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HFHR: more legislation on Constitutional Tribunal will only spark further legal dispute

Over recent days, the Sejm has adopted three laws regulating the functioning of the Constitutional Tribunal*. Thus, within the last year, six laws on the Constitutional Tribunal have been adopted. As long as the first three aimed at crippling the effective functioning of the Tribunal, i.e. an on-going review of the legislation enacted by the Parliament, the three new laws are being adopted around the time of the appointment of a new President of the Constitutional Tribunal.

This situation evidences the inflation of law that worsens the legal situation of Citizens, especially those whose cases are pending before the CT. Public authorities that are obliged to counter such situations have failed to fulfil their constitutional duties.

The provisions of the Law on organisation and proceedings before the CT and the Implementing Law raise serious doubts as to their constitutionality, which was noted by, among other institutions, the Supreme Court and the National Council of the Judiciary of Poland. The Implementing Law creates a “non-constitutional” institution of the “judge acting as the President of the Constitutional Tribunal” that is to be designated by the President of Poland. This measure ignores and undermines the constitutional role of the Vice-President of the Constitutional Tribunal and is an example of direct interference of the executive with the organisation and working procedure of the judiciary. These modifications are meant to enable three judges who on 2 December 2015 were unlawfully elected by the Sejm (for the posts that had already been occupied) to take up their judicial functions.

The Helsinki Foundation for Human Rights wants to recall the fact that the President of Poland is still obliged to take the oath from the three judges of the Constitutional Tribunal lawfully elected by the Sejm of the 7th term in October 2015. A failure to fulfil this duty and the signing of another package of laws on the Constitutional Tribunal will not resolve the legal dispute around the Constitutional Tribunal but will intensify it. These laws should be reviewed by the Constitutional Tribunal under the preventive control procedure as to their constitutionality.

*The Law on the status of judges of the Constitutional Tribunal of 30 November 2016, the Law on organisation and proceedings before the Constitutional Tribunal of 30 November 2016, The Law implementing the Law on organisation and proceedings before the Constitutional Tribunal and the status of judges of the Constitutional Tribunal of 13 December 2016.


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