Disabled persons deprived of the possibility to hold the offices of mayors of villages, towns or cities K 51/12
A medical statement on total incapacity for work or incapacity for self-care issued after a given person has been elected to hold the office of the mayor of a village is consistent with the Constitution.
At the hearings on 29 October 2013 and 23 January 2014, the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to disabled persons deprived of the possibility to hold the offices of mayors of villages, towns or cities.
In its judgment of 23 January 2014, the Constitutional Tribunal adjudicated that Article 492 (1) (6) of the Act of 5 January 2011 ‑ the Polish Electoral Code, construed in the way that it concerned a medical statement on total incapacity for work or incapacity for self-care issued after a given person had been elected to hold the office of the mayor of a village, was consistent with Article 60 in conjunction with Article 31(3) the Constitution. As to the remainder, the Constitutional Tribunal discontinued the review proceedings.
The subject of the review was Article 492(1)(6) of the Electoral Code, which stipulated that a person’s term of office as the mayor of a village expired after a medical statement on total incapacity for work or incapacity for self-care had been issued with regard to that person. The provision was accordingly applicable to the mayors of towns or cities. The applicant argued that the provision was inconsistent with 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. The Tribunal discontinued the proceedings with regard to the examination of conformity to Article 32 of the Constitution as well as Article 29(a) of the Convention, on the grounds that issuing a ruling within that scope was useless. Indeed, the Ombudsman had not proven that normative content arising from those provisions exceeded the scope of Article 60 of the Constitution. Thus, a higher-level norm for the review in the said case was Article 60 in conjunction with Article 31(3) of the Constitution.
What was of fundamental significance for adjudication in the said case was to determine the group of persons to whom challenged Article 492(1) (6) of the Electoral Code applied. The Constitutional Tribunal deemed that the provision applied only to mayors in office, and not to candidates standing for election to the said offices. Hence, the above-mentioned premiss concerning the expiry of the term of office in the case of a mayor occurred only after a medical statement on total incapacity for work or incapacity for self-care had been issued with regard to a person already holding the said office. Such an interpretation was justified by the following arguments.
Article 492 (1)(6) of the Electoral Code links the expiry of the term of office in the case of a mayor with the action of ‘issuing a medical statement on total incapacity for work or incapacity for self-care’. The point here is not the effect of the action as such. Since the premiss concerning the expiry of the term of the office is the action, and not the effect thereof, then the said action must take place after a given person was elected to the office, and thus after the election day.
Article 492 (1)(6) of the Electoral Code sets a certain time-limit which is vital as regards commencing the procedure for the expiry of the term of the said office. Total incapacity for work or incapacity for self-care should be stated for a period no shorter than until the end of the term of the office.
Since the period of incapacity has been linked with the length of the term of office in the case of mayors, the said incapacity needs to be stated before the term of the said office commences. Only then will it be known when the term expires.
The expiry of the term of the said office is confirmed by a competent electoral officer within the period of 14 days from the day on which the reason for the expiry occurred. Since the reason for the expiry of the term of the said office is a medical statement on total incapacity for work or incapacity for self-care then the indicated time-limit runs from the date the medical statement is issued and should overlap with a period after the commencement of the term of the said office.
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 stating the above-mentioned incapacity. In other words, the expiry of the term of the said office is to result from a medical statement on total incapacity for work or incapacity for self-care prepared by a medical expert from the Social Insurance Institution. If the incapacity is stated before a given person is elected, then the action may not be a premiss for the expiry of the term of the said office. At the moment when the incapacity was stated, the person concerned had not commenced the term of the office.
The same conclusion may be drawn from the systemic interpretation of the challenged provision. All the premisses for the expiry of the term of office mentioned in Article 492(1) of the Electoral Code are premisses that may occur only after a given person commences his/her term of office as a mayor, i.e. after the person is elected to the office. None of those premisses, including the premiss concerning the medical statement if it occurs before the election day, justifies the commencement of the procedure for the expiry of the term of the office.
Taking the above arguments into account, the Tribunal stated that the premiss for the expiry of the term of the said office was not every medical statement on total incapacity for work or incapacity for self-care, but only the one issued with regard to a person that had already been elected to the said office. At the same time, due to the fact that the interpretation of the challenged provision was the source of the dispute, the Tribunal deemed it necessary to specify the correct way of interpreting thereof in the operative part of its judgment. The provision understood that way was reviewed in respect of its conformity to the Constitution.
Challenged Article 492(1)(6) of the Electoral Code is one of provisions formulating the terms of holding a public office, and in particularly the office of a mayor. The said provision does not specify a prerequisite for being admitted to the office, as it does not apply to persons that stand for election to the office. But it expresses a condition that prevents a mayor from remaining in the office. A medical statement on total incapacity for work or incapacity for self-care issued with regard to a mayor in office for a period no shorter than until the end of the term of the office results in the expiry of the term of the office. In that very sense, Article 492(1)(6) of the Electoral Code restricts access to a public office.
The premiss for the expiry of the term of the said office due to the issuance of a medical statement on total incapacity for work or incapacity for self-care applies to all mayors. The Electoral Code does not provide for any exceptions in this respect. The manner of stating the said incapacity is the same for all persons holding the office. Every mayor as a local self-government official is subject to compulsory old-age and disability pension insurance. Hence, the provisions of the Act on Old-Age and Disability Pensions from the Social Insurance Fund specify the manner of adjudicating on the said incapacity. Thus, there is no doubt that the requirement of setting out consistent terms of access to public offices is met by challenged Article 492(1)(6) of the Electoral Code.
The provision, insofar as it specifies the premiss for the expiry of the term of the office, is also sufficiently detailed and precise. It makes reference to the Act on Old-Age and Disability Pensions from the Social Insurance Fund, in the context of stating total incapacity for work or incapacity for self-care. The said Act, in great detail regulates both the procedure for issuing that sort of statements as well as premisses for the said incapacity. Challenged Article 492(1)(6) of the Electoral Code contains the phrase “the term of office of a mayor shall expire”, and not “the term of office of a mayor may expire”. This means that in the case where the said premiss occurs the expiry of the term of the office is compulsory in character. In other words, a decision about the expiry of the term of the said office is not subject to discretion of an authority that is competent in that respect. Also, the period of total incapacity for work or incapacity for self-care which justifies the necessity to terminate the term of the office has been specified precisely. Indeed, what is meant here is the situation where such incapacity is stated for a period no shorter than until the end of the term of the office.
The Tribunal stated that Article 492(1)(6) of the Electoral Code did not infringe the principle of proportionality, in particular as regards the choice of means that were suitable for the implementation of the purpose set by the legislator. The point of that provision was to prevent a person who was not able to fulfil his/her duties related to the office, due to his/her medical condition, from holding the office until the end of the term. A medical statement on total incapacity for work or incapacity for self-care as a premiss for the expiry of the term of the said office fulfilled that purpose. When determining the degree of incapacity, and the period thereof, as well as the chances of regaining the capacity for work, the ability to perform one’s current work was also assessed. Since such a statement was issued with regard to a mayor in office, then it took account of further possibility of performing work related to the said office.
The challenged legal regulation, though regarded as consistent with the Constitution, it did have certain legislative defects. However, that did not weigh in favour of its unconstitutionality; nevertheless, they needed to be eliminated by the legislator. For that reason, the Constitutional Tribunal deemed that, in a separate decision, it would inform the Polish Parliament about the need to eliminate the legal gaps so as to preserve the coherence of the legal system.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was Judge Marek Kotlinowski.