In the first days of January 2021, the Constitutional Tribunal published the statistics of its work for 2019.

‘Information on significant problems arising from the activity and jurisprudence of the Constitutional Tribunal’ gives a picture of the Constitutional Tribunal’s work in its third year under the presidency of judge Julia Przyłębska.

The results are not impressive: once again, few cases have been brought before the Tribunal, and fewer judgements were handed down than in the very weak year of 2018.

It is worth noting that judges on the Constitutional Tribunal earn five times the national average salary in the second quarter of the previous year. In 2019, that figure was 22,605 zloty (just under €5000) gross.

2019 confirmed the political involvement of the Constitutional Tribunal under Julia Przyłębska. In November two controversial PiS politicians became judges: Stanisław Piotrowicz and Krystyna Pawłowicz. Only one judge has remained in the Constitutional Tribunal from before the ‘good change’, Leon Kieres. The court was used to legitimise the judiciary ‘reforms’ forced through by the government and which have been criticised by Brussels.

President Andrzej Duda has not voiced any objections to the work of the Constitutional Tribunal, though. At the annual General Assembly of its judges on 3 December 2020, where the findings of the above-mentioned document were presented, he presented a letter to the judges in which he did no more than emphasise the importance of their role.

Interestingly, in the statistics for 2019, the authors did not continue the practice of comparing the results with previous years. We will not find any figures which show, for example, how the number of incoming cases or judgements issued has changed. Only the data for 2019 are shown.

Perhaps that is because making any comparisons with previous years would show the Constitutional Tribunal under Julia Przyłębska in a bad light.

Slightly more new cases, slightly fewer judgements

In total, 240 cases were submitted to the Constitutional Tribunal in 2019, 5 more than the year before. The number, however, is still very low, comparable to the level at the end of the 1990s. In 2008-2015, that is, during the rule of the PO-PSL government, twice as many cases were brought to the Constitutional Tribunal.

The cases are divided into those which are not subject to preliminary examination (including constitutional complaints from citizens and requests for investigation from local governments, trade unions or churches), and those that do not require preliminary examination (including applications from the president, the prosecutor general, deputies or senators).

2019 was another year in which the number of rulings issued by the Constitutional Tribunal decreased. In total, the Tribunal issued 70 of them, including 39 decisions to discontinue the proceedings and 31 judgements. The year before, there were two more decisions and five more judgements. Fewer rulings were made in 1999 (66) and 1998 (55): the oldest date shown in the new statistics, and still the record low.

The total of 31 judgements in 2019 is the historical low in the statistics published by the Constitutional Tribunal. For comparison, in 1998, the previous low, the Constitutional Tribunal issued 33 judgments.

A clear collapse can be seen after the change of government at the turn of 2016. In 2015, the Constitutional Tribunal issued 173 rulings (judgements and decisions to discontinue proceedings), while in 2016 there were only 99. After the PiS ‘reform’, the downward trend continued: in 2017 there were 89 rulings, and just 72 in 2018.

The Constitutional Tribunal accepts three times as many complaints

However, this negative tendency may soon change.

Of the cases brought before the CT, only some qualify for substantive examination. In 2019, the Constitutional Tribunal classified 156 of 240 cases as such. It had no choice in the case of requests from specially authorised entities (such as the president or parliamentary deputies), or in the case of legal questions from the courts.

But it could reject constitutional complaints from citizens, and motions from local governments, for example.

However, it did so much less frequently. Almost the same number of cases were referred for preliminary examination in 2018 and 2019 (211 and 210). Nevertheless, in 2019, the Constitutional Tribunal submitted three times as many constitutional complaints for substantive examination, and over twice as many applications from local governments, unions and churches.

Where does this difference come from?

“This may be related to a change in the Court’s policy in this regard. In my opinion, this is a positive change. The more opportunities we create to solve citizens’ problems, the better. The Court clearly wants to work; we will see whether it succeeds. How soon the case is examined depends on its complexity, on the capabilities of the Tribunal, as well as on political factors,” comments Prof. Ryszard Piotrowski, a constitutionalist from the University of Warsaw.

Prof. Anna Rakowska-Trela ​​from the University of Lodz sees several possible reasons for the difference.

“Theoretically, the citizens could learn en masse how to write constitutional complaints better, but this is unlikely. Perhaps the reason was a drop in the professional level of the tribunal staff who initially assess the incoming cases; some of the previous long-standing employees were dismissed,” she explains.

“It is also possible that the Tribunal wants to improve its statistics and image – and to show that it is examining more cases. We will see whether it succeeds. If that is the case, we would certainly be dealing with a top-down decision. Otherwise, the difference in the statistics would not be so visible,” adds the lawyer.

We asked the Constitutional Tribunal why the number of judgements has been decreasing, and why there has been a sudden increase in the number cases referred for substantive examination in 2019; but we are still waiting for a response.

The Supreme Court’s new judges are glad to ask the Tribunal questions

2019 saw a slight uptick in the number of legal questions which Polish courts submitted to the Constitutional Tribunal. These numbered 23 – 8 more than the year before, but only 2 more than in 2016-2017. However, there are still significantly fewer than in 2008-2015. In the record year of 2015, the courts asked the Constitutional Tribunal to provide an opinion on 135 occasions.

Out of 23 legal questions in 2019, as many as 9 were submitted to the Tribunal by the Supreme Court. For comparison, in 2018 the Supreme Court did not address the Constitutional Tribunal at all, and in 2017 it asked only one question.

The increased activity is mainly due to the ‘new’ judges on the Supreme Court, who were appointed with the participation of the neo-NCJ.

Kamil Zaradkiewicz, a judge from the Civil Chamber, has addressed the Court on several occasions, asking them to check the provisions of the Code of Civil Procedure, which allow courts to examine applications for the exclusion of new judges due to possible irregularities in their appointment. Judges from the Extraordinary Control and Public Affairs Chamber also asked about this matter.

Zaradkiewicz also asked the Court to refer to the constitutionality of the examination of the status of new judges following the high-profile judgement by the EU’s Court of Justice of 19 November 2019.

“These are largely questions about the status of judges. As in the case of other political matters, it was not about interpreting the law, but about confirming a version which was favourable to the applicants. We saw the same in 2020, with questions about a dispute over competencies, or to the Marshal of the Sejm about the Electoral Code. It is an attempt to sanction the parliamentary majority’s way of thinking. The ‘neo-judges’ of the Supreme Court were also counting on that,” emphasises Prof. Rakowska-Trela.

“Sometimes it happens, of course, that the Tribunal – whether it has been properly composed or not – examines cases brought by ordinary citizens. However, priority is still given to politically important matters. When such cases arise, all the others go by the wayside,” said the lawyer.

Professor Piotrowski points out that the additional questions are a consequence of the changes to the constitution of the Supreme Court.

“They reflect the need to legitimise these changes. The Constitutional Tribunal is seen precisely as a legitimising body. This would be the right approach if the Tribunal was not in political symbiosis with the parliamentary majority. In these questions, we see that the questioners expect a certain answer to confirm for them that everything is fine, and thus to confirm the truth of the matter in public opinion,” Piotrowski told OKO.press.

“The most questionable aspect is the Constitutional Tribunal’s role in legitimising various anti-constitutional undertakings by means of such questions. The Supreme Court has the right, and even the obligation, to ask questions when it has doubts about compliance with the constitution. However, we must consider whether these questions are intended to respect the constitution or to circumvent it. The CT’s responses themselves reveal a great deal when we situate them in the context of the changes to the judiciary,” adds Piotrowski.