by balkannotes

A Hostile Takeover: How the Polish government took control of the Constitutional Court

A concise but developing timeline

2015:

  • 30 Aug: The Constitutional Tribunal Act – allowing for the election of three judges whose mandate ends in November and two more judges whose mandate ends in December – comes into force. It was adopted in June by the Seventh Sejm’s majority – the Civic Platform-Polish People’s Party coalition.
  • 8 Oct: Ahead of the 25 October general election for the Sejm – the lower chamber of the Polish parliament – the outgoing legislature nominated five judges to be appointed by the President. Three were about to take positions vacated during its tenure and two more were set to occupy new positions vacated during the new legislature’s tenure.
  • 25 Oct: Law and Justice party wins 37.6% of the vote gaining an outright majority in the Sejm and the Senate. 
  • 19 Nov: the newly elected legislature changed the Law on the Constitutional Tribunal. The amendments allowed for the annulment of previous nominations and the appointment of new judges – which the new legislature followed up with on 25 Nov.
  • 2 Dec: the eighth Sejm appoints five new judges, President Andrej Duda takes oath from four of them the same night.
  • 3 Dec: The Constitutional Tribunal[1] comes out with its first judgment on the issue: the old legislature was entitled to nominate the first three judges, but not the second two. The government refuses to publish these in the Official Journal too.
  • 10 Dec: The Tribunal ruled that the new legislature was not allowed to dismiss the three judges but was allowed to appoint the second two.
  • These judgments obliged the President to appoint the three judges nominated by the previous legislature. However, by the time of the judgments, President Andrej Duda had already sworn the five new judges into their positions. As such, the appointment of the judges remained disputed among the public institutions.
  • 22 Dec: The legislature adopted new rules making it more difficult for the Tribunal to review the constitutionality of new legislation: more judges were required to participate in the review process, the majorities needed for a judgment to be adopted were also increased, cases had to be considered on a first-come, first serve basis.[2]
  • 23 Dec: First Vice-President Timmermans writes to the Polish government to request further information on the decision and recommends that the government consult the Venice Commission before enacting the changes to the Law on the Constitutional Tribunal. The Polish government requests an assessment from the Venice Commission but does not wait for its recommendation which will come on 11 March 2016.

2016:

  • 13 Jan: the Commission launches a dialogue with the Polish authorities – or the initial stages of an infringement procedure.
  • In the Feb-Jul period, the Commission and the Polish government exchange a number of letters and meet several times.
  • 9 Mar: the Constitutional Tribunal ruled that the law adopted on 22 Dec 2015 (the amendments to the Constitutional Court Act which complicated the court’s review process) was wholly unconstitutional. The government does not publish the judgement in the Official Journal, devoiding it of any actual consequence as unpublished, it has no legal effect. The government justifies its decision by saying that the Tribunal arrived at the judgement without the required quorum, as provided by the very law that the judgement itself calls unconstitutional. However, there are only 12 lawfully appointed judges at the time and three appointed by the Seventh Sejm (aka in Oct 2015) awaiting swearing-in by President Duda.  
  • 13 Apr: The European Parliament (EP) votes for a resolution urging the Polish Government to respect, publish and fully implement the judgements of the Constitutional Tribunal.
  • 1 Jun: With no solutions provided by the Polish authorities, the EC sends a Rule of Law Opinion to the Polish government, formalizing its concerns.
  • 22 Jul: The Sejm adopts a new law on the Constitutional Tribunal’s workings, affirming the admission of all Constitutional Court judges already sworn in by President Duda (aka, not the three Seventh Sejm judges) and limits the Court’s procedural and organizational independence.
  • 27 Jul: With further no resolutions to the situation, the EC adopts a Rule of Law Recommendations, finding that there is a systemic threat to rule of law in Poland, esp in regard to the non-publication of the 3 and 9 December Tribunal judgements, making them void of legal consequences. The government rejects all points raised.
  • 11 Aug: The Constitutional Tribunal declares some aspects of the 22 July law unconstitutional.
  • The government rejects that judgement too and refuses to publish it in the Official Journal.
  • 16 Aug: The government publishes 21 judgements of the Tribunal rendered in the 6 Apr-19 Jul 2016 period, but the 9 Mar 2015 and 11 Aug 2016 judgements are not published.
  • 14 Sept: the EP adopts a Resolution on the situation in Poland calling on the government to cooperate with the EP.
  • 14 Oct: the Venice Commission adopts its opinion on the 22 July law.
  • 30 Nov-13 Dec: the Sejm adopts a package of three laws including The Status of Judges’ law and the Organization and Proceedings of the Tribunal law (incl on how to elect the President of the Tribunal – perfect timing considering that the incumbent president’s term ends on 19 Dec).
  • 20 Dec: Despite a lack of resolution on the legal status of the General Assembly of Judges of the Constitutional Court, President Duda appoints Julia Przylebska as President of the Constitutional Court. One of her first decisions is to allocate cases to the three judges whose legal status remains in dispute – the ones whose positions were supposed to be taken by nominees from the Seventh Sejm.
  • 21 Dec: The EP adopts a second Rule of Law Recommendation, repeating its conclusion from the earlier recommendation. The government disagrees again.

2017

  • 10 Jan: The Vice President of the Tribunal was obliged to take his remaining leave by the new president. That leave is on 24 March further extended to June 2017 (when his mandate was ending anyway), despite requests by the Vice President to return to work.
  • 12 Jan: the Minister of Justice launches a procedure before the Tribunal to review the 2010 election of three of the Tribunal’s judges leading to no cases being assigned to these three judges.
  • 20 Jan: The government announces a comprehensive reform of the judicial system.
  • 16 Mar: The Tribunal passes a judgement on an amendment of the Assemblies Act.
  • 5 Jul: Following the end of the term of the Vice-President (who has been on forced leave since Jan), Mariusz Muszynski – one of the three judges whose appointment to the Tribunal remains disputed – is appointed as Vice-President of the Tribunal.
  • Jul: Parliament adopts four judicial reform laws on the functions of the Supreme Court,[3] the National Council for the Judiciary, the Ordinary Courts Organization and on the National School of Judiciary.
  • 26 Jul: in response to the new reforms, the EC adopts a third Rule of Law Recommendation, reiterating its concerns over the rule of law in Poland.
  • 29 Jul: The EC launches an infringement procedure against Poland by sending a Letter of Formal Notice.
  • Aug: First media reports emerge about covert contacts of some Tribunal judges with politicians of the Law and Justice Party.
  • 11 Sept: the government starts the “Fair Courts” campaign aimed at garnering social support for the ongoing judicial reform. On the same day, the Tribunal in a panel of five judges declares unconstitutional certain provisions of the Code of Civil Procedure allowing ordinary courts and the Supreme Court to assess the legality of the appointment of the President and the Vice-President of the Tribunal.
  • 12 Sept: The EC sends a Reasoned Opinion to Poland regarding the Polish law on the Ordinary Courts Organization – aka, bringing it to the second stage of the infringement procedure.
  • 13 Sept: the Minister of Justice starts exercising the powers to dismiss court presidents and vice-presidents pursuant to the law on Ordinary Courts Organization.
  • 15 Dec: New laws lower the retirement age for judges from 70 to 65 – applies to all judges currently in office.
  • 20 Dec: The EC issues a fourth Rule of Law Recommendation, stating that the crisis had extended to include “13 laws affecting the entire structure of the justice system in Poland”.

2019:

  • 25 Mar: The Tribunal issues a judgement on an amendment to the National Council of the Judicial Act, the law introducing a key change in the justice system, which affects the legality of the status of judges appointed by the Council.
  • 3 Dec: the term in office of three judges of the Tribunal appointed by the Sixth Sejm in 2010 (the ones the Minister of Justice tried to remove and started a procedure barring them from receiving any cases) ends.
  • 20 Dec: The Sejm voted to allow the Disciplinary Chamber of the Tribunal to remove any judges deemed to be partaking in “political activities”.

2020:

  • 22 Oct: The Tribunal rules on abortion rights sparking mass protests unseen since 1989.

2021:

  • 7 May: The European Court of Human Rights (ECHR) issues a judgement in the case of Xero Flor vs Poland, holding that the fact that a person incorrectly appointed as judge of the Constitutional Court was involved in the delivery of the judgment in the case of the applicant constitutes a violation of the right to a court established by law.

Sources used so far:

Edecapitani, A. (2019) Timeline of EU-Poland relations dealing with the rule of law, European Area of Freedom Security & Justice. Available at: https://free-group.eu/2019/01/26/%EF%BB%BFtimeline-of-eu-poland-relations-dealing-with-the-rule-of-law/ (Accessed: January 4, 2023).

Wolny, M. and Szuleka, M. (2021), A Tool of the Government: The Functioning of the Polish Constitutional Court in 2016-2021. Available at: https://hfhr.pl/upload/2022/01/a-tool-of-the-government_-the-functioning-of-the-polish-constitutional-court-in-2016-2021.pdf (Accessed: January 4, 2023).

[1] The constitutional court

[2] in full configuration, judgements shall be adopted by a majority of two-thirds of the votes, instead of by a simple majority as under the former rules

[3] The highest court in the country.