Constitutional Tribunal Act
The Act has been passed by the Polish Parliament on July 22 despite the controversies. NGOs, bar associations and the Supreme Court had pointed out the provisions of the draft bill that are inconsistent with the Polish Constitution. Most of the legal remarks related to the draft bill (below) are relevant to the Act adopted by the Parliament.
AppealAppeal of the Legal Experts Group at the Stefan Batory Foundation to the President of Poland regarding the new Constitutional Tribunal ActThe act violates the Polish Constitution and goes against the fundamental principles of division and balance of the legislative, executive and judiciary powers. It also stands in glaring contradiction to the recommendations made by the Venice Commission in March 2016. The new legislation not only fails to end the constitutional crisis but makes it even deeper.
The Stefan Batory Foundation's Expert Panel appeals to the President of the Republic of Poland to refuse to sign the bill and to refer it to the Constitutional Tribunal under the preventive control. Full text below.
StatementPosition statement of the Helsinki Committee and Helsinki Foundation for Human RightsThe new Constitutional Tribunal Act will paralyse the works of the Constitutional Tribunal. It paves the way towards a constitutionally unrestricted dictatorship of the parliamentary majority. Full text below.
OpinionEuropean Commission recommendation regarding rule of law in PolandIn particular the Commission recommends that the Polish authorities ensure that the Constitutional Tribunal can review the compatibility of the new law adopted on 22 July 2016 on the Constitutional Tribunal before its entry into force and publish and implement fully the judgment of the Tribunal in that respect. Full text of the opinion below.
ProposalA letter of the Stefan Batory Foundation to the President of the Constitutional TribunalIn the opinion of the Legal Experts Group at the Stefan Batory Foundation the new the Law on Constitutional Tribunal signed by the President of Poland is unquestionably unconstitutional. The Stefan Batory Foundation proposed that the Constitutional Tribunal should consider ruling on the Law in a secret session without a hearing (pursuant to Article 93 of the CT Law of 2015).
ContentionComment of the Helsinki Foundation for Human Rights on the Tribunal's Judgment reg. new Constitutional ActThe following provisions were declared contrary to the Constitution:
- the provisions that allow for a selective publication of the Tribunal’s decisions, which sanction, among other things, the non-publication of the judgment of 9 March 2016,
- the provisions introducing the procedural rule that requires the Tribunal’s President to apply to the Prime Minister to have a judgment published,
- the provisions pursuant to which deliberations may be adjourned for three months if four judges object proposed adjudication of a case pending before the Constitutional Tribunal.
Full text of the comment below.
ContentionA letter of the Helsinki Foundation for Human Rights to the UN Special Rapporteur on the Independence of Judges and Lawyers Monica PintoAccording to the Helsinki Foundation for Human Rights, the constitutional crisis that has lasted for over a year poses a serious threat to the independence of the entire justice system.
The HFHR asks the Special Rapporteur to look into the situation in Poland and, if possible, develop recommendations on the recent legislative changes and incidents damaging judges’ independence.
OpinionReport of the Helsinki Foundation for Human Rights: The Constitutional Crisis in Poland 2015-2016Since 2015, Poland has been going through a constitutional crisis related to the functioning of the Constitutional Tribunal. The crisis poses a serious threat to the rule of law, democracy and human rights protection.
The Foundation hopes that the publication of this report will help in determining the full scale of the problem and related risks.
Full text below.
Draft Constitutional Tribunal Act (Sejm Paper No 558)
The proposal is not limited to amendments, but constitutes an entirely new piece of legislation.
According to the draft Act, the President of the Constitutional Tribunal will not order publication, but only file a motion to the Prime Minister to publish a judgment.
The draft raises the number of judges composing a full bench of judges up to 13 (before December 2015 it was 9 judges). If the case is recognised by a full bench, the decision should be made by the 2/3 majority of votes. The President of the Republic of Poland and Prosecutor General would have a right to file a motion to the Constitutional Tribunal to consider a case by a full bench. The wording of this provision suggests that the Constitutional Tribunal will be bound by such a motion.
The draft has been significantly modified on July 24 – Members of Parliament added to the draft a veto power that allows four judges to postpone hearing a case. It may be a possibility of not hearing those cases inconvenient to the court and the leaders of the ruling party. This creates a direct threat to the competences of the Commissioner for Human Rights, as his motions could be permanently blocked.
OpinionOpinion of the Helsinki Foundation for Human RightsIt seems that the Constitutional Tribunal would be able to rule on the constitutionality of this draft in accordance with its provisions. This could limit the dispute on whether the Tribunal’s judgement is issued in accordance with the law (this issue is the main reason for the government’s refusal to publish the judgement of 9 March 2016).
Secondly, if the Constitutional Tribunal finds some of these regulations unconstitutional then there will be no regulation which would automatically replace the provisions that were found unconstitutional, as this is an entirely new act. Given the tense atmosphere surrounding the Constitutional Tribunal such a situation may lead to further paralysis of the Tribunal.
StatementStatement of the Board and the Council of the Helsinki Foundation for Human Rights and the Helsinki Committee in PolandThe bill effectively paralyzes that body and transforms it so that its functioning becomes dependent on interim, controlling decisions of the president, the prosecutor general and the prime minister. Undermining the position and independence of judicial authority poses a direct threat to the protection of human rights and liberties.
Full text of the statement is below.
StatementStatement by the Legal Experts Group at the Stefan Batory Foundation on the draft Constitutional Tribunal LawThe legislative proposals will further aggravates the constitutional crisis by pushing for evidently unconstitutional arrangements. It is particularly disconcerting to see the same proposals on the table that both the country's Constitutional Court and the Venice Commission once found to be blatantly in violation of the principle of independence of constitutional court from other branches of government.
OpinionNotes of the Office of the Constitutional Tribunal on main legal problems arising from the new Bill on the Constitutional Tribunal