The Civil Procedure Code – evaluating the correctness of the election process with regard to a judge of the Tribunal, the President of the Tribunal and the Vice-President of the Tribunal K 10/17
1. On 11 September 2017, the Constitutional Tribunal delivered its judgment concerning Article 1, Article 68(1) in conjunction with Article 67 as well as Article 325 of the Civil Procedure Code.
The Tribunal adjudicated that the above-mentioned provisions – insofar as they enable common courts and the Supreme Court to evaluate the correctness of the procedure for electing a judge of the Constitutional Tribunal or appointing the President of the Tribunal and the Vice-President of the Tribunal – are inconsistent with the Constitution as they interfere with the exercise of the constitutional powers by the Sejm (the election of the judges of the Tribunal), the President of Poland (the appointment of the President of the Tribunal and the Vice-President of the Tribunal) as well as the General Assembly of the Judges of the Constitutional Tribunal (presenting candidates for the positions of the President of the Tribunal and the Vice-President of the Tribunal).
2. The Tribunal carried out its evaluation primarily in the light of the constitutional principle of the separation of and balance between powers.
3. The Constitutional Tribunal pointed out that the election of a particular person by the Sejm to hold a judgeship at the Tribunal allows the person elected as a judge of the Tribunal to obtain a mandate which the person will exercise after taking the relevant oath of office before the President of Poland. A legal relationship between a judge of the Tribunal and the state, arising from the obtained mandate, is systemic in character: the commencement and termination of that relationship exclusively falls within the scope of competence vested in state authorities indicated in relevant provisions of law. The legal relationship falls outside the sphere of administration or employment. It does not create a civil-law relationship and may, in no way, be correlated with civil proceedings.
The Tribunal held that in the context of cases that are systemic in character and are regulated in the Constitution, the jurisdiction of courts is admissible only in instances that are clearly indicated in the Constitution. It is the constitution-maker that decides whether an action of an authority belonging to a given branch of government may be verified by an authority belonging to another branch of government. The adoption of the opposite assumption would lead to a breach of the principle of the separation of and balance between powers. Therefore, the procedure for electing a judge of the Tribunal as well as the act of election in the form of a resolution of the Sejm may not be verified in any scope in the civil procedure in proceedings before common courts and the Supreme Court. The formulation of the norm arising from Article 1 of the Civil Procedure Code in the way that it is possible for a court to have competence within the said ambit infringes the constitutional provision on the Tribunal’s composition in conjunction with the principle of the separation of and balance between powers.
If the scope of the jurisdiction of courts in systemic matters arising from the Constitution may be deemed on the basis of an explicit provision of the Constitution, it should be stated that such a provision is not Article 45(1) of the Constitution (the right to a fair trial) or, related thereto, Article 77(2) of the Constitution (recourse to courts due to infringed constitutional rights and values) or Article 177 of the Constitution (the presumption of the administration of justice by common courts).
The Constitution does not contain provisions that would authorise courts to evaluate the correctness of the election process with regard to judges of the Constitutional Tribunal. The right to a fair trial constitutes a means of protecting constitutional rights and freedoms. Thus, it is meant for persons who may, in the light of the Constitution, rely on the protection provided for in Chapter II of the Constitution. The said protection covers constitutional rights and freedoms, i.e. matters that are clearly linked with the status of the individual within the state. The right to a fair trial is applicable where there is “a case”, i.e. where the protection of certain interests of the individual is at all possible in court proceedings before common courts, administrative courts or military courts. What does not fall under the notion of “a case” within the meaning of Article 45(1) of the Constitution is systemic matters. Hence, one may not make reference to the right to a fair trial to justify the scope of the jurisdiction of common courts with regard to systemic matters. Therefore, also Article 177 of the Constitution is not applicable here either. Otherwise, there would occur interference with the Sejm’s exclusive competence to determine the composition of an organ of the state, i.e. the Constitutional Tribunal, a violation of the Tribunal’s independence, and thus also an infringement of the principle of the separation of powers.
4. The Tribunal pointed out that the power of the President of Poland to appoint the President and Vice-President of the Tribunal, which arises from Article 194(2) in conjunction with Article 144(3)(21) of the Constitution, constitutes a prerogative of the President of Poland which is not subject to any review by other authorities. This was a conscious choice made by the constitution-maker so as to ensure that the President of Poland would be able to perform his/her tasks indicated, above all, in Article 126 of the Constitution.
5. The Tribunal held that no stage of the procedure for appointing the President of the Tribunal or the Vice-President of the Tribunal by the President of Poland, from among candidates proposed by the General Assembly of the Judges of the Constitutional Tribunal, may be subject to review in civil proceedings, i.e. neither the procedure for selecting and proposing the candidates by the General Assembly, nor the very act of appointing the candidates to the said positions by the President of Poland.
The said procedure is systemic in character. Since none of the provisions of the Constitution assigns such competence to courts, creating a statutory power to verify the procedure infringes the constitutional principle of the separation of powers. Also, in this context, reference may not be made to the provisions on the right to a fair trial and the presumption of recourse to a common court.
Deeming that the procedure for appointing the President and Vice-President of the Tribunal falls within the scope of Article 1 of the Civil Procedure Code, and thus including those matters into the jurisdiction of common courts and the Supreme Court, would also result in an infringement of the constitutional provisions on the prerogative of the President of Poland to appoint the President and Vice-President of the Tribunal, as well as would interfere with the principle of the separation of powers. Moreover, such an assertion would also infringe the constitutional competence of the General Assembly of the Judges of the Constitutional Tribunal to propose candidates for the positions of the President and Vice-President of the Tribunal.
6. When analysing Article 68(1) in conjunction with Article 67 of the Civil Procedure Code – insofar as it permits the evaluation of the correctness of the procedure for appointing the President and Vice-President of the Tribunal – the Tribunal agreed with the thesis that a competent court must, ex officio, ensure that a party to civil proceedings is properly represented. However, the fulfilment of that obligation may not involve making autonomous determinations as to the validity of the act of appointing judges to the aforementioned positions.
The procedure for proposing candidates for the positions of the President and Vice-President of the Tribunal by the General Assembly of the Judges of the Tribunal as well as the procedure for appointing them by the President of Poland is reflected in the Official Gazette of the Republic of Poland (Monitor Polski). Article 68(1) in conjunction with Article 67 of the Civil Procedure Code – insofar as it permits the judicial review of the correctness of the procedure for proposing candidates for the positions of the President and Vice-President of the Tribunal, and for appointing those persons, by means of examining the powers of attorney issued by those persons in civil proceedings – infringes the prerogative of the President of Poland to appoint the President and Vice-President of the Tribunal as well as undermines a decision of the President of Poland (an act that is systemic in character), issued on the basis of the Constitution and published in the aforementioned Official Gazette. Thus, there occurs a violation of the principle of the separation of powers and an infringement of the constitutional power of the General Assembly of the Judges of the Tribunal, specified in Article 194(2) of the Constitution.
7. The Tribunal deemed that – since it is unconstitutional to include into the ambit of civil matters the issue of evaluating the correctness of the procedure for electing a judge of the Constitutional Tribunal and appointing the President and Vice-President of the Tribunal – Article 325 of the Civil Procedure Code in conjunction with Article 1 of the said Code, permitting the issuance of a ruling which comprises the determination of such matters, also infringes, respectively: Article 194(1) in conjunction with Article 10 of the Constitution as well as Article 194(2) in conjunction with Article 10 of the Constitution as well as Article 144(3)(21) in conjunction with Article 10 of the Constitution.
The ruling was adopted by a majority vote.
The Presiding Judge of the adjudicating bench was Judge Grzegorz Jędrejek, and the Judge Rapporteur was Judge Zbigniew Jędrzejewski.