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Chief Justice of Poland’s Constitutional Court elected at illegal session?

On 20 December 2016, the Acting President of the Constitutional Tribunal Julia Przyłębska convened a session of the General Assembly of Judges of the Constitutional Tribunal. The HFHR has requested the disclosure of the minutes of the session. The documents we received suggest that the General Assembly’s deliberations might have been held in violation of statutory law.

Let us remind our readers that in December 2016 the Sejm enacted a package of three new laws on the Constitutional Tribunal. Among other things, the laws introduced a new procedure for the election of the President of the Constitutional Tribunal. Pursuant to newly enacted transitional provisions, after the expiry of the term of the Tribunal’s President, the President of Poland appoints a judge who steps in as the “Acting President of the Constitutional Tribunal”. The position of the “Acting President” raises serious constitutional concerns as the Constitution mentions only the positions of the President and Deputy President of the Constitutional Tribunal.

On 19 December, the President of Poland signed the legislative package into law. The new laws were immediately published in the Journal of Laws. This means that some of their provisions, including the rules governing the election of the new President of the Constitutional Tribunal, became immediately effective. On 20 December, the President of Poland appointed Julia Przybylska as the “Acting President of the Constitutional Tribunal”. According to documents disclosed to the HFHR, judge Przyłębska called the session of the General Assembly to order on 20 December at 1.30 pm while this time frame was communicated to the Tribunal judges only four hours in advance. During that time, one of the judges of the Constitutional Tribunal (Stanisław Rymar) was on holiday leave.

In accordance with the new rules, the General Assembly should have first voted on candidates for the post of the President of the Constitutional Tribunal and only later adopt the relevant resolution. However, such a resolution would need to be adopted by the majority of the judges. Fourteen judges (seven “old” judges and seven judges appointed by the 8th Sejm) took part in the General Assembly’s session. Judge Przyłębska allowed the three judges appointed in December 2015 to participate in the session even though in accordance with the Tribunal’s own jurisprudence their appointments were made without a valid legal basis.

Judge Piotr Pszczółkowski, also appointed in December 2015, challenged the validity of the General Assembly. According to the documents delivered to the HFHR, Judge Pszczółkowski argued that the General Assembly convened by President Przyłębska was invalid. “Pursuant to their wording [the wording of the provisions that became effective on 20 December 2016 – editorial note], the currently applicable law says that the procedure will conform with the Constitution and statutory laws and will be effective only if all fifteen judges of the Constitutional Tribunal participate in the General Assembly’s session.”

Moreover, Judge Przyłębska decided that voting on candidates is tantamount to voting on the resolution for the President. She was the only person who signed the minutes of the General Assembly.

On 21 December 2016, the President of Poland appointed Julia Przyłębska as the President of the Constitutional Tribunal.

“The documents we received suggest that the session of the General Assembly could have been held in violation of statutory law”, says Dr Piotr Kładoczny, Secretary of the HFHR Board. “This, in turn, affects the whole procedure of the selection of the new president of the Constitutional Tribunal and puts into question the legality of Judge Przyłębska’s appointment”, Dr Kładoczny adds.


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