The article was first published in Polish in Gazeta Wyborcza on December 6, 2022.

by Łukasz Woźnicki

The ruling, which was issued on 16 November by a three-member bench of the Supreme Administrative Court, was passed in a case regarding the inaction of the Chancellery of the Sejm. But the matter of the legality of the current Constitutional Tribunal also appeared in that case.

‘The presence of incorrectly appointed judges in the membership of the Constitutional Tribunal means that the whole of the Polish Constitutional Tribunal has been, so to speak, “infected” with illegality, and has therefore lost, in a material sense, its ability to adjudicate in accordance with the law,’ reads the justification to the Supreme Administrative Court’s judgment.

Too great a risk to wait for the Constitutional Tribunal

The Constitutional Tribunal – referred to as ‘Julia Przyłębska’s tribunal’ – is today controlled by the ruling party and so-called ‘stand-in judges’, namely people who are not judges, adjudicate in it. For this reason, the Polish courts – including the Supreme Court – have acknowledged that the judgments of the Constitutional Tribunal did not have any legal effects. In turn, the European Court of Human Rights ruled that the Constitutional Tribunal with a stand-in within its membership was not a legal court.

Now, the Supreme Administrative Court has spoken up in the case of the Constitutional Tribunal. The Chancellery of the Sejm gave it the opportunity. It applied for a stay on the proceedings in which the Supreme Administrative Court was handling in connection with its failure to provide the lists of support for candidates to the new National Council of the Judiciary. It invoked the fact that the regulations allowing for the release of these lists are also being examined in parallel by the Constitutional Tribunal.

In such a situation, the Supreme Administrative Court could have stayed the proceedings to wait to see what the Constitutional Tribunal would say. But the bench (adjudicating in the composition of Judges Olga Żurawska-Matusiak, Przemysław Szustakiewicz and Sławomir Pauter) did not do this. ‘This is because it should be pointed out that the Constitutional Tribunal contains people appointed as judges in breach of the provisions of the Constitution of the Republic of Poland,’ it stated.

These people are the three stand-ins: Mariusz Muszyński, Justyn Piskorski and Jarosław Wyrembak – elected to the Constitutional Tribunal by PiS MPs. They took the correctly filled places of three judges from whom President Andrzej Duda refused to take the oath. The decision of the head of state allowed PiS to introduce people who are not judges into the Constitutional Tribunal. Meanwhile, the stand-ins later helped Julia Przyłębska assume control of the Constitutional Tribunal.

‘They took up their positions in place of correctly appointed judges,’ emphasised the Supreme Administrative Court. In doing so, it noted that the illegality of the occupation of the places by the stand-ins arises from the judgment of the Constitutional Tribunal of 3 December 2015, as well as from last year’s judgment of the Court in Strasbourg. That is why the Supreme Administrative Court decided that it could not wait for the Constitutional Tribunal to rule on the release of the lists of support.

‘There is a high degree of probability that there will be at least one of the so-called stand-ins in the panel. In such a situation, it is too risky to make a stay on the proceedings and to rely on ‘blind luck’ that there might not be one of the ‘stand-ins’ in the panel,’ it stated.

Supreme Administrative Court: Exceptional sluggishness of the Constitutional Tribunal

On the side-line, the Supreme Administrative Court noted that it is obliged to settle cases as quickly as possible.

‘Meanwhile, it is a matter of common knowledge, which is also confirmed in the annual reports of the Constitutional Tribunal, that the Polish Constitutional Tribunal is currently examining cases extremely sluggishly, with some applications waiting for a ruling for more than five years,’ it added.

The case which was being settled by the Supreme Administrative Court had already been pending before the administrative courts for four years. The request for the provision of public information was made to the Chancellery of the Sejm by a person described by the initials K.G. in January 2018.

‘In the situation of a lack of efficiency of the Constitutional Tribunal, a stay on the proceedings will result in an even longer wait for the application to be settled,’ accepted the Supreme Administrative Court. ‘This can essentially lead to a situation in which even if the request is fulfilled – the information that is disclosed will become worthless,’ it added.

Lists of signatures of support

In a judgment of 16 November, the Supreme Administrative Court dismissed the cassation appeals of the Chancellery of the Sejm, as well as K.G. against the judgment of the Voivodship Administrative Court in Warsaw in 2019. This resulted in the Voivodship Administrative Court’s judgment becoming final. According to that judgment, the Chancellery of the Sejm must examine K.G.’s request to provide the lists of support for the new NCJ signed by judges within 14 days.

These lists have long been kept secret by the ruling party. This was almost certainly the objective of the application submitted to the Constitutional Tribunal by the PiS MPs. The MPs challenged the constitutionality of the provisions enabling the disclosure of the data of judges in 2019.

The Constitutional Tribunal has not addressed the matter to this day. This is almost certainly because the Chancellery of the Sejm decided to publish the lists in 2020. This happened after ‘Wyborcza’ revealed one of the lists. After the publication of the lists, it transpired that candidates for the NCJ which was politicised by PiS were supported, among others, by employees of the Ministry of Justice or court presidents nominated by the Minister of Justice Zbigniew Ziobro, while one member of the NCJ supported himself.