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What's next with the Constitutional Tribunal?

Konrad Wytrykowski
Feb 188 min read

The current government maintains that since 2015 the Constitutional Tribunal has been composed of three judges elected in a defective manner because they were elected to positions that had been previously filled.[1]

According to the government, the Constitutional Tribunal has been “subordinated to political interests”, which has resulted in “the institution’s inability to fulfil its constitutional role as the guardian of the Constitution’s supremacy, the principles of democratic rule of law, and the protection of individual freedoms and rights.”[2]

Already during the first days of ruling, the new government began to leave an annotation to Tribunals' verdicts in the Journal of Laws of the Republic of Poland (published by the Prime Minister) that says that the Constitutional Tribunal is deprived of characteristics of the legally appointed tribunal due to the presence of an unauthorized member and published verdict was released in a form which had been appointed with a violation of a basic rule having use in electing judges to the Constitutional Tribunal and as a consequence violating the core of the right to a tribunal established by law.[3]

This annotation located on the verdicts given by the Constitutional Tribunal has no legal foundation[4].

On 6 March 2024, the Sejm adopted a resolution on eliminating the effects of the constitutional crisis of 2015-2023 in the context of the activities of the Constitutional Tribunal[5], which questioned the effectiveness of all activities of the Constitutional Tribunal. Since its adoption, the government has ceased publishing any rulings of the Constitutional Tribunal.[6]

On 13 September 2024, the Sejm adopted amended versions of the Act on the Constitutional Tribunal[7] and the Act on the provisions introducing the Act on the Constitutional Tribunal.[8]

The ultimate aim of the adopting a new Act on the Constitutional Tribunal is “to establish enduring normative foundations that enable the restoration of the Tribunal’s authority and the reestablishment of its role as an effective, reliable and independent arbiter of constitutional compliance in Poland” and is as such not confined to rectifying the Tribunal’s composition in line with constitutional and international standards.[9]

The legislative measures are, according to the Minister of Justice, rooted in “the principles of transitional justice, a phase Poland is navigating to restore the rule of law after an unprecedented period of democratic and legal regression.”[10]

There are plenty of unconstitutional ideas in the new law, but there are provisions that particularly blatantly violate the legal order.

It is planned, for example, that any rulings issued in the adjudicating panel, which consisted of “a person unauthorized to adjudicate”, are worthless and do not sway the results determined in the Constitution[11].

The draft act on amending the Constitution of the Republic of Poland[12] in the scope concerning the Constitutional Tribunal is still being processed. The essence of this draft is to terminate the term of office of current judges of the Constitutional Tribunal and elect a new composition by the Sejm in one of two procedures: by a 3/5 majority vote, and in the event of failure, by an absolute majority vote[13]. The solution proposed in it raises doubts about whether it is permissible to terminate the term of office of judges of the Constitutional Tribunal and elect their successors[14].

What raises major concerns is that the project treats all the judges in the same way, the correctness of whose election is not questioned by anyone in any way[15]. The project assumes a full renewal of the composition of the Tribunal in a situation where the vast majority of judges whose terms of office would be shortened are not questioned. What is more, the election of all 15 judges at the same time by the same political majority would be an unprecedented situation in the history of the Republic of Poland and would also mean filling the entire Constitutional Tribunal with judges appointed by one and the same political majority.

At the request of the Minister of Justice of Poland, the Venice Commission[16] has assessed the Act on the Introductory Provisions to the Act on the Constitutional Tribunal and the Act on the Constitutional Tribunal and the draft constitutional amendments.

The answer given by the Venice Commission must have come as a great surprise to the Polish authorities[17].

The Venice Commission cannot support the solution proposed in the draft constitutional amendments to restore the lawful composition of the Constitutional Tribunal by completely renewing its membership. The Venice Commission emphasized the fact that 12 out of the 15 current judges of the Constitutional Tribunal have been elected in accordance with the constitutionally prescribed procedure, with their mandates not yet having come to an end.[18]

According to the Venice Commission security of tenure of constitutional court judges is an essential guarantee of their independence. Irremovability is designed to shield the constitutional court judges from „the influence of the political majority of the day”, so as to avoid that each new government could replace sitting judges with newly elected ones of their choice. New appointments could already lead to a more pluralistic composition of the Constitutional Tribunal, because „it cannot be said that the irremovability of the sitting judges of the Constitutional Tribunal would “paralyse the necessary reform efforts” and that at the time of the future adoption of the constitutional amendments there would be a pressing need to interrupt the mandate of all sitting judges of the Constitutional Tribunal.”[19]

The best way to alter the composition of the Constitutional Tribunal is to fill any forthcoming vacancies. Maintaining the tenure of current judges whose mandates will not have expired at that particular moment would confer „an additional advantage of distributing future appointments”, thereby preventing the same qualified majority from being able to elect 15 judges simultaneously. Solutions proposed in projects may run the risk of appearing to be prompted by a desire to rid the Tribunal of any remaining judges appointed by a previous majority, giving the draft amendments an objectionable ad personam character, and simply providing arguments to a future constitutional majority to do the same.[20]

Futhermore, the Commission held that all judgments issued by the Constitutional Tribunal since March 2024 should be published by the government. The Commission also criticized plans to invalidate judgments issued with the participation of so-called “persons unauthorized to adjudicate". Legal certainty presupposes respect for the principle of res iudicata, the principle of finality of judgments. In principle, the legislator cannot invalidate judgments of the Constitutional Tribunal by means of legislation. The Commission proposed introducing the procedure of annullability of decisions. The Venice Commission emphasizes in this respect that any measure taken with a view to “restoring” the rule of law has to meet the overall requirements of the rule of law. Restoring the rule of law means rejecting the root of its backsliding: the idea that the winner takes all, that the majority may rule disregarding the rights and legitimate aspirations of the minority. In this context, some balancing between different – at times apparently conflicting – elements of the rule of law could be required.[21]

Such a harsh assessment by the Venice Commission, which is usually favorable to the current Polish government, may mean that these projects should be rejected in their entirety.

It should be emphasized that the Act on the Constitutional Tribunal and the Act on the provisions introducing the Act on the Constitutional Tribunal, adopted on 23 September, 2024, were not signed by the President, but were referred to... the Constitutional Tribunal to review their conformity to the Constitution.[22]

The idea of ​​a complete renewal of the composition of the Tribunal is particularly shocking, especially when one remembers that Poland did not decide to take a similar step either after the fall of communism in 1989-1990 or when the new Constitution was adopted in 1997, despite the change in the legal nature of this body made at that time[23].


[1] S.Sękowski, T.Pułról, The Rule of Law Has Fallen. How to Raise It, Warsaw 2021, s. 81-88.

[2] Letter of the Minister of Justice of Poland to the Venice Commission, 2 December 2024, www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2024)035-e.

[3] “According to the verdict of the European Court of Human Rights in case: Xero Flor in Poland LLC v. Poland from the day of 7.05.2021, complaint number 4907/18; Wałęsa v. Poland from the day of 23.11.2023, complaint number 50849/21; M.L v. Poland from the day of 14.12.2023, complaint number 40119/21, the Constitutional Tribunal bereft of characteristics of the legally appointed tribunal due to the presence of an unauthorized member. According to this opinion, published verdict was released in a form which had been appointed with a violation of a basic rule having use in electing judges to the Constitutional Tribunal and as a consequence violating the core of the law to a court appointed on a basis of the resolution”. www.obserwator-praworzadnosci.pl.

[4] It is necessary to emphasize that the legal order is governed by the Act on the announcement of normative acts and certain other legal acts – Act of 20 July 2000 on the announcement of normative acts and certain other legal acts (Journal of Laws of 2019, item 1461), which specifies the principles and procedure for announcing these acts. This Act does not authorize the body issuing the official journal to include any annotations. There is no legal basis for such activity of the body, which thus violates the principle of legalism referred to in Art. 7 of the Constitution. In view of the above, it should be recognized that including an annotation does not produce any legal effects.

[5] Resolution of the Sejm of the Republic of Poland of 6 March 2024 on the removal of the effects of the constitutional crisis of 2015-2023 in the context of the activities of the Constitutional Tribunal; Uchwała Sejmu Rzeczypospolitej Polskiej z dnia 6 marca 2024 r. w sprawie usunięcia skutków kryzysu konstytucyjnego lat 2015-2023 w kontekście działalności Trybunału Konstytucyjnego; www.orka.sejm.gov.pl/proc10.nsf/uchwaly/226_u.htm.

[6] Order of the President of the Constitutional Tribunal of 28 November 2024 on the publication of judgments on the website, www.trybunal.gov.pl/wiadomosci/uroczystosci-spotkania-wyklady/art/zarzadzenie-prezesa-trybunalu-konstytucyjnego-z-dnia-28-listopada-2024-r-o-publikacji-orzeczen-na-stronie-internetowej.

[9] Letter of the Minister of Justice of Poland to the Venice Commission, 2 December 2024, www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2024)035-e.

[10] Ibidem.

[11] The bill provides for "a bench of judges of the Tribunal in which a person elected to the position of judge of the Tribunal sat in violation of the provisions of the Act of 25 June 2015 on the Constitutional Tribunal (Journal of Laws of 2016, item 293 and of 2018, item 1077) and the judgments of the Tribunal of 3 December 2015, file no. K 34/15 (Journal of Laws, item 2129) and of 9 December 2015, file no. K 35/15 (Journal of Laws, item 2147), as well as the person elected in his place, hereinafter referred to as "persons not entitled to adjudicate". (Art. 10 Law of 13 September 2024 – Provisions introducing the Act on the Constitutional Tribunal) www.orka.sejm.gov.pl, Akt prawny.  

[13] Articles 2 and 3 of the draft.

[14] Opinion on the draft act amending the Constitution of the Republic of Poland (Senate Paper No. 55), 16 May 2024; BSA III.021.12.2024., www.senat.gov.pl/download/gfx/senat/pl/senatinicjatywypliki/2124/4/055_sn.pdf.

[15] G.Sroczyński, A "Non-Existent" Judge, but an "Existing" Judgment. How the Government Deepens Chaos in the Courts [Sroczyński's Interviews]; www.wiadomosci.gazeta.pl/wiadomosci/7,114884,31369638,sedzia-nieistniejacy-ale-wyrok-istniejacy-jak-rzad-poglebia.html.

[16] The European Commission for Democracy through Law - better known as the Venice Commission as it meets in Venice - is the Council of Europe's advisory body on constitutional matters. The role of the Venice Commission is to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law.  It also helps to ensure the dissemination and consolidation of a common constitutional heritage, playing a unique role in conflict management, and provides “emergency constitutional aid” to states in transition. www.venice.coe.int/WebForms/pages/?p=01_Presentation.

[17] 1203/2024 - Poland - Opinion on the draft constitutional amendments concerning the Constitutional Tribunal and two laws on the Constitutional Tribunal; www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2024)035-e.

[18] Ibidem.

[19] Ibidem.

[20] Ibidem.

[21] Ibidem.

[23] S.Sękowski, T.Pułról, The Rule of Law Has Fallen. How to Raise It, Warsaw 2021, s. 54-57; M.Muszyński, Unconstitutional CT judges, Rzeczpospolita 27.5.2020.

 
 
 

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