On Tuesday, July 16, 2024, the Parliamentary Committee on Justice and Human Rights completed its work on two bills aimed at reforming the Constitutional Tribunal. The draft Constitutional Tribunal Act and the draft Act on the Implementing Provisions of the Constitutional Tribunal Act are part of the so-called Bodnar package. This package also includes a resolution adopted by the Sejm in March and a bill amending the Constitution, which is currently under consideration by the Senate.

The draft Constitutional Tribunal Act stipulates, among other things, that judges of the Tribunal will be elected by the Sejm with a three-fifths majority. Candidates could be nominated not only by parliamentarians but also by the President, the Presidium of the Sejm, the National Council of Prosecutors, and the general assemblies of the Supreme Administrative Court and the Supreme Court. The management of the Tribunal by its President and the disciplinary system would also be reformed. The Act on Implementing Provisions proposes that verdicts issued by the Tribunal involving unqualified individuals, known as “doubles,” be declared null and void.

The bills passed their first reading in the Sejm on April 24, 2024, and a public hearing was held on May 24.

Problematic Disciplinary Proceedings

Ultimately, several dozen amendments were proposed to the bills. Most of these are editorial, but some are substantive. The draft Constitutional Tribunal Act now includes the option for judges to conclude their oath with the phrase “so help me God”; the provision allowing the President and the Attorney General to initiate disciplinary proceedings against a judge was removed; it was decided that the general assembly of Tribunal judges, not the disciplinary court, would decide on authorizing criminal liability; and the Speaker of the Sejm was given the authority to refuse nominations for judgeship in specified cases.

One contentious issue for committee members was including retired Tribunal judges in disciplinary courts. The Legislative Office questioned whether it was feasible to include all retired judges, given their large number, advanced age, and unknown willingness to participate in such proceedings.

Katarzyna Piekarska (Civic Platform) inquired whether a special procedure could be developed for these judges to declare their willingness to participate in advance. Krzysztof Szczucki (Law and Justice) questioned whether this regulation undermines the very concept of retirement, as serving on a disciplinary court would become a duty.

Sławomir Ćwik (Poland 2050) shared Szczucki’s concerns, suggesting that limiting the disciplinary court composition to active Tribunal judges might be a better solution, especially since new regulations will enforce higher standards ensuring their apolitical stance.

Dr. Tomasz Zalasiński, an expert representing the Batory Foundation, defended the original proposal, noting that while the group of retired judges seems large, many might recuse themselves due to past associations, complicating second-instance disciplinary proceedings.

Ultimately, the committee decided to introduce amendments reducing the number of judges in disciplinary panels and stipulated that retired judges would be appointed to such panels by lottery, contingent upon their consent.

Addressing Verdicts Issued by “Doubles”

During the debate on the Act on Implementing Provisions of the Constitutional Tribunal Act, the most extensive discussion centered on Article 7. This article declares that Constitutional Tribunal rulings involving unqualified judges are void and have no legal effect, with the proviso that judicial decisions and final administrative decisions, effective upon the act’s entry into force and issued based on such rulings, remain valid.

The Legislative Office noted that these provisions raise concerns under Article 190(1) of the Constitution, which speaks to the finality of Tribunal rulings, Article 173 on the independence of the judiciary, and Article 10 on the separation and balance of powers.

“This is a key provision, and I am glad the Legislative Office has highlighted these concerns,” said Paweł Jabłoński, a Law and Justice deputy, who also cited the opinion of the Ombudsman:

“The proposed solutions raise constitutional concerns, legislative objections, and could lead to dangerous precedents that future parliaments might exploit. Furthermore, the enactment of the law in this form would worsen the legal situation for many citizens who have benefited from Tribunal rulings issued by improperly appointed panels.”

Jabłoński noted that the Helsinki Foundation for Human Rights also criticized the provision:

“The situation where ordinary legislation seeks to invalidate the final rulings of a constitutional body is unprecedented. I will not propose amendments. I suggest you remove this provision,” said Jabłoński. “I am surprised that you do not address these objections.”

Dr. Zalasiński also participated in the discussion:

“For the social side, retaining Article 7 in its current form is crucial. It is clear that Article 191(1) of the Constitution states that Tribunal rulings are final and that the legislator cannot interfere. However, this concerns whether decisions involving unqualified judges are Tribunal rulings at all. In our view, they are not, and these decisions do not enjoy constitutional protection. These opposition remarks would be valid if they concerned decisions made by properly appointed judges, but that is not the case.”

Dr. Zalasiński referred to rulings by the Polish Constitutional Tribunal and the European Court of Human Rights (ECHR), which confirmed that unqualified individuals had participated in Tribunal panels.

“The Constitutional Tribunal Act refers to the Civil Procedure Code, which explicitly states that decisions made by improperly composed panels are null and void,” argued the lawyer. “The legislator is obliged to implement Tribunal and ECHR rulings. This provision aims to fulfill those obligations.”

Ultimately, Article 7 remained unchanged.

Both bills, along with the amendments, passed the committee vote and are likely to be considered in a plenary session next week.

The above text by Dominika Sitnicka was published in OKO.press on July 17, 2024. Source.