Commissioner for Human Rights

The Commissioner for Human Rights has submitted a motion to the Constitutional Court concerning the amendment to the Act on the Constitutional Court of 19 November 2015. The Commissioner questioned the entire Act. At the same, the Commissioner joined the proceeding before the Constitutional Court which had been initiated by a motion lodged by a group of Members of Parliament concerning the Act on the Constitutional Court of 25 June 2015 – in the scope of the provisions enabling the appointment of 2 judges of the Constitutional Court to replace those whose term of office ended in December 2015.

The Commissioner submitted a motion to the Constitutional Court guided by the need to protect human and civil rights. The issue of independence of the Constitutional Court should be considered from the point of view of its constitutional duty to protect the rights of the individual. As Professor Janina Zakrzewska, a former judge of the Constitutional Court, stated, “the idea of the Constitution is above all the idea of the protection of human rights”. A violation of the freedom and independence of different courts can lead, in consequence, to the emergence of risks for the protection of the fundamental rights and freedoms. Irrespective of the universal nature of its rulings which are binding for all the State authorities, every year in its activities the Constitutional Court considers first of all individual constitutional complaints from citizens (they represent about 75% of all the cases examined by the Court), legal questions and the motions of the authorised bodies. Reference should at least be made to the recent judgement of the Constitutional Court on the tax exempt amount, which was issued in response to a motion of the Commissioner for Human Rights and formulated the fundamental principle of the resources indispensable to ensure the “subsistence level”.

In the opinion of the Commissioner, the Act of 19 November 2015 Amending the Act on the Constitutional Court is as a whole unconstitutional because the procedure for its passing was violated. The Commissioner for Human Rights has fundamental doubts about the pace of the work on the draft amendment, in particular in the light of Article 123 of the Constitution which does not allow a draft Act to be regarded as an urgent one if it concerns the regulation of the system of public authorities. The amending Act was examined only in formal terms in three readings. However, as a matter of fact, its hasty adoption and the failure to hold consultations with the relevant State authorities meant that the Act was voted on, but not considered as required by the Basic Law. Furthermore, in his motion addressed to the Constitutional Court, the Commissioner for Human Rights indicated numerous faults and shortcomings which when considered together represented a flagrant violation of the procedure to pass the appealed normative act.

In his motion, the  Commissioner for Human Rights also draws attention to substantive objections concerning the text of the amendment.

First of all, it should be pointed out that Article 137 of the Act on the Constitutional Court which is repealed by the amendment became irrelevant when the Parliament of the Republic of Poland elected the judges of the Court. In turn, the new provision of Article 137a of the Act which the Commissioner for Human Rights appealed enables the re-election of five judges of the Court who have already been elected and who are unable without their fault to take an oath. Article 137a thus paves the way for enlarging the number of the judges of the Constitutional Court in a way which is unacceptable under the Constitution, as the Constitution provides that the Constitutional Court consists of 15 judges. Moreover, in consequence of the application of this provision, Parliament will transfer its exclusive competence to elect the members of the Court to the executive authority which is the President of the Republic of Poland. Therefore, in the Commissioner’s view, such a regulation also violates the principle of the division of powers which is protected by the Constitution.

As a result of Article 137a appealed by the Commissioner, some judges of the Constitutional Court who have been elected by Parliament would be permanently prevented from discharging their adjudication functions by sustaining their status of suspension from office. Such a solution also violates the principle of tenure of a judge of the Court which is an inherent constituent of the principle of the independence of its judges.

In the Commissioner’s view, Article 2 of the amendment, which provides for the cessation of the term of office of the President and Vice-President of the Court, also violates the Constitution. Since its interpretation can lead to the conclusion that when the Presidents lose their positions the term of office of the persons who hold them also expires, it gives rise to essential  doubts, primarily as to whether it complies with the constitutional principle of correct legislation.

The Commissioner for Human Rights also emphasises that the amending Act also violates the principles laid down in the international law (the Convention on the Protection of Human Rights and Fundamental Liberties and the International Pact on Civil and Political Rights). The Commissioner cites the most important rulings of international courts on the recall of judges and the violation of their independence by legislative and executive authorities.

Dr. Adam Bodnar, the  Commissioner for Human Rights: “I have decided to join the motion submitted to the Constitutional Court by Members of Parliament from the Civic Platform and the Polish Peasants’ Party and to submit my own motion concerning the amendment to the Act on the Constitutional Court. I am guided by the concern about the preservation of the independence and correct functioning of the Constitutional Court – an institution of key importance for the protection of rights and liberties. Recently, first Parliament during its previous term took a controversial decision to elect 2 judges of the Constitutional Court (to replace those whose term of office expired in December). Subsequently, the new Parliament passed an amendment to the Act which threatened the position of the Court in the system of the State, causing the election of as many as 5 judges and the cessation of the term of office of the President and Vice-President of the Constitutional Court. To put it graphically – first, pain was afflicted on a healthy patient and then a treatment was proposed from which the patient may not come alive. For this reason I have attempted to save the patient, i.e. the State ruled by the law, the citizens’ rights and liberties and the Constitution. I hope that as a result of the consideration of my motion the true standards of democracy will be restored”.