The Act amending the Constitutional Tribunal Act K 35/15
The Act amending the Constitutional Tribunal Act K 35/15
On 9 December 2015 at 9 a.m., the Constitutional Tribunal considered joined applications filed by a group of Sejm Deputies, the Polish Ombudsman, the National Council of the Judiciary of Poland and the First President of the Supreme Court with regard to the Act amending the Constitutional Tribunal Act.
The Constitutional Tribunal adjudicated that:
1) the Act of 19 November 2015 amending the Constitutional Tribunal Act of 25 June 2015 is consistent with Article 7, Article 112, Article 119(1) as well as Article 186(1) of the Constitution;
2) Article 12(1), second sentence, of the Constitutional Tribunal Act of 25 June 2015, as amended by Article 1(1) of the Act referred to in point 1, is inconsistent with Article 173 in conjunction with Article 10 of the Constitution;
3) Article 21(1) of the Act referred to in point 2, as amended by Article 1(4)(a) of the Act referred to in point 1, in the part which includes the wording “within 30 days from the date of election”, is inconsistent with Article 194(1) of the Constitution;
4) Article 21(1a) of the Act referred to in point 2, as amended by Article 1(4)(b) of the Act referred to in point 1, is inconsistent with Article 194(1) in conjunction with Article 10, Article 45(1), Article 173 as well as Article 180(1) and (2) of the Constitution;
5) Article 137a of the Act referred to in point 2, added by Article 1(6) of the Act referred to in point 1 – insofar as it concerns proposing a candidate for a judge of the Constitutional Tribunal to assume the office after the judge whose term of office ended on 6 November 2015 – is inconsistent with Article 194(1) in conjunction with Article 7 of the Constitution as well as is not inconsistent with Article 45(1), Article 180(1) and (2) of the Constitution in conjunction with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by its Protocols Nos. 3, 5 and 8 as well as supplemented by its Protocol No. 2, and also with Article 25(c) in conjunction with Article 2 and Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), opened for signature in New York on 19 December 1966.
6) Article 2 of the Act referred to in point 1 is inconsistent with Article 2, Article 7 as well as Article 45(1), Article 180(1) and (2), Article 194(1) in conjunction with Article 10 of the Constitution, as well as with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and also with Article 25(c) in conjunction with Articles 2 and 14(1) of the International Covenant on Civil and Political Rights.
As regards the remainder of the allegations, the Constitutional Tribunal decided to discontinue the review proceedings.
In the first place, the Constitutional Tribunal addressed the allegation that the entire Act of 19 November 2015 amending the Constitutional Tribunal Act of 25 June 2015 (hereinafter: the amending Act) was unconstitutional, due to the enactment of the amending Act in breach of the legislative procedure. Despite being aware of numerous defects in the legislative process caused by breaches of the Sejm’s rules of procedure and of the Act on the National Council of the Judiciary of Poland, the Tribunal did not declare the entire amending Act to be unconstitutional.
The Constitutional Tribunal, composed of five judges, repeated the view presented by the Tribunal in its judgment of 7 November 2013 (ref. no. K 31/12) that a breach of the Sejm’s rules of procedure alone does not result in an infringement of the Constitution.
However, the Tribunal agreed with the allegations raised by the First President of the Supreme Court with regard to Article 12(1), second sentence, of the Constitutional Tribunal Act of 25 June 2015 (hereinafter: the Constitutional Tribunal Act), pursuant to which: “The same person may be appointed the President of the Tribunal twice”. The Constitutional Tribunal held that a procedure for appointments to managerial positions in the Tribunal which provides for the reappointment of a given person opens up a possibility for the executive branch of government to resort to unauthorised interference in the functioning of the constitutional court. Permitted by the legislator, the scope of interference of the executive branch may raise doubts as to the independence of judges of the Tribunal, undermines the principle of the independence of the Constitutional Tribunal, and affects the public perception of the constitutional judiciary. Taking the above into consideration, the Tribunal ruled that Article 12(1), second sentence, of the Constitutional Tribunal Act is inconsistent with Article 173 in conjunction with Article 10 of the Constitution.
The Tribunal also agreed with the applicants’ allegation about the unconstitutionality of Article 21(1) and (1a) of the Constitutional Tribunal Act. Pursuant to the new wording of Article 21(1), a person elected to assume the office of a judge of the Constitutional Tribunal shall take the oath of office before the President of the Republic of Poland within 30 days from the date when the said person has been elected. In the view of the Tribunal, the introduction of the 30-day time-limit for taking the oath of office violates the principle that a judge of the Constitutional Tribunal elected by the Sejm should have the possibility of taking the oath of office forthwith after having been elected by the Sejm. Such a possibility should be created by the President of Poland. By assigning the President of Poland with competence to participate in the procedure for appointing judges to the Constitutional Tribunal, the challenged provision infringes Article 194(1) of the Constitution, in accordance with which judges of the Constitutional Tribunal shall be elected by the Sejm.
Also, para 1a added to Article 21 of the Constitutional Tribunal Act is unconstitutional; the said provision stipulates that “the taking of the oath of office shall commence the term of office in the case of a judge of the Tribunal”. As pointed out by the Tribunal, in accordance with the well-established practice, all state authorities in Poland have so far assumed that the nine-year term of office commences on the day when a judge of the Constitutional Tribunal has been elected by the Sejm (possibly a later date if the election process takes place before the vacancy occurs). But not on the day when the judge has taken the oath of office. The solution where the commencement of the term of office, as regards a judge of the Constitutional Tribunal elected by the legislative branch (the Sejm), would be contingent on the taking of the oath of office by the judge entails that the said term of office would commence after a certain delay, as well as that the President of the Republic of Poland would indirectly be involved in the procedure for choosing judges of the Constitutional Tribunal, even though the Constitution provides only for the Sejm’s participation in that procedure. Therefore, the Tribunal ruled that Article 21(1a) of the Constitutional Tribunal Act is inconsistent with Article 194(1) in conjunction with Article 10, Article 45(1), Article 173 as well as Article 180(1) and (2) of the Constitution.
The Tribunal deemed that Article 137a of the Constitutional Tribunal Act – insofar as it concerns proposing a candidate for a judge of the Constitutional Tribunal to assume the office after the judge whose term of office ended on 6 November 2015 – is inconsistent with Article 194(1) in conjunction with Article 7 of the Constitution. Article 137a of the Constitutional Tribunal Act stipulates that: “With regard to judges whose term of office ends in 2015, the time-limit for submitting a proposal referred to in Article 19(2) [what is meant here is a motion to put forward a candidate for a judge of the Constitutional Tribunal] shall be 7 days as of the entry into force of this provision”. The Tribunal did not assess whether the said procedure for electing judges of the Tribunal was proper. However, it deemed that the previous application of Article 137 of the 2015 Constitutional Tribunal Act, within the scope considered in the Tribunal’s judgment of 3 December 2015 (ref. no. K 34/15, <link en news press-releases after-the-hearing art>trybunal.gov.pl/en/news/press-releases/after-the-hearing/art/8749-ustawa-o-trybunale-konstytucyjnym/), was consistent with the Constitution, as well as that the application of Article 137a would result in a larger number of judicial appointments than provided for in Article 194(1) of the Constitution.
The Tribunal also ruled that Article 2 of the amending Act is unconstitutional; the challenged provision stipulates that the “terms of office” of the incumbent President and Vice-President of the Constitutional Tribunal shall expire after the lapse of three months from the date of entry into force of the amending Act. The Constitutional Tribunal held that the challenged provision constitutes unauthorised interference in the realm of the judiciary by the legislator and undermines the principle that the Constitutional Tribunal is independent of the other branches of government (Article 173 of the Constitution). Solutions pertaining to the status of the President and Vice-President of the Constitutional Tribunal, in particular as regards their terms of office, are closely linked with the principle of the independence of the Tribunal as such. The legislator may depart from the hitherto adopted solution, and may determine the length of the term of office in the case of the President or Vice-President of the Constitutional Tribunal in a more fixed way. However, Article 2 of the amending Act constitutes interference on the part of the legislator in the scope of the constitutional competence to appoint the President and Vice-President of the Constitutional Tribunal, which is vested in the President of the Republic of Poland.
The Tribunal agreed with the view presented by the applicants that the legislator’s termination of the terms of office of the incumbent President and Vice-President of the Constitutional Tribunal violates the principle of the independence of those authorities, and thus infringes Article 10 in conjunction with Article 173 of the Constitution, Article 194(1) and (2) as well as Article 7 of the Constitution.
The hearing was presided over by Judge Andrzej Wróbel, and the Judge Rapporteur was Judge Piotr Tuleja.