The Venice Commission Criticizes New Polish Constitutional Tribunal Act

"Paralyzing the work of the Constitutional Tribunal poses a threat to the rule of law, democracy and protection of human rights,” said the Council of Europe's advisory body.
The Commission emphasized that publishing the court’s decision from March 9, 2016, is essential for solving the present constitutional crisis.

Poland's minister of foreign affairs, Witold Waszczykowski, requested in December an opinion from the Venice Commission (the advisory body of Council of Europe) on the country's amendments to its Act on the Constitutional Tribunal.

Adopted in late December 2015, the new act introduces several controversial regulations, including changing the number of judges sitting in full bench from 9 to 13, hearing cases chronologically as they enter the court, and the obligation of making decisions by a two-thirds majority.

During preparations of the opinion, the Venice Commission met the president of Poland, representatives of the government, the Sejm (lower house of the Parliament), judges of the Constitutional Tribunal, the national ombudsman, and representatives of NGOs.

The Commission released its opinion in March, in which it criticized all changes introduced by the amendment. According to its opinion, the changes would slow down or even paralyze the work of the Constitutional Tribunal, and doing so would be unacceptable according to European standards.

Appointments

Part of the opinion is dedicated to the method of appointing judges of the Tribunal. The Venice Commission points out that the arguments about replacing the three judges whose term of office expired in November 2015 became the trigger for the entire crisis.

"Despite the fact that the Parliament’s members are changed after elections, it cannot be deprived of power to make its own decisions regarding issues that appear during its term of office. It would be contrary to the principles of democracy, if the Parliament could choose public officials including judges in advance – even if the seats were to be vacant as soon as during the next term of office of the Parliament," says the Commission. "And vice versa, the new Parliament has to respect the previous one’s decisions regarding appointment of public officials."

The Venice Commission notes that the present constitutional crisis is not a good moment for changing the Constitution. However, the Commission recommends considering amendments to the Constitution in such a way that the judges of the Tribunal are appointed by a qualified majority of the votes.

Refusal to publish

In its opinion, the Venice Commission also considered the March 9 decision of the Tribunal, which also found the amendments to the act entirely incompatible with national law, although the government has refused to publish this decision.

The Commission emphasized that the government's refusal to publish the Tribunal's decision would not only be contrary to the rule of law, but such an unprecedented move would also further deepen the constitutional crisis.

The amendment to the Act on the Constitutional Tribunal is not the only law from Poland subjected to the Commission’s scrutiny. The Monitoring Committee of the Parliamentary Assembly of the Council of Europe has requested an opinion on the Act on police forces, with the Commission's opinion due by the end of June 2016.

The Venice Commission’s full opinion is available here.