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