Polish Constitutional Court

Crisis around the Constitutional Tribunal  

1. The procedure for electing judges of the Constitutional Tribunal was regulated in detail by the Sejm Regulation, and only to a small extent by the Act on the Constitutional Tribunal of 1997. In the provisions of the Constitutional Tribunal Act of June 25, 2015, the legislator decided to extend the scope of statutory regulation, but did so selective and limited itself to regulating certain aspects of the process of selecting judges of the Constitutional Tribunal, i.e. the deadline for submitting an application to nominate a candidate for a judge of the Tribunal and entities authorized to propose candidates. At the same time, an unprecedented legal solution was introduced into the legal order (Article 137 of the Act), authorizing the election of judges whose terms of office were to begin after the constitution of the new Sejm after the parliamentary elections on October 25, 2015.
2. The Constitutional Tribunal Act of June 25, 2015 entered into force on August 30, 2015. At its last session on October 8, 2015, the Sejm of the 7th term of office selected candidates for the positions of CT judges. The election covered the judges whose term of office ended in November (3 judges ended their term on November 6, 2015) and in December 2015 (December 2, 2015, and December 8, 2015).

• Members of the Sejm of the 7th term of office (mainly representatives of the ruling parties of the PO-PSL) justified the change in the provisions of the Constitutional Tribunal Act with the necessity to prevent a situation in which the Sejm of the 8th term might not be able to elect new judges and the terms of office would lose their continuity. However, this argument is not correct, because if the legislator wanted to protect the Constitutional Tribunal from vacancies by excluding the implications related to parliamentary elections, then it would introduce a specific regulation. Periodic vacancies in individual judicial positions have already taken place in practice. They do not affect the operational capacity of the entire Tribunal.

1. The selection of candidates for CT judges made by the Sejm of the 7th term of office was burdened with a procedural error, as the Sejm, when passing the Constitutional Tribunal Act of June 25, 2015, did not make appropriate changes to the Sejm Regulation. As a consequence, the issue of electing judges of the Constitutional Tribunal was regulated differently in two different, binding, non-harmonized legal regulations.
2. President Andrzej Duda did not take the oath from any of the persons elected by the Sejm of the 7th term. The selection process for the position of a CT judge is completed only at the time of taking the oath. In the absence of any system for verifying the correctness of the election made by the Sejm, such abstention of the President from taking the oath is the only acceptable method of resolving doubts concerning various aspects of the election.
3. On November 25, 2015, the Sejm adopted five resolutions “on the declaration of lack of legal force” resolutions on the election of five judges of the Constitutional Tribunal by the Sejm of the previous term. On December 2, 2015, the Sejm of the 8th term adopted resolutions on the election of Henryk Cioch, Lech Morawski , Mariusz Muszyński, Piotr Pszczółkowski and Julia Przyłębska as judges of the Constitutional Tribunal. The adoption of these resolutions was necessary to ensure proper legitimacy of the members of the Constitutional Tribunal. The procedure for the continuation by the Sejm of the 8th term of the Constitutional Tribunal judges initiated by the Sejm of the 7th term was impossible – according to the principle of discontinuation of parliamentary work, proceedings initiated and not completed during the Sejm’s term of office, are closed at the end of its term. The Constitutional Tribunal attaches great importance to the principle of discontinuation, stating that this principle “affects the proceedings pending at the initiative of the Sejm or the Senate before the Constitutional Tribunal”.
4. On December 3, 2015, the Constitutional Tribunal issued a judgment in case K 34/15 concerning the Constitutional Tribunal Act of June 25, 2015. The Tribunal found, inter alia, that the provision allowing the appointment of judges was consistent with the Constitution to the extent that it applied to judges whose term of office began in November 2015 and was inconsistent with the Constitution to the extent that it applied to judges whose term of office began in December 2015. However, with regard to this judgment, it should be emphasize that “every judgment, including the judgment issued by the judges of the Constitutional Tribunal, is subject to the assessment of statutory and constitutional criteria”. It was impossible for the President of the Republic of Poland to take the oath of three judges whose election was in accordance with the Constitution according to the Constitutional Tribunal, as all the judges’ seats in the Constitutional Tribunal had already been filled. The current legitimacy of the Sejm electing judges of the Constitutional Tribunal and not going beyond the time scope of its own competences by the Sejm is extremely important. The Sejm has the power to elect a judge of the Constitutional Tribunal, but only if during his term of office a judge’s seat in the Constitutional Tribunal is vacant.
5. On November 30, 2016, the Sejm adopted the following acts: on the organization and procedure of proceedings before the Constitutional Tribunal and on the status of judges of the Constitutional Tribunal, which implemented the recommendation of the Team of Experts on the Issues of the Constitutional Tribunal. Pursuant to the Acts, judges of the Tribunal who had taken an oath before the President were included in adjudication, and at the same time the act invalidated the selection of candidates for the President of the Tribunal made before its entry into force. The acts “fixed” procedural errors made by the Sejm of the 7th term. By the judgment of October 24, 2017, the Constitutional Tribunal ruled that the Acts were compliant with the Polish Constitution (K 1/17).