The Acts on the Constitutional Tribunal K 1/17
The Tribunal adjudicated that the challenged provisions of the Act of 13 December 2016 – the Introductory Provisions to the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal and to the Act on the Status of the Judges of the Tribunal are consistent with the Constitution.
The Tribunal also stated that the challenged provision of the Act on the Status of the Judges of the Tribunal is consistent with the indicated higher-level norms for the review. As regards examining the conformity of the provision of the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal, the review proceedings were discontinued.
On 24 October 2017 at 2 p.m., the Constitutional Tribunal publicly delivered a judgment concerning the application of the Ombudsman with regard to the Acts on the Constitutional Tribunal.
The Constitutional Tribunal adjudicated that:
1. Article 13(1)(2), Article 13(2)(1), as well as Article 13(3) of the Act of 13 December 2016 – the Introductory Provisions to the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal and to the Act on the Status of the Judges of the Tribunal (Journal of Laws – Dz. U. item 2074) are consistent with Article 24 of the Constitution of the Republic of Poland.
2. Article 18(2) and Article 21(2) of the Act referred to in point 1 above – insofar as they concern the judges of the Constitutional Tribunal who were elected by the Sejm of the Republic of Poland and who took the oath of office before the President of Poland – are consistent with Article194(1), first sentence, of the Constitution.
3. Article 19 of the Act referred to in point 1 above is consistent with Article 10, Article 173, and Article 190(2) of the Constitution.
4. Article 26(2) of the Act of 30 November 2016 on the Status of the Judges of the Constitutional Tribunal (Journal of Laws – Dz. U. item 2073) is consistent with Article 173 in conjunction with Article 10(1) of the Constitution as well as Article 195(1) of the Constitution.
Moreover, as to the remainder, the Tribunal decided to discontinue the proceedings.
The ruling was adopted by a majority vote.
The Tribunal stated that, by providing for the dissolution of an internal organisational unit of the Tribunal, namely the Office of the Constitutional Tribunal, the legislator had met the requirements arising from the constitutional principle of the protection of work (Art. 24 of the Constitution). Changes to the structure of auxiliary organisational units of the Tribunal have been deferred in time. Moreover, within that scope, the legislator provided for a period of vacatio legis of more than one year. Thus, he allowed the employees of the Office of the Tribunal to adjust to the new legal situation. The relevant statute has granted financial compensation to the employees of the Tribunal whose employment relationship will expire (where they will not accept new working conditions or where they will not be presented with new working conditions by their employer). The solutions indicated in the said statute are more advantageous for the employees than those that the employer could apply merely on the basis of the Labour Code.
With reference to the provisions concerning the allocation of cases to the judges of the Constitutional Tribunal and the possibility of their participation in a sitting of the General Assembly of the Judges of the Tribunal, this constitutional court stated that the said regulations are general and abstract in character, as well as that they are applicable to all the judges of the Tribunal who took the oath of office before the President of Poland.
Therefore, they do not pertain to a one-time action. On no account do they refer to the inclusion of particular judges of the Constitutional Tribunal in the Tribunal’s adjudication of a given case. If the provisions had an individual and specific character, they would not be subject to the Tribunal’s jurisdiction, and the Ombudsman’s application would be otiose.
The Tribunal held that a judge of the Tribunal who has been elected by the Sejm and who has taken the oath of office before the President may perform judicial duties, which means that s/he may be assigned to cases for adjudication. Such a judge may participate in the sittings of the General Assembly of the Judges of the Constitutional Tribunal, as s/he is a member of the Assembly, which constitutes an internal authority of the Tribunal.
When evaluating the provision of the Act on the Status of the Judges of the Constitutional Tribunal, this constitutional court concluded that authorising the President of Poland to notify the President of the Tribunal about the commission of a disciplinary breach by a judge of the Tribunal arises from the systemic position of the said authority as the head of state, which is referred to Article 126 of the Constitution. When making the notification, the President of Poland does not interfere in the essence of the judiciary. In no way does the said power modify or eliminate the constitutional powers of the Constitutional Tribunal. Nor does it deprive the Tribunal of the right to determine a disciplinary case against a judge of the Tribunal. When notifying about the commission of a disciplinary breach, the President of Poland does not determine, in a legally effective way, the status of a judge of the Tribunal, as well as has no impact on such a determination. Disciplinary proceedings with regard to a judge of the Tribunal are – from the moment of the institution thereof until their completion – carried out only within the structure of the Constitutional Tribunal. No authority outside the judiciary has an impact on the course of the said proceedings.
With regard to the provision of the Act of 13 December 2016 – the Introductory Provisions which concerns arriving at particular determinations by the Tribunal, this constitutional court held that the said provision does not infringe the principle of the separation of and balance between powers. The said provision was to guarantee legal stability and security, which had been distorted due to the Tribunal’s issuance of rulings that violated legal provisions.
The Tribunal discontinued proceedings concerning the provision of the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal which referred to the possibility of the Tribunal’s adjudication on provisions that had ceased to have effect.
The Tribunal deemed that the applicant had challenged the lack of certain legislative solutions which the legislator had given up on purpose. The Tribunal is not competent to assess law-making proposals of parties that initiate review proceedings, and thus it concluded that it had no jurisdiction to examine the allegation raised by the Ombudsman.
There was one dissenting opinion, filed by Judge Leon Kieres.
By its decision of 24 October 2017 (ref. no. <link s k-117 _blank>K 1/17), the Constitutional Tribunal did not grant the request of the Ombudsman to exclude the following judges of the Tribunal from the Tribunal’s adjudication in the present case: Henryk Cioch and Mariusz Muszyński.
The Presiding Judge of the adjudicating bench was the Vice President of the Constitutional Tribunal, Judge Mariusz Muszyński, and the Judge Rapporteur was Judge Zbigniew Jędrzejewski.