What follows is the English translation of an open letter penned by retired judges of Poland’s Constitutional Tribunal.

We, the undersigned retired judges of the Constitutional Tribunal, regret to state that the actions of the legislature and the executive since 2015, and the Constitutional Tribunal leadership since 2017, have led to a dramatic decline in the significance and the prestige of this constitutional body, as well as to the inability to perform its constitutional tasks and duties. Unfortunately, the widespread belief that the Constitutional Tribunal has virtually been abolished is correct.

The alleged, spurious dispute over authority which is now pending, between the Supreme Court on one side, and the Sejm and the President of the Republic on the other, is a recent striking example which must be added to the long list of breaches of law on the organisation and the mode of proceedings before the Constitutional Tribunal. The full bench, which is to rule in this case, contains two newly elected judges who were actively involved in the legislative process of the Law amending the Act on the National Council of the Judiciary and certain other acts. The provisions of this law form a main part of the reasoning of the request to settle the dispute.

More precisely:

 
– Stanisław Piotrowicz chaired the sittings of the Justice and Human Rights Committee of the Sejm on 28 November and 6 December 2017, and also spoke on the proposal several times. During the second reading of the bill, at a plenary session, he gave a long speech in favour of the draft law.

– Krystyna Pawłowicz, the judge-rapporteur, spoke about the proposal several times during the sitting of the Justice and Human Rights Committee on 28 November 2017.

On 8 December 2017, during the third reading of the bill, both Krystyna Pawłowicz and Stanisław Piotrowicz voted in favour of the draft law as a whole, including the adopted amendments, according to the wording included in Sejm paper no. 2070, i.e. the law which they are to examine as Constitutional Court judges.

It must be recalled that pursuant to Article 38(2) and (3) of the Act of 30 November 2016 on the organisation and the mode of proceedings before the Constitutional Tribunal: “a judge of the Tribunal shall also be excluded from the Tribunal’s consideration of a case if he or she […] participated in the issuing of a normative act, a judgment, an administrative decision, or another determination, which are referred to in para 1(1) and (2), and this may raise doubts as to the judge’s impartiality”, and “in the situations referred to in para 2, a judge of the Tribunal shall be excluded from the Tribunal’s consideration of a case if it is deemed probable that there are circumstances which may raise doubts as to the impartiality of the judge”.

The participation of the two mentioned judges in the panel of the Constitutional Tribunal, one in particular as a judge-rapporteur, is a flagrant breach of the cited provisions, including in the light of the Tribunal’s case-law (see in particular order of 17 July 2003, case K 13/02).

Stanisław Biernat (2008–2017, Vice-President 2010–2017)
Teresa Dębowska-Romanowska (1997–2006)
Lech Garlicki (1993–2001)
Mirosław Granat (2007–2016)
Wojciech Hermeliński (2006–2015)
Adam Jamróz (2003–2012)
Biruta Lewaszkiewicz-Petrykowska (1997–2006)
Wojciech Łączkowski (1989–1997)
Ewa Łętowska (2002–2011)
Marek Mazurkiewicz (2001–2010, Vice-President 2010)
Andrzej Mączyński (1997–2006, Vice-President 2001–2006)
Małgorzata Pyziak-Szafnicka (2011–2020)
Ferdynand Rymarz (1993–2001)
Andrzej Rzepliński (2007–2016, President 2010–2016)
Marek Safjan (1997–2006, President 1998–2006)
Jerzy Stępień (1999–2008, President 2006–2008)
Piotr Tuleja (2010–2019)
Sławomira Wronkowska-Jaśkiewicz (2010–2019)
Mirosław Wyrzykowski (2001–2010)
Bohdan Zdziennicki (2001–2010, President 2008–2010)
Andrzej Zoll (1989–1997, President 1993–1997)
Marek Zubik (2010–2019)

10 February 2020