Referendum; legal means in referendum campaigns;
the right to a fair trial K 10/15
‘The shortening and simplification of proceedings instituted on the basis of Article 44 of the Nationwide Referendum Act and Article 35 of the Local Referendum Act are justified by the function they fulfil in the course of a referendum campaign. However, this may not lead to an infringement of the right to a properly-devised court procedure,’ stated the Constitutional Tribunal.
On 20 April 2017 at noon, the Constitutional Tribunal publicly delivered a ruling, issued at a sitting in camera, with regard to the Ombudsman’s application concerning legal means in referendum campaigns (the right to a fair trial).
The Constitutional Tribunal adjudicated that:
1) Article 44(3), second sentence, of the Nationwide Referendum Act of 14 March 2003, insofar as it rules out the admissibility of the reopening of proceedings, is inconsistent with Article 45(1) and Article 77(2) of the Constitution of the Republic of Poland;
2) Article 35(3), third sentence, of the Local Referendum Act of 15 September 2000, insofar as it rules out the admissibility of the reopening of proceedings, is inconsistent with Article 45(1) and Article 77(2) of the Constitution of the Republic of Poland.
The ruling was unanimous.
There was one dissenting opinion, and it was filed with regard to the composition of the adjudicating bench by Judge Sławomira Wronkowska-Jaśkiewicz.
The constitutional issue presented in the Ombudsman’s application amounts to answering the question whether the lack of the possibility of filing a complaint to reopen proceedings so as to appeal against a legally effective decision of a court of appeal which was issued in special proceedings during a referendum campaign, as regulated in Article 44 of the Nationwide Referendum Act and Article 35 of the Local Referendum Act, constituted an unjustified restriction of the right to a fair trial, due to an infringement of the principle of procedural justice.
According to the Tribunal, the shortening and simplification of proceedings instituted on the basis of Article 44 of the Nationwide Referendum Act and Article 35 of the Local Referendum Act are justified by the function they fulfil in the course of a referendum campaign. However, this may not lead to an infringement of the right to a properly-devised court procedure.
What constitutes an element of the right to a fair trial and of the principle of procedural justice, arising from the said right, is such a way of devising a court procedure by the legislator that the procedure would lead to issuing a binding determination in compliance with the law and that there would be no necessity for revoking a legally effective ruling.
Due to the diversity of court proceedings and the categories of cases that are determined in their course, there exists a possibility of a conflict between the right to a fair trial and other constitutional values. When weighing up the right to a fair trial appropriately with other constitutional values, the legislator may assign precedence to those other values. A restriction of the right to a fair trial, even if introduced only to simplify or expedite the procedure, may in the course of proceedings lead to minimising the likelihood of obtaining a determination which would be consistent with the objective truth.
The Tribunal held that the existence of a considerable risk of issuing a court ruling that is inconsistent with the law or the objective truth requires such shaping of the procedure by the legislator that, in the case of significant (special) defects, there would be a possibility of revoking a legally effective ruling and issuing a determination that meets the requirements of the rule of law.
In the Tribunal’s view, the mode of proceedings conducted in the course of a referendum campaign, due to the simplification of the proceedings as well as dates for considering applications and complaints (24 hours), poses a serious risk of issuing a court ruling that will be inconsistent with the law or the objective truth.
In the context of proceedings regulated in Article 44 of the Nationwide Referendum Act and Article 35 of the Local Referendum Act – which provide for a special mode of protection against disseminating false information in the course of a referendum campaign – the constitutional right to a fair trial implies the legislator’s guarantee of the possibility of revoking rulings in the event of serious (aggravated) defects, especially because of that special mode of protection. The elimination of the possibility of revoking a ruling issued in the said proceedings infringes the constitutional right to have cases considered in fair proceedings.
Therefore, the Tribunal adjudicated that Article 44(3), second sentence, of the Nationwide Referendum Act and Article 35(3), third sentence, of the Local Referendum Act, insofar as they rule out the admissibility of the reopening of proceedings, are inconsistent with Article 45(1) and Article 77(2) of the Constitution.
The hearing was presided over by Judge Sławomira Wronkowska-Jaśkiewicz, and the Judge Rapporteur was Judge Zbigniew Jędrzejewski.