Katarzyna Przyborska: Today, on 9 December, the word of office of Julia Przyłębska, president of the Constitutional Court, is ending. Going twice.
Marcin Szwed: Under the current law, which entered into force in January 2017, the word of office of president is six years.
So, then, in the light of the fact that she was called before these regulations came into force, she's not covered?
Julia Przyłębska is simply a justice of the Court and was its president. As to whether her appointment to this second position was lawful, doubts arose from the beginning – due to violations of the procedure and the fact that 3 people elected to the seats already legally occupied, i.e. alleged doublers, participated in the vote for her appointment. Later, the question of tenure came to this. She was elected as president before the rules of the President's word of office began to apply, but any think that they should apply to her anyway, due to the fact that at the time of her appointment they were already announced in the authoritative diary of the Laws.
So what's the nine-year term?
We request to separate 2 things. The word of office of justice of the Court as justice and the word of office of president of the Court. The president of the Court is 1 of the judges who directs and represents him outside. The Constitution states that it is elected by the president from among the candidates presented by the General Assembly of the TK judges.
The Constitution does not indicate how much the word of office of the president is to be, so for many years it was that it lasted as long as the president was a judge. The word of office of a justice shall be 9 years, in accordance with the Constitution. However, during the PiS regulation period, a provision was introduced limiting the word of office of the president to six years. There were doubts as to whether these fresh regulations applied to the Przyłębska Julia. She maintained that she did not, so she can service as president until the end of her word of office, which ends only now. any experts, but any of the Court's judges, disagreed.
This word of office of justice ends on December 9. But the president of the Podłębska resigned earlier. Why?
As president, she was challenged by some, and after resigning she inactive has the power to drive The Court as acting President. The Act states that if the Court does not have a President, his work is directed by a individual with the longest experience in the Constitutional Tribunal and in erstwhile work in courts and state institutions.
The Court has issued further judgments, late that the change in the organisation of spiritual teaching in public kindergartens and schools, introduced by Barbara Nowacka, is incompatible with the constitution. The Constitutional Tribunal had previously ruled on its case. What's his function right now?
On the 1 hand, we have the Court as a constitutional body that declares the conformity or non-compliance of the laws with the Constitution. If there is simply a disagreement, the provisions of the Act are repealed. But in order for that to happen, they must be announced in the diary of Laws. The government of the current TK does not want to recognise and the Prime Minister, who is liable for issuing the diary of Laws and the diary of the Monitor of Poland, does not print its judgments. Therefore, they do not enter into force.
The government not only publishes judgments given with alleged doubles, but besides with judges elected in accordance with the law. What is the legal basis – not rather known. We besides do not know until erstwhile the government intends to halt publications. possibly until the laws are signed and entered into force to order the situation in the Court.
At the moment, the Court is simply a body provided for in the Constitution and issuing judgments, but as a consequence of their non-publication and non-recognition by the government, they stay ineffective.
On what grounds does the government not accept the decisions of the Constitutional Tribunal?
He refers to the resolution of the Sejm of March 2024. Of course, the CCC has taken many controversial actions in fresh years. It is not only about the participation of the "double judges" elected against the rules of the seats already taken, but besides a series of controversial judgments that may be seen as beyond its competence.
Like what?
These are, for example, cases in which the CCC challenged the case law of the European Court of Human Rights.
The Constitutional Court, which is to measure the constitutionality of legal acts, including laws, has de facto challenged the circumstantial rulings of the Court of Justice in Strasbourg, undesirable to the Government of the Law and Justice. He besides challenged the ultimate Court's resolution on the effects of the alleged neo jurisprudence ruling, and this is not a legislative act, but a resolution on the explanation of regulations.
The Court besides issues safety provisions in individual cases, even erstwhile it is not competent to do so. For example, he issued a safety to hold 1 of the committees of inquiry.
On unauthorised usage Pegasus spy software.
Yeah. The Court considered that the committee should not be working on this. He besides did so in the public tv case. As a result, we have an authority that is not only affected by violations of the right to its cast, but has besides contributed to the fact that it is perceived as politicized.
But does that in itself mean that the government can refuse to print all the judgments of the Constitutional Tribunal? Not really, due to the fact that he doesn't have the authority.
We remember well that the assassination of the democratic strategy in Poland began with the failure of Beata Szydło to print judgments. And then the Constitutional Court was taken over. However, it is hard to compare the failure of Prime Minister Szydło to the failure to print judgments by Prime Minister Tusk.
Yes, but just due to the fact that the situation is different doesn't mean that everything is acceptable. We inactive require the government to decision within its competence. Certainly, the fact that Donald Tusk does not print judgments is problematic, due to the fact that not all judgments of the Constitutional Tribunal are politicized, not all are issued with the participation of persons elected defectively. The Ombudsman late asked the Prime Minister about the legal basis for refusing to print the judgement of the Constitutional Tribunal on unfair rules for determining the amount of pensions of those who decided to quit early. If the judgement had been published, pensioners could have demanded that proceedings be resumed in their cases and that pensions and compensation be increased for the erstwhile period. But they can't do that due to the fact that the conviction hasn't been published. This ruling was given with the participation of the individual chosen unlawfully to be a judge, but, as I said, the government does not print the remaining judgments either.
Another thing we are talking about is the proposal to reduce the TK budget.
These are besides reasonably dangerous actions that can be utilized by anti-democratic forces in the future. If individual does not agree with the Court, they may starve him. It is possible to change the rules and reorganise the TK, but it requires the President's participation.
We now have 2 Court laws that were passed in September of this year. The first 1 reorganises the TK organization. It provides, among another things, for a change in the rules on the appointment of judges, which aims to partially depoliticise this process. It besides foresees changes in the disciplinary accountability of the CCC judges. The second law regulates transitional matters, specified as the legal effects of judgments with "dublers". This issue is peculiarly controversial. The Law assumes that all judgments affected by specified defects are invalid and have no legal effect and that proceedings before the Court of Justice which have been concluded with specified judgments will should be re-identified. However, the acceptance that they do not be in the legal sense can lead to complications, due to the fact that for many years the judgments of the Constitutional Tribunal were published and respected, and the provisions considered unconstitutional – are not mandatory.
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The legislature is presently working on a bill to amend the Constitution, which besides concerns the Constitutional Tribunal. It assumes, among another things, the expiry of the word of office of all erstwhile judges and the re-martialation of the Court. But the Sejm is improbable to have the required majority, 2 thirds, to pass this project. The situation is difficult. After the presidential election, the anticipation of passing a fresh bill may open, but that does not change the fact that the word of office of judges elected during the Law and Justices' regulation will continue.
The coalition announced that it would hold off with the cast of the 3 vacancyes that are now forming.
If you number doubles, then 5 vacancyes, but for now politicians hold back to, I understand, the time to normalize the legal situation in the Court. Then there will most likely be a staff exchange – hopefully for those with no uncertainty about impartiality. But it is not known whether all this will make it possible to reconstruct public assurance in the Court and believe that this body is truly independent, impartial.
There is simply a situation where we have 2 parallel legal systems. There are 2 prosecutors, politicians mention to those institutions that they can influence. Already at the time of the defence of the courts it turned out that most citizens did not realize what was happening. Now things are even more complicated.
Unfortunately. Not all the actions of the current government are my own. However, it must be realised that during the times of the Law and Justice, there has been large chaos in the justice strategy and there is simply a request to remedy this situation. We see that the position of one-quarter of the judges (the alleged neo-judges) is being challenged, just as their judgments, Poland stands before the courts in Strasbourg and Luxembourg, the proceedings go on due to the fact that the courts further measure requests for exclusion or the impartiality test, and if another neo-judge is assigned to the examination of the test, then a test should be applied to it.
We besides have rulings from the European courts that point to irregularities in the functioning of the judiciary following reforms introduced by the Law and Justice.
The Minister of Justice, in order not to deepen the crisis, suspended the organization of fresh competitions for referee vacancyes in common courts, but this besides makes staff problems grow.
Reforms are so necessary, but should be implemented with awareness of the effects they can have, in line with European standards, etc. There is simply a hazard that, in restoring the regulation of law, we will deepen the state of legal uncertainty, and we will introduce further dangerous precedents that individual will be able to exploit someday.
How many neojudges are there?
According to HFPC calculations, over 2.5 thousand. So far, the position of the Association of Polish Judges of Iustitia has been dominated, so that these people, with any exceptions, concerning, among others, judges after the Asseur, reconstruct to erstwhile positions and reopen competitions before the National Judiciary Council.
But specified a solution may violate the constitution that a court ruling is required to remove or to transfer a justice against his will. It may besides rise doubts as to compliance with global standards, which item the request to give judges the right to court in matters relating to their status. We should besides consider how this will affect the efficiency of the judiciary. What if the neo-Judges themselves regulation in any departments of these courts? Who will stay there if they return to their erstwhile positions?
The Venice Commission, in its opinion of 14 October, ruled that it was unacceptable to retreat all these judges from erstwhile positions under the law, due to the fact that the legislative authority has no power to annul the appeals.
So how should this case be solved?
In the opinion of the Venice Commission, a more individual procedure should be established, according to which individual cases would be verified by an independent body and thus decide whether to reverse the judge’s erstwhile position or to approve in any way, with the anticipation of recourse to the court and the anticipation of grouping akin cases so that the full process can be accelerated. We at the Helsinki Foundation always leaned this way too.
Legislative work is now underway in the Codification Commission of the Judiciary and Public Prosecutor's Office. any of its members have so far been alternatively negative towards this individual verification and have been inclined towards the proposal of Iustitia, namely to cancel competitions and return to erstwhile positions without judicial review. However, this concept proves incompatible with what the Venice Commission says. Another task is scheduled to appear at the end of January.
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Marcin Szwed – Doctor of Legal Sciences, lawyer at the Helsinki Human Rights Foundation.
