Constitutional Tribunal Issues 2 Important Rulings on Changes to Poland's Judiciary

NGOs find one of the decisions, which concern the latest reforms to the judiciary, particularly troubling.

The Polish Constitutional Tribunal has issued two judgments concerning the latest reform of the judicial system. The rulings, issued on October 24, concern the appointment of the Tribunal's top judge and several provisions of the law on proceedings before the Constitutional Tribunal, including the rules that enable the assumption of judicial duties by judges appointed to posts that are already occupied.

The First President of the Supreme Court

The first judgment is related to the provisions that concern the election of the First President of the Supreme Court, which had been in force since 2003. The Constitutional Tribunal has held, inter alia, that the General Assembly of Judges of the Supreme Court cannot determine in its resolution the procedure governing the selection of the First President, as this procedure should be regulated by law.

Judges of the Constitutional Tribunal

The second ruling concerns the constitutionality of the provisions that enable the assumption of judicial duties by judges appointed to posts that are already occupied. The judgment is related to the three draft amendments to the Constitutional Tribunal Act that were presented in November and December 2016, which were challenged by the ombudsman.

The complaint concerned a provision that requires the President of the Constitutional Tribunal (at that time it was judge Julia Przyłębska, the current President of the Tribunal) to assign cases to all judges who have taken the oath before the President. These provisions also included judges appointed to already occupied posts on the Tribunal’s bench.

Several of the judges who heard the case were directly linked to one of the challenged provisions. It is not possible to reconcile such activities with the fundamental principles of law and, in particular, with the rule that says that no one can be a judge of their own case.

Dismissals from the Office of the Constitutional Tribunal

The ombudsman raised concerns about the rules allowing the arbitrary dismissal of former employees of the Office of the Constitutional Tribunal. According to this provisions, unless they are offered the possibility to progress within the new structures that replace the current office, they have to leave their jobs by the end of 2017.

In this regard, the Tribunal's decision itself raises concerns: the court found that regulations allowing arbitrary dismissal, including dismissal of vulnerable people (such as pregnant women), are in line with the Constitution. What's more, it seems impossible to accept the provisions that allow for a selective publication of the Tribunal’s decisions or those that allow judges appointed to already occupied posts to hear the cases before the court. Such decisions of the Tribunal undermine the foundations of the rule of law.