 169(2), first sentence, of the Constitution.
5. Article 38(2) in conjunction with Articles 62 and 66 of the Act referred to in point 1 above, insofar as it provides for voting away from the polling station of a district electoral commission:
a) as regards elections to the Sejm, is consistent with Article 96(2) of the Constitution, and with the principle of the secret ballot, expressed therein,
b) as regards elections to the Senate, is consistent with Article 97(2) of the Constitution, and with the principle of the secret ballot, expressed therein,
c) as regards presidential elections, is consistent with Article 127(1) of the Constitution, and with the principle of the secret ballot, expressed therein.
6. Articles 65 and 66 of the Act referred to in point 1 above, insofar as they mention sending ballot papers as an element of the procedure for postal voting:
a) as regards elections to the Sejm and the Senate as well as presidential elections, are consistent with Article 62(1) of the Constitution,
b) as regards elections to the European Parliament, are not inconsistent with Article 62(1) of the Constitution.
7. Article 66 of the Act referred to in point 1 above, insofar as it mentions filling in ballot papers before the election day as an element of the procedure for postal voting:
a) as regards elections to the Sejm and the Senate, is consistent with Article 98(2) and (5) of the Constitution,
b) as regards presidential elections, is consistent with Article 128(2) of the Constitution.
8. Article 110(4) in conjunction with Article 495(1)(4) of the Act referred to in point 1 above, are inconsistent with Article 54(1) in conjunction with Article 31(3) of the Constitution as well as are consistent with Article 32 of the Constitution.
9. The Act of 3 February 2011 amending the Electoral Code is inconsistent with Article 2 of the Constitution and with Article 54(1) in conjunction with Article 31(3) of the Constitution, as well as is consistent with Article 32 of the Constitution.
10. Article 260 and Article 261(1)-(3) of the Act referred to in point 1 above, as well as Annex 2 to the said Act, are not inconsistent with Article 62(1) in conjunction with Article 32(1) of the Constitution.
11. Article 260, Article 261, Article 264(1), Article 268, Article 269, Article 272(3), Article 273(1) and (4) as well as Article 274 of the Act referred to in point 1 above, and Annex 2 to the said Act, are consistent with Article 121(2) of the Constitution.
12. Article 16(1) and (2) in conjunction with Article 1 of the Act of 5 January 2011 - the Provisions implementing the Electoral Code, due to the fact that it makes determining which legal regulation of elections is to be applied conditional on the day of ordering elections, is inconsistent with Article 2 of the Constitution as well as is not inconsistent with Article 10 of the Constitution.
As to the remainder of the application, the Tribunal discontinued the proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Andrzej Rzepliński (President of the Contitutional Tribunal), Zbigniew Cieślak, Maria Gintowt-Jankowicz, Mirosław Granat, Wojciech Hermeliński, Marek Kotlinowski, Teresa Liszcz, Sławomira Wronkowska-Jaśkiewicz and Marek Zubik.
As regards the object of the review in this case, the group of Deputies indicated a few dozen provisions from three different statutes. The first of the statutes is the Electoral Code [the Code] enacted on 5 January 2011; the second one, adopted on the same day - the Provisions implementing the Electoral Code; and the third one - the Act of 3 February 2011 amending the Electoral Code. The last statute was challenged in its entirety.
The main allegations put forward by the applicants regarded new institutions of electoral law which had so far either been non-existent in the Polish law or existed to a limited extent. These were, inter alia, the following institutions: two-day voting, proxy voting, postal voting, and single-member constituencies in elections to the Senate. The allegations also concerned bans on the use of large-format election posters and slogans as well as paid election radio and TV ads. Additionally, with regard to elections to the Senate, the applicants also challenged the legislative procedure in accordance with which the Electoral Code had been adopted, alleging that the Senate amendments concerning single-member constituencies in elections to the Senate were unconstitutional. Also, they requested the review of: the provisions specifying the entry into force of the Electoral Code and the first amendment to the Code, the provisions specifying the application of the Electoral Code as well as - to some extent - the provisions repealing the Act on Elections to the Sejm and the Senate.
In the application (point 7), the Deputies challenged the constitutional possibility of carrying out elections to the Sejm and the Senate on the basis of the Electoral Code, rather than the Act of 2001 on Elections. At the hearing, the applicants extended the scope of their application, requesting the Tribunal to render the operative part of its judgment in such a way that the Electoral Code would not at all enter into force. Regardless of the fact that the Tribunal could not take into account the extended scope of the application submitted at the hearing, in both cases the applicants requested the Tribunal to create a legal norm which would abrogate the Electoral Code and would reinstate the Act on Elections. Such a ruling would be constitutionally inadmissible.
Bearing in mind the broad scope of the allegation, the Tribunal limited the substantive review to the provisions which regulated the essence of the said institutions, i.e. framework provisions setting out the institutions of electoral law. Including the remaining provisions within the scope of the substantive review was inadmissible, in particularly due to the fact that the applicants did not specify the allegations of their unconstitutionality separately.
The applicants indicated various higher-level norms for the constitutional review of the challenged provisions. They usually referred those higher-level norms to the provisions on a given challenged institution in a uniform way, also when the norms were adequate for only one type of elections regulated by the Code. The inadequacy of the higher-level norms for review is manifested in those fragments of the operative part of the judgment which contain the wording: "the provision is not inconsistent with the indicated higher-level norm for review". This means that the selected higher-level norm is inadequate for the review of the challenged provision, which makes it impossible for the Tribunal to determine its constitutionality. The inadequate higher-level norms for review were, inter alia, the constitutional provisions indicated by the applicants with regard to elections to the European Parliament. The Tribunal had consistently adjudicated that the provisions of the Constitution did not regulate European elections (cases K 15/04 and K 18/04). Indeed, the European Parliament is not a body exercising its powers in the Republic of Poland, but is an EU body. For these reasons, the operative part of the judgment contains the wording that the challenged provisions of the Electoral Code, insofar as they concern elections to the European Parliament, are not inconsistent with the Constitution.
Examining the constitutionality of the challenged provisions, the Tribunal took into account two significant circumstances.
Firstly, the fact that these provisions were not yet binding, and hence there was no possibility of examining the practice of their application. Adjudication on the unconstitutionality of such provisions was possible, provided that their literal wording directly ruled out the possibility of interpreting them in accordance with the Constitution.
Secondly, the Tribunal took into account the fact that a majority of the legal regulations which had been challenged in that case had been adopted by way of consensus by all political factions in the Polish Parliament. The Electoral Code was passed unanimously by the Sejm. During the 3rd reading, 430 Deputies voted for the adoption thereof, out of 430 taking part in the vote, including the Deputies who signed the application to the Tribunal in the present case.
The substantiation of particular points in the operative part of the judgment should begin with those which were deemed unconstitutional. The Tribunal adjudicated that the standards of constitutionality were not met by three solutions contained in the Electoral Code, i.e. a legal regulation which provided for elections to the Polish Parliament and presidential elections to be held over two days, a regulation which banned the use of large-format election posters and slogans as well as a regulation which banned the use of paid election radio and TV ads. Moreover, the Tribunal declared the unconstitutionality of a regulation, included in the Provisions implementing the Electoral Code, which made the application of the Electoral Code conditional on the day of ordering elections.
As regards the other challenged provisions of the Electoral Code, the Tribunal declared them to be constitutional. This concerned proxy voting, postal voting as well as single-member constituencies in elections to the Senate. The Tribunal adjudicated that the legislative procedure, in accordance with which the Code had been enacted, met constitutional requirements.
As to the remainder of the application, the Tribunal discontinued the proceedings, on the grounds that the pronouncement of a judgment was inadmissible. The reasons for the discontinuation are different for particular provisions and will be presented in detail in a written statement of reasons for the judgment. What should be mentioned at this point is a significant adjudication falling within the scope of the discontinuation of the proceedings; namely, the Tribunal discontinued the proceedings on the review of constitutionality of Article 10(3) of the Provisions implementing the Electoral Code, which were to repeal the Act on Elections to the Sejm and the Senate as of 1 August 2011. The said provision was challenged insofar as it provided for derogating the provisions of the Act on Elections which regarded elections to the Senate. The applicants challenged the provision, hoping that this would fill in a gap which would emerge in the law if the Tribunal declared the unconstitutionality of the institution of elections in single-member constituencies in the context of elections to the Senate. In the view of the applicants, in that place, the provisions of the Act on Elections concerning multi-member constituencies could still be applied. However, the Tribunal did not agree with the allegations of unconstitutionality of regulations introducing single-member constituencies in elections to the Senate. Thus, no gap emerged. For that reason, the allegation proved to be groundless, and the proceedings were discontinued due to the fact that the pronouncement of a judgment was inadmissible.
Reasoning for point 1 of the operative part of the judgment
The Tribunal determined that the applicants' allegations were apt as regards the non-conformity of Article 4(2) and (3) of the Code - which provides for two-day voting in elections to the Sejm and the Senate as well as in presidential elections - respectively to Article 98(2) and (5) as well as Article 128(2) of the Constitution.
Article 98(2) of the Constitution stipulates that the President of the Republic of Poland shall order elections to the Sejm and the Senate to be held on a non-working day, whereas Article 98(5) of the Constitution concerning elections ordered due to the shortening of the term of the Sejm and the Senate - provides for the President to schedule the elections for "a day falling (...)". Likewise, Article 128(2) of the Constitution, which regards presidential elections, stipulates that the Marshal of the Sejm sets the date for the said elections for a non-working day. In the opinion of the Tribunal, the Constitution determines the fact that elections to the Sejm and the Senate as well as presidential elections must be held on a single day.
Due to the fact that the content of the above constitutional provisions is fundamentally concurrent (with the proviso that there is no requirement for the voting day to be a non-working day, as regards elections to the Sejm and the Senate ordered as a result of the shortening of the terms of the two houses of the Polish Parliament), the Tribunal presented the reasoning for the non-conformity of the said challenged provisions of the Electoral Code together to the above higher-level norms for constitutional review.
What should be pointed out is that Article 98(2) and (5) as well as Article 128(2) of the Constitution contain the term "elections", whereas Article 4 of the Electoral Code, in its paragraph 1 (which was not challenged), mentions elections, but its paragraphs 2 and 3, which were the object of the examination by the Constitutional Tribunal, mention "voting in elections"; however, it clearly follows from the content of these provisions that the two terms mean the same, i.e. voting. In the constitutional provisions constituting higher-level norms for the review of Article 4(2) and (3) of the Code, the term "elections" means voting.
The Tribunal did not share the stance of the Sejm that the term "elections", in the light of those provisions, did not mean voting, but the moment when all votes cast in an electoral process were accumulated by the bodies responsible for the organisation of elections (...), which also indirectly indicated that the end of the election day was closely linked with finalising the voting process.
Adopting such an interpretation of the term "elections" would allow to regard only the last day of voting as the election day, regardless of the number of the preceding days of voting, which is inadmissible. If the election day is understood as a day when there is "the moment when all votes cast in an electoral process are accumulated by the bodies responsible for the organisation of elections" (finalising the voting process), then one should speak about electing as the effect of voting and about the day of electing, and not about an election and the election day (with the proviso that this is about an election to one organ of public authority or to one office).
The provisions of the Constitution indicated as higher-level norms for review always mention the term "the day of the elections" in singular, which - in the opinion of the Tribunal - weighs in favour of the fact that elections understood as voting should be held on a single day, in principle being a non-working day.
The Tribunal did not share the Sejm's view that voting held on a single day constituted a minimum guarantee for the exercise of the right to vote by citizens. The said minimum might be expanded by means of an ordinary statute, the result of which was to be two-day voting. In other words, in the opinion of the Sejm, two-day voting was "pro-citizen expansion of the constitutional principles and norms". Such a thesis undermines the binding force of constitutional provisions which it regards as sui generis semi-imperative norms which allow for the ordinary legislator's law-making powers to "correct" the constitution-maker with regard to expanding or enhancing the principles of democracy.
Also, the applicants alleged that Article 4(2) and (3) as well as other provisions concerning two-day voting infringed on the principle of fair elections, derived from Article 2 of the Constitution (from the principle of a democratic state ruled by law). It should be emphasised that the applicants referred the said higher-level norm for constitutional review to any elections - not only to elections to the Sejm and the Senate as well as presidential elections, but also to elections to the European Parliament and local self-government elections, which were not, in principle, regulated in the Constitution. The applicants did not present arguments to support that allegation, and hence the Tribunal discontinued the proceedings within that scope.
The applicants focused on Article 4(2) and (3) of the Code, although they also indicated other provisions concerning two-day voting, intending to eliminate all the provisions regulating that issue from the Code. The Tribunal shared the applicants' view in that respect, as it would be inappropriate if, after the elimination of Article 4(2) and (3) from the Code, the regulation specifying the consequences of ordering such voting would still remain therein. Consequently, the Tribunal declared the unconstitutionality of all "related" provisions, stating that the arguments for the unconstitutionality of the institution of two-day voting referred to the entirety of the provisions concerning that legal institution.
In point 2 of the operative part of the judgment, the Tribunal adjudicated that Article 4(2) and (3), Article 39(3) as well as Article 43 of the Electoral Code, i.e. the provisions providing for ordering two-day voting, insofar as they concerned elections to the European Parliament, elections to the constitutive organs of units of local self-government as well as the elections of mayors of villages, towns and cities, were not inconsistent with Article 98(2) and (5) as well as with Article 128(2) of the Constitution.
The reason for such adjudication is the inadequacy of the higher-level norms for review indicated by the applicants. Article 98(2) and (5) of the Constitution concerns elections to the Sejm and the Senate, and Article 128(2) of the Constitution regards presidential elections. Therefore, both these provisions may not constitute a point of reference for the review of provisions regulating elections to the European Parliament as well as local self-government elections.
Reasoning for point 3 of the operative part of the judgment
The applicants also alleged that the provision of Article 4(2) of the Electoral Code was inconsistent with the principle of specificity of legal regulations, arising from Article 2 of the Constitution, as well as with the principle that the organs of public authority were to function on the basis of, and within the limits of, the law, expressed in Article 7 of the Constitution. In the opinion of the applicants, Article 4(2) of the Code did not specify the premisses which should be guidelines for the authority ordering elections, when deciding about two-day elections, and thus it granted freedom to that authority in that respect. Another argument was that the said provision did not specify when the authority ordering elections might issue such a decision - whether at the time of ordering elections or also at a different date. Also, there was some concern that the said authority, when deciding about two-day elections and choosing the date for issuing a decision in that regard, might be guided not only by legal premisses, but also by political ones.
The Tribunal shared the applicants' allegations as regards the non-conformity of Article 4(2) of the Electoral Code to Article 2 of the Constitution, due to the fact that the powers of the authority ordering elections with two-day voting were specified too laconically. The said provision does not indicate whether a decision in that regard should be included in a decision to order elections, or whether it should, or may, constitute a separate legal act to be issued by the authority ordering elections. Neither does the provision determine whether - if the decision in that regard constituted a separate legal act - it should be issued on the same day as the decision to order elections, or whether it may be issued at a different time, in particular at a later date. This entails that the authority ordering elections may issue a decision about two-day voting shortly before the date of elections, which may be unexpected to some of the election committees. This follows from the fact that Article 4(2) enables the authority ordering elections to decide freely whether voting in given parliamentary elections will be held on a single day or over two days. The same regards presidential elections, European elections and local self-government elections. In any subsequent elections - e.g. parliamentary elections - the said authority may take a different decision. Such uncertainty on the part of voters is constitutionally unacceptable, and such a regulation is contrary to the requirement that enacted law should enhance citizens' confidence and trust in the state and its laws.
Since the Tribunal stated that the constitutional provisions, in their present form, rule out the possibility of holding two-day voting in parliamentary and presidential elections, therefore the provision allowing the authority ordering elections to schedule two-day voting should also be deemed unconstitutional. Hence, Article 4(2) of the Code is unconstitutional, insofar as it concerns parliamentary and presidential elections.
At the same time, since the Constitution does not contain the requirement for elections to the European Parliament as well as local self-government elections to be held on a single day, the judgment of the Tribunal states in this regard that the legislator must, if he so wishes, clearly specify whether elections to the European Parliament as well as local self-government elections are to be held on a single day or over two days. Each change of the duration of voting will, therefore, require the legislator's intervention, providing for the period of at least 6 months from the promulgation of a statute to the setting of the date of elections.
Moreover, the Tribunal stated that Article 4(2) of the Electoral Code was not inconsistent with Article 7 of the Constitution.
In point 4 of the operative part of the judgment, the Tribunal stated that the provisions concerning the institution of a proxy for voting were consistent with the principle of equal electoral rights and with the principle of direct elections. The principle of equal electoral rights was reconstructed on the basis of Article 62(1) in conjunction with Article 32(1) of the Constitution, whereas the principle of direct elections arises from Article 96(2) of the Constitution with regard to elections to the Sejm, from Article 97(2) as regards elections to the Senate, and from Article 127(1) of the Constitution with reference to presidential elections and Article 169(2), first sentence, of the Constitution as regards local self-government elections. The other higher-level norms for review were deemed inadequate, and thus the Tribunal adjudicated that the challenged provisions were not inconsistent therewith.
Proxy voting is one of alternative forms of voting, and at the same time it constitutes yet another guarantee of the exercise of the right to vote by citizens. It is not tantamount to the transfer of electoral rights from a person granting a proxy vote to a proxy. Proxy voting entails that a proxy is obliged to vote on behalf of a voter and to vote the way the voter wishes. The lack of control over the action taken by the proxy, i.e. in other words - over the content of the vote, arises from the principle of the secret ballot and creates necessity for a relation based on special trust between the voter and the proxy. Proxy voting makes it easier for (and at times it even enables) the disabled or the elderly to exercise their right to vote, although it burdens them with the obligation to find someone who is trustworthy.
Proxy voting is present in the legal systems of such EU Member States as Belgium, the Netherlands or the UK. Proposals to introduce that alternative method of voting have been put forward in Poland for many years. Finally, the institution of a proxy for voting was introduced into the Polish electoral system in December 2009, with regard to elections to the European Parliament, presidential elections as well as local self-government elections. The only legal act where such an institution was not present was the Act on Elections to the Sejm and the Senate. The Code's provisions concerning a proxy for voting, in fact, repeat the regulations contained in those three statutes. Consequently, the institution of a proxy for voting is not new in the Polish electoral law.
The regulation of the institution of a proxy for voting constitutes an exception, precisely specified by statute, to the principle set out in Article 38(1) of the Code, that voters cast votes in general elections in person, and at the same time it contains safeguards against possible abuse of the institution of a proxy for voting.
Proxy voting is meant for a small group of voters with serious or moderate disability, as well as for those over 75. By contrast, a proxy may only be a person who has been entered in the register in that same commune (Pol.gmina) as the voter or one with attestation that s/he has the right to vote. A proxy may not be a member of a district electoral commission, an observer overseeing an election or a candidate standing for election. A proxy may represent only one person; by way of exception - two persons, if the proxy's relationship with at least one of them is based on either close blood relations, adoption or marriage, or de facto marital cohabitation. There is no possibility of proxy voting in polling districts established in health-care centres, homes for the elderly, penitentiary institutions, and students' dormitories, as well as in polling districts established abroad and aboard Polish ships.
The guarantees against the abuse of the institution of a proxy for voting, to the detriment of fairness of elections, are the following requirements: a proxy vote shall be granted in the presence of a mayor or an employee of the office of a relevant commune who has been authorised by the mayor; a proxy vote certificate shall be issued in the place of residence of a given voter (by way of exception at a different location, upon request of the voter); the office of a relevant commune provides a list of issued proxy vote certificates; the voter may cancel a relevant proxy vote in the presence of the mayor no later than 2 days before the election day or may submit a relevant statement to a relevant district electoral commission on the election day; a proxy vote shall become invalid in the cases indicated in Article 58(2) of the Code; a proxy vote shall be - under a penalty - free of charge and may not bring any other advantages to the person granting a proxy vote.
Challenging the provisions concerning a proxy for voting, the applicants did not prove that the guarantees contained therein were insufficient from the point of view of constitutional standards. Therefore, there were no grounds for declaring their unconstitutionality.
The Tribunal adjudicated that the institution of a proxy for voting was consistent with the principle of direct elections, which entailed that voting had only one stage and that there was no obligation to vote in person. The previous provisions already allowed a disabled voter to rely on another person's assistance when casting his/her vote, with the exception of members of an electoral commission and observers overseeing an election. The assistance might include casting a vote on behalf of a given voter who despite being present at a polling station was not able to ensure that the vote was cast in accordance with his/her will, due to his/her state of health (e.g. a blind voter). The admissibility of providing assistance at a polling station to a blind voter who could not vote in person had not been challenged so far, from the point of view of the principle of direct elections. Although statutory regulations do not determine the meaning of constitutional terms, it should be noted that such a provision undermines the applicants' thesis that direct elections imply the necessity of voting in person.
Also, proxy voting is not inconsistent with the principle of equality of electoral rights in a formal sense. Indeed, a proxy casts a vote on behalf of a given voter, and not on his/her own behalf. Therefore, the proxy does not have two votes, but one vote for him/herself (as a voter) and one vote to be cast on behalf of another voter. In the latter case, the proxy is obliged to vote the way the voter wishes, as he/she is the one who has granted the proxy vote.
In points 5 and 6 of the operative part of the judgment, the Tribunal adjudicated that the institution of postal voting was consistent with the Constitution. This is also an alternative form of voting which implements the principle of universal suffrage. It allows voters residing abroad to cast votes if they find it difficult to arrive at the polling stations of district electoral commissions which are far away from their place of residence or stay. Postal voting is admissible in the following EU Member States: Austria, Belgium, Denmark, Estonia, Finland, Spain, Ireland, Lithuania, Germany or the UK. For years the proposal to introduce that form of voting in Poland has been put forward by scholars from the fields of law and political science, by the Polish Ombudsman, the National Electoral Commission as well as NGOs.
In point 5 of the operative part of the judgment, the Tribunal adjudicated that provisions on postal voting, by providing for voting away from a polling station, were consistent with the principle of the secret ballot. This means that no one else apart from the voter will know his/her voting decision.
For voters, secret ballot is an option, but not an obligation. Casting one's vote not anonymously is allowed, as long as this does not constitute an element of electoral campaign. Also, the principle of the secret ballot is not infringed by sharing voluntarily one's voting decision with others, regardless of the fact whether this takes place before or after elections.
As regards postal voting, the obligation to guarantee the secrecy of a voting decision that has already been made occurs at the moment of delivery of ballot papers to the polling station of a district electoral commission, by the postal service of the country of stay. The said obligation rests with the authorities of the Polish State (a consul and a district electoral commission). The consul transfers postal-ballot return envelopes, without opening them, to a district electoral commission where they are placed in a ballot box; if they are received after the close of poll, they are destroyed without being opened. Such a procedure for handling postal-ballot return envelopes guarantees the secrecy of voting.
What is of significance for the Tribunal's adjudication is that, in the resolution of 6 June 2011, the National Electoral Commission specified the technical conditions for postal voting, including: a procedure for transferring ballot papers, the way of securing a ballot box for postal-ballot return envelopes, a procedure for handling ballot papers received in return envelopes, and a procedure for handling return envelopes delivered to a district electoral commission after the close of poll. On the same day, the National Electoral Commission adopted a resolution specifying the template and size of a return envelope, an envelope for ballot papers, a statement about voting in person and in secret as well as a voting instruction sheet, which are used for postal voting in polling districts established abroad. The applicants did not challenge the provisions concerning guarantees contained in these resolutions.
In point 6 of the operative part of the judgment, the Tribunal adjudicated that the provisions concerning postal voting, insofar as they mentioned sending ballot papers as an element of the procedure for postal voting, were consistent with Article 62(1) of the Constitution. The applicants argued that the procedure for sending ballot papers did not guarantee voters that their votes would actually reach an electoral commission, which in turn would infringe on citizens' right to vote, as set out in Article 62(1) of the Constitution.
The applicants did not prove that the provisions of Chapter 8 of the Code infringed on the right to vote. They only put forward a general allegation of the lack of sufficient guarantees for the implementation of the principle of universal suffrage. However, they did not indicate which of the existing statutory guarantees were insufficient in their opinion.
In point 7 of the operative part of the judgment, the Tribunal adjudicated that Article 66 of the Code, insofar as it included filling in ballot papers before the election day as an element of the procedure for postal voting, with regard to elections to the Sejm and the Senate, was consistent with Article 98(2) and (5) of the Constitution, and as regards presidential elections was consistent with Article 128(2) of the Constitution.
The procedure for postal voting encompasses the moment of sending ballot papers by a consul, followed by filling them in and sending then back to the consul, until placing postal ballot papers in a ballot box (together with an undamaged return envelope). Although the last action is not done directly by the voter, but by the members of a district electoral commission, may only take place on the election day. Placing ballot papers in a ballot box is the last element of the voting procedure and it determines the effectiveness of a voting decision. This means that, also in postal voting, voters cast their votes on the election day. The applicants' allegation that voting takes place before the election day is groundless.
The act of voting is fulfilled only when a ballot paper is placed in a ballot box. The mere fact of filling in a ballot paper, is not tantamount to casting a vote. Indeed, it may not be assumed that a voter who receives a ballot paper at a polling station, fills it is, and then does not place it in a ballot box, but destroys it or takes it away from a polling station, casts a vote in an election. Voting takes place no earlier than at the moment of placing a ballot paper in a ballot box. The same applies to voters in the case of postal voting. Just as voters casting their votes at a polling station, they cast their votes at the moment when postal ballot papers filled in by them are placed in a ballot box. If a voter fills in a ballot paper but does not send it or the ballot paper sent by post is not placed in a ballot box, then it may not be stated that he or she has effectively cast a vote in an election. Since the act of voting in the case of postal voting is completed at the moment of placing a ballot paper in a ballot box, and the action takes place on the voting day, this means that, also in postal voting, votes are cast on the voting day. Therefore, the allegation of voting before the election day in the case of postal voting is groundless.
Reasoning for points 8 and 9 of the operative part of the judgment
In points 8 and 9 of the operative part of the judgment, the Tribunal adjudicated that the following were inconsistent with Article 54(1) in conjunction with Article 31(3) of the Constitution: Article 110(4) in conjunction with Article 495(1)(4) of the Electoral Code as well as the Act of 3 February 2011 amending the Electoral Code. The said provisions ban under the penalty of a fine - the use of election posters and slogans the surface area of which exceeds 2 square meters as well as the broadcast of paid election radio and TV ads by state-owned and private broadcasters.
The Tribunal assumed that Article 54 of the Constitution, the content of which was often summed up as "freedom of speech", set out three freedoms which were interrelated: a) the freedom to express opinions, b) the freedom to acquire information, and c) the freedom to disseminate information.
Despite the fact that the freedom of speech is regulated in Chapter II of the Constitution, entitled "The Freedoms, Rights and Obligations of Persons and Citizens", it has a "mixed" character - being a personal freedom in the realm of private life and a political freedom in the realm of public life.
What is of fundamental significance is the freedom of speech in public life. When juxtaposed with Article 14 of the Constitution ("The Republic of Poland shall ensure freedom of the press and other means of social communication."), it ceases to be merely a freedom of the individual (or of a collective entity), and it also gains the characteristics of a systemic principle. The effective functioning of modern democracies requires the application of various means of communication, including, in particular, electronic ones. Unrestrained and vast flow of views and information from political parties and election committees to citizens (voters) is particularly important at the time of elections to the organs of public authority and the elections of individuals to hold particular offices, which are the most intense manifestation of the principle of democracy. Free elections, the freedom of speech and, in particular, free political debates together constitute the foundation of each democratic system; they are interrelated and enhance each other.
The Tribunal states that those entitled to the freedom of speech, as expressed in Article 54(1) of the Constitution, may be individuals (natural persons) as well as collective entities, including political parties and election committees.
The freedom to express opinions and the freedom to disseminate information, in the context of implementing democracy, and especially during elections, are particularly significant to political parties and election committees. The freedom to acquire information is the right of citizens, as voters, to learn as much as possible about parties participating in elections and their candidates.
Disseminating information is understood as providing information (data) to selected third parties as well as propagating it, i.e. making it known to the public, inter alia, by using means of social communication, including - the most popular in our times - electronic media.
Provided for by the Code, the ban on the use of election posters and slogans the size of which exceeds a certain limit set forth in the Code as well as the ban on broadcasting paid election radio and TV ads undeniably restrict not only the freedom to express opinions and to disseminate information (on the part of political parties and election committees), but also the freedom to acquire information (on the part of voters).
These restrictions do not pass the test of proportionality, as specified in Article 31(3) of the Constitution, primarily because one may not indicate values, among those enumerated in the provision, which would justify the ban on using large-format election posters or on broadcasting paid election radio or TV ads. The restrictions are justified neither by the general clause about public order, nor by the argument - used in the explanatory note to the draft of the Code - that such bans were to "improve the quality of political discourse" as well as optimise the spending of funds allocated for electoral campaigns which, in the case of a political party, mainly come from the state budget. If the restrictions were to be justified by a change in the way funds are spent on campaigns by election committees, then the legislator should appropriately modify the provisions on financing electoral campaigns, rather than force changes in this regard by means of instruments which would limit the freedom of speech.
The Tribunal pointed out that the said restrictions concerned one of the fundamental personal and political freedoms as well as a systemic principle. Therefore, declaring that the restrictions are constitutional would require irrefutable premisses, which are missing in this case.
In point 9 of the operative part of the judgment, the Tribunal stated that the Act of 3 February 2011 as a whole was inconsistent with Article 2 of the Constitution, due to the fact that it had been enacted in breach of legislative silence, i.e. the requirement that significant changes are introduced in electoral law no later than 6 months before the beginning of elections.
In point 10 of the operative part of the judgment, the Tribunal adjudicated that Article 260 and Article 261(1)-(3) of the Code as well as Annex 2 to the Code, i.e. provisions on single-member constituencies in elections to the Senate, were not inconsistent with Article 62(1) in conjunction with Article 32(1) of the Constitution. On the basis of these two provisions, the applicants constructed the principle of substantive equality in elections to the Senate. However, this principle has not been expressed in Article 97(2) of the Constitution, i.e. in relation to elections to the Senate, and it may not be reconstructed from other constitutional provisions.
The electoral system to the Senate may thus disregard a clear connection between the number of voters in a constituency and the number of seats allocated to that constituency. The lack of a constitutional requirement which would guarantee the implementation of the principle of substantive equality in elections to the Senate means that this matter falls within the scope of the legislator's regulatory freedom.
Since the principle of substantive equality in elections to the Senate does not follow from the higher-level norms for review indicated by the applicants, i.e. Article 62(1) in conjunction with Article 32(1) of the Constitution, they constitute an inadequate higher-level norm for the review of the challenged provisions on single-member constituencies in elections to the Senate. For that reason, the Tribunal adjudicated that the challenged provisions were not inconsistent with Article 62(1) in conjunction with Article 32(1) of the Constitution.
In point 11 of the operative part of the judgment, the Tribunal adjudicated that the provisions on single-member constituencies in elections to the Senate were consistent with Article 121(2) of the Constitution. This way the Tribunal stated that the Senate, by shaping the said provisions by means of its own amendments which the Sejm had not rejected, had not gone beyond the scope of its powers, guaranteed by Article 121(2) of the Constitution. The amendment adopted by the Senate did not fall outside the scope of admissible Senate amendments.
The draft of the Electoral Code did not provide for single-member constituencies in elections to the Senate. Such a proposal was put forward during the work of the Special Committee after the 1st reading. It was included in the Committee's report and included in the consolidated text of the draft of the Code. During the 2nd reading in the Sejm, the issue of single-member constituencies in elections to the Senate was the subject of discussion, as well as the proposal to maintain multi-member constituencies. After the 2nd reading, the draft was returned to the Special Committee, which proposed the rejection of amendments maintaining multi-member constituencies. During the 3rd reading, despite the recommendations of the Special Committee, the Sejm maintained the previous electoral system in elections to the Senate, and the Code was submitted to the Senate. The Senate committees which examined the statute recommended the amendments introducing single-member constituencies. The Senate adopted the amendments. The Sejm's Special Committee recommended the adoption of the Senate amendments. At the plenary sitting on 5 January 2011, the Sejm did not reject the Senate amendments concerning single-member constituencies, as a result of which the challenged provisions were included in the Code.
The Senate amendments were put forward to be included in a new statute, i.e. the Electoral Code, and not in the amendment to the already existing one. The Tribunal has stated in its previous jurisprudence that the Senate has greater freedom as regards proposing amendments to a new statute which regulates given matters for the first time or when this is a statute that repeals the existing statute as a whole and contains a new regulation of those matters.
In the case under examination, the Senate amendments consisted in proposing an alternative solution to the one that had been adopted by the Sejm, i.e. the introduction of single-member constituencies in elections to the Senate, instead of multi-member constituencies as well as changing the boundaries of constituencies with regard to elections to the Senate in Annex 2. Thus, the amendments concerned matters which were regulated in the statute submitted to the Senate for consideration. The Tribunal has adjudicated a number of times that "within the scope of matters regulated by a statute, the Senate amendments may provide for alternative solutions (which are contrary to those adopted by the Sejm)" - the judgment in the cases K 11/02, K 40/05 and K 5/07.
In their essence, the Senate amendments concerning single-member constituencies were equivalent to the provisions proposed by the Sejm's Special Committee, in its report after the 1st reading, which were the object of consideration by the Sejm until they were rejected during the 3rd reading, and which were ultimately include in Article 260, Article 261(1)(2), Article 261(3) and (4), Article 264(1) as well as Article 273(1) of the Electoral Code.
Adopted by the resolution of the Senate and not rejected by the Sejm, the amendment concerning single-member constituencies in elections to the Senate did not constitute an introduction of solutions, into the content of the statute, which had not been the object of legislative work in the Sejm before.
In point 12 of the operative part of the judgment, the Tribunal adjudicated that Article 16(1) and (2) in conjunction with Article 1 of the Provisions implementing the Electoral Code, due to the fact that it made determining which legal regulation of elections was to be applied conditional on the day of ordering elections, was inconsistent with Article 2 and was not inconsistent with Article 10 of the Constitution.
On the basis of Article 16 of the Provisions implementing the Electoral Code, the Code should be applied to elections ordered after the Code's entry into force and the terms of office commenced after holding those elections (paragraph 1), whereas as regards elections ordered before the Code's entry into force - the current provisions shall apply (paragraph 2).
In accordance with Article 1 of the Provisions implementing the Electoral Code, the Code is to enter into force after the lapse of 6 months from the day of its promulgation, i.e. on 1 August 2011. On the same day, pursuant to Article 10(3) of the Provisions implementing the Electoral Code, the Act of 2001 on Elections to the Sejm and the Senate shall cease to be binding.
It follows from the jurisdiction of the Tribunal, that there should be vacatio legis of at least 6 months between the date of entry into force of amendments to electoral law and the date of carrying out the first activity related to holding elections, i.e. ordering elections (cases K 31/06 and Kp 3/09). The aim of vacatio legis, extended in the case of elections, is to enable the participants of an electoral process to adjust their future activities. The Tribunal stated that the Electoral Code, enacted on 5 January 2011 and published in the Journal of Laws of 31 January 2011, met the standards specified by the Tribunal as binding in a democratic state.At the same time, the Tribunal emphasised that, from the point of view of the aim of the extended vacatio legis, it was irrelevant whether the Electoral Code would enter into force on 1 February, as it had initially been provided for in the Provisions implementing the Electoral Code in the version submitted to the Senate, or whether it would enter into force on 1 August, as it was ultimately regulated by the legislator, as a result of the Senate amendments (Article 1). What is decisive here is the fact that, in the context of simultaneous derogation of the Act on Elections as of 1 August (Article 10(3)), the law in accordance with which the nearest elections to the Sejm and the Senate should be carried out - has been known sufficiently in advance, i.e. half a year before the final date for ordering elections by the President (7 August 2011) and many days before the election day which will be held in the autumn of 2011 at the earliest. The Tribunal assumed that the regulation arising from Article 1 and Article 10(3) of the Provisions implementing the Electoral Code met the requirements of a democratic state, as it guaranteed legal security; since the publication of the Electoral Code, there has been certainty as to the legal regulation of autumn elections which should be held on the basis of provisions which are binding at the time of elections.
However, that positive assessment in the light of the constitutional law was negated which the applicants aptly challenged in their application to the Tribunal by means of the mechanism established in Article 16(1) and (2) in conjunction with Article 1 of the Provisions implementing the Electoral Code. Article 16(2) which stipulates that with regard to elections ordered before the Code's entry into force, i.e. 1 August 2011, the current provisions shall apply - maintains the binding force of the Act on Elections, despite its formal derogation as of 1 August and despite the entry into force of the Electoral Code on that day. This way determining the legal regulation of the next elections depends on the date when the President issues a decision to order elections. Consequently: if the decision is issued by the end of July - the elections will be governed by the Act of 2011 on Elections; whereas if the decision is issued on 1 August or later - the elections will be held in accordance with the provisions of the Electoral Code of 2011. In the context of the challenged regulation, until 31 July 2011, there is no certainty as to the regulation that will be binding during the autumn elections. Therefore, the Tribunal stated that the mechanism which arose from Article 16(1) and (2) in conjunction with Article 1 of the Provisions implementing the Electoral Code eliminated, in practice, legal security which was guaranteed by the enactment and publication of new electoral law at an appropriate time. It is this uncertainty introduced by Article 16(1) and (2) in conjunction with Article 1, which weighs in favour of the unconstitutionality of the challenged provisions. They infringe on the legal security of elections, and thus - the standards which are binding in a democratic state, which arise from Article 2 of the Constitution.
Declaring the unconstitutionality of the above-mentioned mechanism by the Tribunal, as it is set out in the Provisions implementing the Electoral Code, means that Article 16(1) and (2) is eliminated from the legal system and, as a result, certainty is restored as to the legal regulation of the autumn elections to the Sejm and the Senate, arising from Article 1 and Article 10(3) of the implementing Provisions.
Instead of the challenged transitional regulation, what will apply is the principle of direct effect of new law, i.e. the Electoral Code. As the Code will enter into force on 1 August 2011, and the next elections will be held after that date, the said elections will be regulated by the provisions thereof. The Electoral Code will also apply to an electoral campaign carried out after 1 August 2011. In the event the decision to order elections is issued before that day - the current provisions will apply to the electoral campaign run during the period until 31 July 2011, whereas the provisions of the Electoral Code will apply as of 1 August 2011.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the 1st Judge Rapporteur was Judge Marek Kotlinowski and the 2nd Judge Rapporteur was Judge Teresa Liszcz.
The judgment is final and its operative part shall be published in the Journal of Laws.