The Venice Commission issued an opinion on the controversial new Constitutional Tribunal Act, which was adopted in December 2015. The draft document was leaked to the press and published in a daily newspaper, which drew criticism from some MPs.

Accelerated act

In mid-December 2015, the new act on the Constitutional Tribunal was proposed in the Sejm, the lower house of Poland's Parliament. The legislative process was unusually accelerated, which led to many errors – experts were not consulted, nor were the objections raised by the Sejm’s Legislative Council taken into account.

A number of amendments were introduced as late as the first and second hearings, which caused significant modifications to the original bill proposal. The Sejm adopted the bill on December 22, and the Senate (upper house) followed suit in a vote after an all-night session on December 23-24. The president signed the act on December 28.

The act introduced many regulations that disabled Tribunal’s regular work. According to the amendment, the Tribunal is to rule over most of the cases in plenary session with more judges (13 instead of 9).

Moreover, all cases are to be examined chronologically as they are brought to court and the trials are to be scheduled for 3 or 6 months after the date the parties have been informed of them.

According to the Helsinki Foundation for Human Rights, which has been monitoring the current constitutional crisis in Poland from the very beginning, all the changes mentioned above contribute to the paralysis of the Constitutional Tribunal’s work.

Commission’s opinion

On December 23, 2015, the minister of foreign affairs, Witold Waszczykowski, applied to the Venice Commission with a request to offer an opinion on the amendments to the act on the Constitutional Tribunal, which were still before Parliament at the time.

In mid-February, delegates of the Commission traveled to Poland. During a two-day visit, they met with the president, ombudsman, and representatives from the Sejm, National Council of the Judiciary, Constitutional Tribunal and NGOs.

At the meeting with the Commission’s delegates, the HFHR emphasized specific regulations adopted with the new act that can lead to a total paralysis of the working of the Constitutional Tribunal.

The HFHR expressed concern that the new laws may breach the independence of judges or have negative influence on the right to a fair trial.

According to the schedule, on February 26, the Venice Commission sent to the government the draft opinion, leaving the possibility to respond. The next day, the draft was published by daily newspaper Gazeta Wyborcza.

'Destructive effect'

The Venice Commission concluded in the draft that the work of the Constitutional Tribunal has been disabled, which infringes fundamental qualities of democracy. The Commission wants the Sejm to withdraw the law that appoints new judges instead of those who were lawfully appointed by the previous Parliament.

The Commission also urged all state bodies, especially the government, to act in compliance with the rulings of the Tribunal.

The Venice Commission discussed the most controversial regulations of the act in detail. Analyzing the new rule of examining cases chronologically as they are brought to court, the Commission admitted that other courts of Council of Europe countries, such as the Constitutional Court of Luxembourg, also work according to this practice. However, regulations there allow for exceptions from the rule and important cases may be investigated out of turn.

The draft involves remarks about the act’s "destructive effect on the Constitutional Tribunal" and notes that the act breaches three fundamental rules of the Council of Europe: democracy, human rights and the rule of law and justice.

The Venice Commission explicitly recommended that "the changes in the regulations from December 22nd, 2015 that influence the effectiveness of the Constitutional Tribunal have to be deleted."

Controversy

Publishing the draft of the Commission’s opinion resulted in a heated discussion. Some members of the government expressed their surprise and outrage with the fact that the text was leaked to the media.

Prime Minister Beata Szydło, during an interview with TV channel TRWAM, said that the document is only a draft of the final opinion and that the government plans to address it directly.

Nevertheless, Szydło mentioned that "it is an opinion in no way binding in a sense that the state must follow the recommendations or adjust the law to the opinion, as we are an independent country."

The minister of foreign affairs applied to the Venice Commission with a request to postpone the session of the Commission until June, when the final text of the opinion would be adopted, but the Venice Commission refused that request.

"I am sorry to say that the workings of the Venice Commission, even before its final conclusions, were unscrupulously used for political purpose,” wrote the minister of foreign affairs to the secretary general of the Council of Europe, Thorbjørn Jagland.

The final version of the opinion was adopted during the Commission’s session on March 11 and 12, 2016.