The Constitutional Tribunal Act K 34/15
On 3 December 2015 at 9 a.m. the Constitutional Tribunal considered an application submitted by a group of Sejm Deputies with regard to the provisions of the Constitutional Tribunal Act of 25 June 2015 concerning, inter alia, the election of judges to the Tribunal, the status of judges, and proceedings before the Tribunal.
The Constitutional Tribunal adjudicated that:
1) Article 3 of the Constitutional Tribunal Act of 25 June 2015 is consistent with Article 2 of the Constitution and is not inconsistent with Article 197 of the Constitution;
2) Article 12(2) of the above Act is consistent with Article 2 of the Constitution;
3) Article 12(1) and (5) of the above Act is consistent with Article 144(3)(21) of the Constitution;
4) Article 19(2) of the above Act is consistent with Article 112 of the Constitution and is not inconsistent with Article 197 of the Constitution;
5) Article 21(1) of the above Act – interpreted other than that the President of the Republic of Poland is obliged to give the oath of office forthwith to a judge of the Constitutional Tribunal who has been elected by the Sejm – is inconsistent with Article 194(1) of the Constitution.
6) Article 24(1) and (2) in conjunction with Article 42(1) of the above Act is consistent with Article 196 of the Constitution;
7) Article 104(1)(3) of the above Act is consistent with Article 191(1) and Article 193 of the Constitution;
8) Article 137 of the above Act:
A) is consistent with Article 112 of the Constitution and is not inconsistent with Article 62(1) and Article 197 of the Constitution;
B) insofar as it concerns the judges of the Tribunal whose terms of office ended on 6 November 2015 – is consistent with Article 194(1) of the Constitution;
c) insofar as it concerns the judges of the Tribunal whose terms of office either ended on 2 December or will end on 8 December – is inconsistent with Article 194(1) of the Constitution.
As regards the remainder, the Constitutional Tribunal decided to discontinue the review proceedings.
1. The Tribunal ruled that Article 137 of the Constitutional Tribunal Act is unconstitutional, insofar as the provision made it possible for the Sejm, during its previous parliamentary term (2011-2015), to elect two judges to the Constitutional Tribunal in place of the two judges whose terms of office were to end respectively on 2 and 8 December 2015. By contrast, the provisions regulating the procedure for electing three judges who had been chosen to assume offices after the judges whose terms of office ended on 6 November 2015 were ruled to be constitutional.
According to the Tribunal, it follows from Article 194(1) of the Constitution that the Sejm has the obligation to elect a judge of the Constitutional Tribunal during the parliamentary term in the course of which the vacancy in the Constitutional Tribunal occurred. A judge of the Constitutional Tribunal may not be elected prematurely (i.e. too early) with regard to judicial offices that will be vacated during the next term of the Sejm.
As a result of the Tribunal’s ruling, in the case of the two judges of the Constitutional Tribunal whose terms of office either ended on 2 December or will end on 8 December 2015, the legal basis for electing their successors is unconstitutional. Consequently, further proceedings concerning the commencement of their terms of office are subject to closure.
Thus, there is no doubt about the validity of the legal basis for choosing candidates and carrying out the vote in the Sejm as regards the election of the three judges of the Tribunal, to assume the offices of the judges whose terms of office ended on 6 November 2015. The said candidates for judges of the Constitutional Tribunal had been elected by the Sejm during the parliamentary term in the course of which the vacancy in the Constitutional Tribunal occurred.
2. Moreover, the Tribunal held that Article 21(1) of the Constitutional Tribunal Act – concerning the oath of office taken by a newly-elected judge of the Constitutional Tribunal in the presence of the President of the Republic of Poland – imposes an obligation on the head of state to give the said oath of office forthwith. Any other interpretations of the provision are unconstitutional. The President of Poland is not an authority whose duty it is to choose judges to the Constitutional Tribunal. The Constitution does not at all provide for the President’s involvement in finding candidates for judicial offices in the Constitutional Tribunal. Hence, the provisions of the Act may not be construed in such a way that they vest the head of state with powers to choose judges of the Tribunal. The President may not take any action that would prevent a judge from commencing his/her term of office in the Constitutional Tribunal, if the judge has been elected by the Sejm on the basis of Article 194(1) of the Constitution. The Constitution does not provide for a possibility that the head of state may refuse to give the oath of office to a newly-elected judge of the Constitutional Tribunal, and any potential doubts that the head of state may raise as to the constitutionality of legal provisions on the basis of which judges have been elected to the Constitutional Tribunal may only be addressed by the Constitutional Tribunal. The giving of the oath of office to newly-elected judges of the Constitutional Tribunal is a statutory obligation of the President of Poland. The taking of the said oath makes it possible for a judge elected by the Sejm to the Constitutional Tribunal to commence performing his/her judicial duties, as well as it preserves the continuity of the Tribunal’s judicial activity. The lack of statutory provisions that set a time-limit for giving the oath of office must be construed in the way that the President of Poland is required to fulfil this obligation forthwith.
3. The Tribunal disagreed with the other allegations raised by the applicant.
The Tribunal deemed that the provisions of the Constitutional Tribunal Act which concerned the procedure for appointing the President and Vice-President of the Constitutional Tribunal by the President of the Republic of Poland are consistent with the Constitution. Within the meaning of Article 194(2) of the Constitution, the President is obliged to appoint the President and Vice-President of the Constitutional Tribunal “amongst candidates” proposed by the General Assembly of the Judges of the Constitutional Tribunal. The President of the Republic of Poland is not vested with full discretion as regards finding candidates for the positions of the President and Vice-President of the Constitutional Tribunal. The head of state is obliged to appoint to the said positions one of proposed candidates. The indicated provision is lucid and raises no interpretative doubts.
In the view of the Tribunal, the fact that the Constitutional Tribunal Act does not specify the length of the term of office for the positions of the President and Vice-President of the Constitutional Tribunal does not violate the Constitution. Indeed, the length of the said terms depends on the length of the term of office of a given judge of the Constitutional Tribunal. This solution is clear and raises no interpretative doubts. The legislator may introduce a solution where judges of the Constitutional Tribunal will take turns in performing the duties of the President and Vice-President of the Tribunal. However, should the legislator decide to introduce such a solution, he must adhere to the rules for introducing changes into the system of law, which arise from the principles of a democratic state ruled by law.
The Tribunal also declared it to be constitutional that retired judges of the Tribunal enjoy formal immunity, which makes holding the judges criminally liable (except in the case of misdemeanours) or depriving them of liberty contingent on consent granted by the General Assembly of the Constitutional Tribunal. The said immunity is enjoyed by retired judges of all courts in Poland. The said protection is of special significance for the judges of the Tribunal, who are appointed for a relatively short term of office. At the same time, they determine the constitutionality of law enacted by politicians or resolve disputes over powers between central constitutional state authorities, and hence they are at risk of potential repercussions from politicians who are discontented with the Tribunal’s rulings.
The legal solution which permits the Tribunal to discontinue proceedings is also constitutional, if a given case does not concern a significant legal issue that needs to be determined by the Tribunal. The objective underlying the said solution is to relieve the Tribunal from the burden of examining cases which are insignificant from the point of view of the legal system. What weighs in favour of that solution is the constitutional principle of the efficiency of public institutions. Indeed, the Tribunal is the only organ of the state (what is more, composed of very few persons) that is authorised to examine the constitutionality of law, resolve disputes over powers, adjudicate on the conformity to the Constitution of the purposes or activities of political parties, and determine the existence of an impediment that temporarily prevents the President of the Republic of Poland from performing his/her duties. Thus, the Tribunal has vital duties pertaining to safeguarding the supremacy of the Constitution, protecting human rights and freedoms as well as preserving the rule of law and the tri-division of powers. The Tribunal emphasised that similar solutions existed in other EU Member States, and also in proceedings before the European Court of Human Rights.
However, the Tribunal did not agree with the allegations raised by the applicants as to Article 3 of the Constitutional Tribunal Act. The said provision does not grant any new powers to the Tribunal. It merely groups and orders the constitutional powers of the Constitutional Tribunal. The repetition of the provisions of the Constitution in a statute may not be regarded as unconstitutional.
The hearing was presided by Judge Sławomira Wronkowska-Jaśkiewicz, and the Judges Rapporteurs were Judge Leon Kieres and Judge Marek Zubik.