NIEDZIELA, ZIELIŃSKI & WSPÓLNICY: Doubts regarding the composition of the Polish Constitutional Tribunal and the right to court05/27/2021

Doubts regarding the composition of the Polish Constitutional Tribunal and the right to court.

Possible consequences.

On 7th May 2021 the European Court of Human Rights in Strasbourg (ECHR) issued a judgment in the case of the Polish company Xero Flor sp. z o.o. v Poland (4907/18). This is the first judgment of the international body regarding the political changes in the Polish Constitutional Court that have occurred since 2015 and is related to the "constitutional crisis" that has been ongoing in Poland since then.

The Constitutional Tribunal is the constitutional court of the Republic of Poland – a judicial body established to resolve disputes on the constitutionality of the activities of state institutions; its main task is to supervise the compliance of statutory law with the Constitution of the Republic of Poland, at the request of legal institutions entitled to do so, as well as at the request of citizens who have lost their cases before the courts and believe that the reason is a defectively formulated law. The Constitution mandates that its 15 members are elected by the Parliament for 9 years and must take an oath of office before the President.

As a result of political disputes in 2015, at the junction of the term of two governments (the PO-PSL coalition and the PiS government), the outgoing Parliament chose 5 judges of the Constitutional Tribunal - including two to serve as judges whose term would end in the new term of Parliament. As a result, the Parliament of the new term dominated by PIS, despite the earlier appointment of the maximum number of new judges by the previous Parliament, elected another 5 candidates as judges of the Constitutional Tribunal.

After many doubts, the “old” President of the Constitutional Tribunal allowed two judges elected by the new Parliament dominated by PiS to adjudicate, and the remaining three judges began to be referred to as "double judges" and as such they were not admitted to work. After the term of the “old” President of the Tribunal expired and the appointment of a new President from the political nomination of PIS, all judges elected by the Parliament during the PiS term were admitted to adjudication. However, none of the five judges elected by the PO-PSL coalition were admitted, and the President of Republic did not take an oath from them.

The current composition of the Constitutional Tribunal has aroused great opposition from the public opinion since the beginning of the described conflict, including a significant number of lawyers - both practitioners (including barristers, legal advisers, judges) and those from the academic community.

It can be noticed that as a result of the turmoil surrounding the Constitutional Tribunal, common court judges have less confidence in the judgments issued by the Constitutional Tribunal. Already in 2016, the number of inquiries submitted by common courts to the Constitutional Tribunal fell to 21 (from 135 in 2015). There are also cases of the application of the constitution directly by judges of common courts, de facto replacing the Constitutional Tribunal in this matter.

There are no provisions in Polish law that would allow to resolve the doubts and ambiguities that have arisen around the "double judges".

Currently, challenging of Constitutional Tribunal judgments can take place in front of  international bodies, but it only concerns individual control, i.e. citizens' cases. There is no possibility of conducting an abstract review - the judgments of the Constitutional Tribunal concerning the non-compliance of acts with the Constitution.

The individual control took place in the aforementioned judgment of the European Court of Human Rights in Strasbourg of May 7, 2021 in the case of Xero Flor sp.z o.o. v. Poland (4907/18). The company filed a constitutional complaint concerning the unfavourable provisions of the Hunting Law, while the Constitutional Tribunal composed of one of the "double judges", professor Mariusz Muszyński, issued the sentence in which decided to discontinue the proceeding.

The ECHR ruled that the presence of one of the "double judges" in the adjudication panel of the Constitutional Tribunal renders the panel unlawful, and that the Tribunal in such a panel is not a court established by law. The justification argued that "Poland violated Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial before a court established in accordance with the law," and that "actions by the Polish authorities consisting in wrongful appointing one of the judges and ignoring the judgments of the Constitutional Tribunal in in this regard, they meant that the court in this case was not a court established by law.

At this point, the judgment of the ECHR will most likely not affect the situation in the Constitutional Tribunal itself. The current President of the Constitutional Tribunal, Judge Julia Przyłębska, immediately after its announcement, indicated that the judgment had no legal basis and had no effect in the Polish legal system. It is not known yet whether and how Poland will implement the judgment.

It cannot be denied that the judgments issued by the Constitutional Tribunal composed of "double judges" were not annulled, and the ECHR did not resolve this issue in any way (it did not indicate any guidelines in terms of general action). The validity of judgments of Polish courts is regulated only by Polish law, and it does not provide for any method of annulment of judgments issued by the Constitutional Tribunal.

However, the judgments of the Constitutional Tribunal issued in a bench with "double judges" certainly have dubious legal significance. It can be expected that the judgment of the ECHR in the case of Xero Flor sp.z o.o. against Poland, as a precedent, will spark a wave of similar complaints. It cannot be ruled out that in the event of a large number of similar complaints, the ECHR would decide to issue a pilot judgment in which it would explicitly oblige the Polish authorities to take specific actions to eliminate the causes of the violation.

Perhaps the ruling in the case of Xero Flor sp.z o.o. against Poland will also be noticed by EU bodies, especially taking into account the fact that the judgments of the Constitutional Tribunal may affect the rights and freedoms guaranteed by EU law.

As we indicated earlier, there are no regulations in Polish law that would allow the crisis related to "double judges" to be resolved. If the ruling party (PIS) changes as a result of the next elections, it can be assumed that there will be attempts to form the Constitutional Tribunal in a lawful manner.

Perhaps then a new regulations will be created to invalidate the dubious judgments. Thus, in Poland we are currently dealing with a situation of uncertainty - citizens do not know whether the decisions of the current Constitutional Tribunal are correct and whether they will be valid in the future, or whether they will be overruled. Consequently, the principles of legal certainty and trust in the legal situation shaped by the judgments of the Constitutional Tribunal are not fulfilled at the moment.