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Venice, 11 March 2016

Opinion no. 833/2015 Or. Engl.







Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016)

on the basis of comments by:

Ms Veronika BÍLKOVÁ (Member, Czech Republic) Ms Sarah CLEVELAND (Member, USA) Mr Michael FRENDO (Member, Malta) Mr Christoph GRABENWARTER (Member, Austria) Mr Jean-Claude SCHOLSEM (Substitute Member, Belgium) Mr Kaarlo TUORI (Member, Finland) This document will not be distributed at the meeting. Please bring this copy.

www.venice.coe.int CDL-AD(2016)001 -2Table of Contents I. Introduction

General remarks – scope of the opinion


III. Chronology

IV. The judgment K47/14

V. Legal Analysis

A. Constitutional basis

B. Procedure

1. “Sequence rule”

2. Attendance quorum (13 out of 15 Judges)

3. Majority for adopting decisions – 2/3 majority

4. Delay for hearings

5. Conclusion on procedural issues

C. Disciplinary proceedings and dismissal of judges

D. Removal of certain provisions from the Act

E. Composition of the Court

1. Adoption of Articles 137 and 137a of the Act on the Tribunal

2. Constitutional custom preventing the outgoing majority to elect judges after parliamentary elections

3. Principle of Pluralism

VI. Loyal co-operation between State Powers

VII. Conclusion

-3- CDL-AD(2016)001

I. Introduction

1. By letter dated 23 December 2015, the Minister for Foreign Affairs of Poland, Mr Witold Waszczykowski, requested the opinion of the Venice Commission on the constitutional issues addressed in two legislative proposals, submitted to the Sejm on 2 and on 15 December 2015 respectively, to amend the Act on the Constitutional Tribunal of 25 June 2015 (hereinafter “the Act”). In his letter of 31 December 2015, Minister Waszczykowski transmitted to the Venice Commission the amendments to the Act, which had been adopted on 22 December 2015 and promulgated on 28 December 2015 (hereinafter, “the Amendments”). On 14 January 2016, the Ministry of Foreign Affairs transmitted an English translation of the Act and the Amendments (CDL-REF(2015)009) together with translations of the judgments of the Constitutional Tribunal of 3 and 9 December 2015 and an Explanatory Memorandum (CDL-REF(2016)015).

2. The Venice Commission invited Ms Veronika Bílková, Ms Sarah Cleveland, Mr Michael Frendo, Mr Christoph Grabenwarter, Mr Jean-Claude Scholsem and Mr Kaarlo Tuori to act as rapporteurs for this opinion.

3. On 8-9 February 2016, a delegation of the Commission, composed of Messrs Grabenwarter, Scholsem and Tuori, headed by the President of the Commission, Mr Gianni Buquicchio and accompanied by Mr Schnutz Dürr from the Secretariat, visited Warsaw. The delegation met – in chronological order – the First President of the Supreme Court and judges of the Supreme Court (in parallel to this visit, the President of the Venice Commission met the President of Poland), the Chairman of the National Council of the Judiciary and members of the Council, the Minister of Foreign Affairs together with academia, the Marshal of the Senate and representatives of the Senate (including the opposition), the Marshal of the Sejm and representatives of the Sejm (including the opposition), the Deputy Prime Minister and representatives of his Ministry and the Ministry of Justice together with academia, NGOs (the Polish Helsinki Foundation and Ordo Iuris), the Ombudsman, the President and Vice-President of the Constitutional Tribunal and three judges of the Tribunal, the Minister of Justice and Ministers of the Chancellery of the President of Poland. The Venice Commission is grateful to the Ministry of Foreign Affairs for the organisation of the visit.

4. The rapporteurs prepared their comments on the basis of the English translations of the legal acts made available by the Polish authorities and the results of the visit to Warsaw. In reply to the draft opinion, the Polish Government transmitted a position paper, which was considered by the rapporteurs. This position paper will be published on the web-site of the Venice Commission. On 10 March 2016, the rapporteurs had meetings in Venice with a delegation of the Polish Government during which the position paper was discussed.

5. The draft opinion was discussed at the joint meeting of the Sub-Commissions on Constitutional Justice and on Democratic Institutions, in Venice, on 10 March 2016. Following an exchange of views with a delegation of the Polish Government, headed by Mr Konrad Szymański, Secretary of State, Ministry of Foreign Affairs, this opinion was adopted by the Commission at its 106th plenary session (Venice, 11-12 March 2016).

II. General remarks – scope of the opinion

6. The request for an opinion by the Venice Commission refers to the amendments to the Constitutional Tribunal Act of December 2015. While these Amendments do not directly relate to the composition of the Constitutional Tribunal, it is evident that they have an intrinsic link to the composition of the Tribunal, not least because one of the provisions of the Amendments sets a quorum for the Tribunal (13 out of 15 judges) that cannot be reached if the Court is not fully composed.

CDL-AD(2016)001 -4In the light of this connection, the Polish authorities transmitted not only translations of the Law and the Amendments (CDL-REF(2016)009) to the Venice Commission, but also the judgments of the Constitutional Tribunal of 3 and 9 December 2015 as well as a Memorandum that covers both the Amendments of 22 December 2015 and the issue of the appointment of judges (CDL-REF(2016)015).

8. This opinion only refers to the composition of the Court where this is necessary in order to understand the constitutional situation that could result from the Amendments (see section E below). There is, however, no need to examine the Amendments of 19 November 2015, since they were found to be unconstitutional by the Constitutional Tribunal in its judgement of 9 December 2015. This judgement seems to have settled the issues raised by those amendments.

9. The Venice Commission welcomes the fact that that all the interlocutors the delegation met during its visit had insisted that they were in favour of the Constitutional Tribunal having the power to ensure the supremacy of the Constitution. This can be taken as common ground by all political forces in Poland and as a basis for finding a solution to the current constitutional situation.

III. Chronology

10. In order to understand the constitutional situation resulting from the Amendments, it is important to recall the chronology of events leading up to their adoption. The list below is

necessarily incomplete and refers only to major events that are relevant to the opinion:

11. On 11 July 2013: the then President of the Republic of Poland Komorowski submitted the Constitutional Tribunal Bill to the Sejm (Sejm Paper No. 1590). This bill had been prepared on the initiative of a working group, which included former and current judges of the Tribunal, amongst them the Tribunal’s President.

12. From March to May 2015, the Special Subcommittee on the Constitutional Tribunal Bill and later the joint Legislative and Justice and Human Rights Committees prepared reports on the bill.

The President of the Constitutional Tribunal, the General Prosecution Office and the National Council of the Judiciary participated in this work as invited guests of the Sejm.

13. On 25 June 2015, the Sejm adopted the Act on the Constitutional Tribunal,1 which entered into force on 30 August 2015. In its Article 137, the Act provided for the election by the outgoing, 7th term of the Sejm of successors for all judges whose mandate would end in 2015, including those whose mandate would end after the end of the term of the current, 7th term of the Sejm.2

14. On 8 October 2015, during its last session, the Sejm selected five judges – three to replace judges outgoing on 6 November 2015, two to replace those outgoing on 2 and 8 December respectively. Until now, the President of Poland has not accepted the oath of any of the elected “October judges”.

15. On 23 October 2015, a group of Sejm Deputies from the Law and Justice Party appealed to the Constitutional Tribunal challenging the constitutionality of the election of all five judges (case K 29/15). This appeal was withdrawn on 10 November 2015 and the Constitutional Tribunal discontinued the proceedings.

–  –  –

17. On 17 November 2015, a group of deputies (from the Civic Platform Party) re-introduced the identical appeal against the Act, which had been withdrawn on 10 November 2015 (case number K 34/15).

18. On 19 November 2015, the Sejm amended the Act.3 The amendment had been submitted to the Sejm three days earlier and it was signed by the President of Poland on the following day.

This amendment introduced a three-year tenure of office for the President of the Constitutional Tribunal, renewable once, and terminated the tenure of the incumbent President and VicePresident. It also stipulated that the term of office of a constitutional judge starts from the moment of taking the oath before the President.

19. On 23 November 2015, a group of deputies lodged a constitutional complaint against the amendment to the Act adopted on 19 November 2015 (case K 35/15). On the same day, a similar complaint was lodged by the Human Rights Defender (K 37/15). On 24 and 30 November, respectively, other constitutional complaints were lodged by the National Council of the Judiciary and the Chief Justice of the Supreme Court (K 38/15 and 40/15).

20. On 25 November 2015, the Sejm adopted five resolutions invalidating the five resolutions of 8 October 2015 on the election of judges of the Constitutional Tribunal, passed by the Sejm during its 7th term of office.4

21. Two judges and the President of the Tribunal requested to be excluded from the consideration of case K 34/15 on 25 November 2015 (request accepted by the Tribunal on 30 November 2015).

22. 30 November 2015: On the basis of Articles 755(1) and 730(2) of the Civil Procedure Code taken together with Article 74 of the Act, the Constitutional Tribunal decided to take preventive measures requesting the Sejm to abstain from electing new judges until the final verdict in case K 34/15 was delivered.

23. On 1 December 2015, the Constitutional Tribunal (full bench) filed a motion with the President of the Tribunal requesting the consideration of case K 34/15 by a bench of five judges.

24. Notwithstanding the preventive measures taken by the Constitutional Tribunal, on 2 December 2015 the Sejm, proceeded with the election of five new judges, adopting five resolutions.5

25. The President of Poland accepted the oath of those judges on 3 December at 1:30 a.m. (four judges) and 9 December (one judge) respectively. The President of the Tribunal accorded these five persons the status of employees of the Tribunal, who do not perform judicial duties.

26. On 3 December 2015, the Constitutional Tribunal – in a chamber composed of five judges – rendered the decision relating to the complaint of 17 November 2015 (K 34/15). It held that the legal basis for the election of the three judges replacing those judges whose mandate expired before the end of the term of the previous Sejm, was valid and the President was under the obligation to accept their oath. The legal basis for the election of the other two judges was, on the contrary, found to be unconstitutional.

27. On 4 December 2015, a group of Sejm Deputies lodged an application with the Constitutional Tribunal alleging the unconstitutionality of the Sejm’s resolutions adopted on Published in the Journal of Laws (item 1928; the Act entered into force on 5 December 2015.

Official Gazette of the Republic of Poland – Monitor Polski (items 1131 – 1135).

Monitor Polski (items 1182 – 1186).

CDL-AD(2016)001 -6November 2015 as well as the Sejm’s resolutions on the election of five judges of the Tribunal, adopted on 2 December 2015 (case no. U 8/15).

28. On 9 December 2015, the Constitutional Tribunal decided on the constitutionality of the Amendments of 19 November to the Act on the Tribunal (case no. K 35/15). It held that breaches of the Rules of Procedure of the Sejm alone did not render the whole amendment unconstitutional. However, Article 137a, was found unconstitutional to the extent that it provided for the election of the three judges by the new Sejm, replacing judges whose term ended on 6 November 2015. The Tribunal also held that the term of constitutional judges started with their election, not on the day on which they took their oath. The period of 30 days set for the President to take the oath from the judges elected by the Sejm was found unconstitutional as well.

Furthermore the Tribunal held that the introduction of a three-year tenure for the President and Vice-President of the Tribunal was constitutional, but the possibility of their re-election violated the Constitution, since it might undermine the independence of the judge. Finally, the early termination of the term of office of the Tribunal’s President and the Vice-President’s was found to be unconstitutional.

29. In a letter of 10 December 2015, the Head of the Chancellery of the Prime Minister expressed doubts whether the Tribunal had been correctly composed in its decision of 3 December 2015 (case K 34/15) and whether this judgment could be published in the Journal of Laws. The President of the Tribunal replied that judgments of the Tribunal had to be published according to Article 190(1) and (2) of the Constitution.

30. On 22 December 2015, the Sejm adopted an amendment to the Act on the Constitutional Tribunal (approved by the Senate on 24 December 2015 and published on 28 December 2015).

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