The constitutional crisis in Poland began in October 2015. It was triggered by appointing, by the outgoing Parliament (elected for the 2011–2015 term of office), five new judges of the CT. Subsequently, in December 2015, after parliamentary elections, the newly-elected Sejm re-appointed constitutional judges for the same vacancies.Footnote 3
According to Art. 194 para. 1 of the Polish Constitution:Footnote 4 ‘The Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office.’Footnote 5 On the basis of this constitutional provision, in 2006, five constitutional judges were appointed. Their terms of office began on 6 November (three judges), on 2 December (one judge) and on 8 December 2006 (one judge). Thus, five vacancies opened 9 years later, accordingly, on 7 November, on 3 December and on 9 December 2015.
On 25 June 2015, a few months prior to parliamentary elections, the Parliament adopted the new CT Act (2015 Act) which repealed the hitherto binding CT Act 1997.Footnote 6 The principal aim of the new Act was to simplify the procedure for the constitutional review, to accelerate this procedure and to explain certain procedural doubts that had arisen in the past.
The Sejm decided, however, that the 2015 Act should comprise also some transitional provisions which would concern the election procedure for the vacancies that would open on November and December 2015. According to Art. 137 of the 2015 Act: ‘With regard to judges of the Tribunal whose terms of office end in 2015, the time-limit for submitting the proposal referred to in Art. 19 para. 2 shall be 30 days from the date of entry into force of the Act.’Footnote 7
On 21 July 2015, the then Polish President signed the new CT Act. On 30 July 2015 it was published in the Journal of Laws and it entered into force after the expiry of a 1-month vacatio legis period.Footnote 8 In the meantime, i.e. on 17 July 2015, the President summoned the parliamentary elections. The day of elections was set for 25 October 2015.
During the last session of the outgoing Sejm, the Deputies decided to elect five new constitutional judges. Five Sejm’s resolutions on appointing judges were adopted on 8 October 2015, i.e. 17 days before the parliamentary elections. Each resolution indicated the exact date when the term of office of a newly-elected judge would commence. Three of them indicated 7 November (R. Hauser, A. Jakubecki, K. Ślebzak), one—3 December (B. Sitek) and one—9 December 2015 (A. Sokala).
According to Art. 21 para. 1 of the 2015 Act, a person elected by the Sejm to assume the office of a constitutional judge was subsequently obliged to take the oath of office in the presence of the Polish President.Footnote 9 As regards persons elected on 8 October 2015, the President did not, however, organize the swearing-in ceremony.
Parliamentary elections were held on 25 October 2015. The term of office of the newly-elected Sejm began on 12 November 2015, according to the order of the Polish President, issued on 5 November 2015.Footnote 10
Immediately after the inauguration of the new Sejm’s term of office, on 17 November 2015, a group of Sejm Deputies lodged with the CT a motion to review the constitutionality of Art. 137 and some other provisions of the 2015 Act, in particular provisions concerning the swearing-in stage of a constitutional judge nomination procedure. Two days after having received the motion, the CT announced that the hearing of the case would be carried out 2 weeks later, i.e. on 3 December 2015.
A few days before the hearing, on 25 November 2015, the Sejm adopted five resolutions declaring that the elections of constitutional judges, performed by the previous Sejm on 8 October 2015, had been null and void due to procedural irregularities. In the reasoning for these resolutions their authors (a group of Sejm Deputies) acknowledged that the Sejm was not empowered to dismiss a constitutional judge from office, once he/she had been lawfully elected. The Sejm was, however, authorized to proclaim—merely in the form of a declaration, as opposed to a law-making decision—that a resolution on appointing a constitutional judge had been adopted in breach of law and thus it had been invalid from the very beginning. The authors of the November 2015 resolutions argued that, notwithstanding the transitional provisions of the 2015 Act, the resolutions of 8 October 2015 had contravened the Sejm’s Rules of Procedure (Standing Orders).Footnote 11 For that reason, the majority of the Deputies expressed the opinion that the said resolutions had not brought about any legal effects and, consequently, there were still five judicial vacancies opened at the CT.
Three days before hearing the case, on 30 November 2015, the CT issued a decision on temporary (interim) injunction. The Tribunal called upon the Sejm not to appoint new judges until pronouncing a judgment on constitutionality of the 2015 Act (i.e. until 3 December 2015). It should be pointed out that the temporary injunction was not directly based on the 2015 Act, since this Act did not explicitly empower the Tribunal to issue such injunctions, unless the procedure was initiated by an individual’s constitutional complaint (referred to in Art. 79 of the Constitution). The Tribunal explained, however, that legal bases for the injunction have been found in the Civil Procedure Code 1964 which was applicable, mutatis mutandis, to the procedure before the Tribunal in matters not regulated within the 2015 Act.Footnote 12
The Sejm decided not to follow the temporary injunction. On 2 December 2015 (a day before the CT judgment) the Sejm elected five persons for the offices of constitutional judges (H. Cioch, L. Morawski, M. Muszyński, J. Przyłębska, P. Pszczółkowski). They have been forthwith sworn by the Polish President.Footnote 13
Next day, on 3 December 2015, the Tribunal issued the judgment (ref. no. K 34/15).Footnote 14 In the operative part of the judgment the Tribunal ruled, inter alia, that Art. 137 of the 2015 Act, insofar as it concerned three judges whose terms of office ended on 6 November 2015, was consistent with the Constitution and, insofar as it concerned two judges whose terms of office either ended on 2 December 2015 or would end on 8 December 2015, violated the Constitution. Furthermore, the Tribunal ruled that the Polish President was, in general, devoid of the power to deny giving the oath of office to a person elected by the Sejm for the office of a constitutional judge. In the reasoning part of its judgment, the CT expressed the viewpoint that three judges had been lawfully elected by the previous Sejm and, therefore, the President was still under obligation to give them the oath of office. The Tribunal was of the opinion that the appointment of two other judges lay within the scope of competence of the newly-elected Sejm and, therefore, the previous Sejm had not been constitutionally empowered to fill in these two vacancies ‘in advance.’Footnote 15
One day after the Tribunal had delivered the aforementioned judgment, a group of Sejm Deputies lodged with the Tribunal a motion to review five Sejm’s resolutions of 25 November 2015 (declaring that the appointments performed by the previous Sejm had been invalid) and five resolutions of 2 December 2015 (on appointing new constitutional judges). These motions were not, however, adjudicated to their merits. On 7 January 2016, the CT discontinued proceedings (ref. no. U 8/15), since according to the majority of judges the Tribunal was not constitutionally authorized to review the aforementioned resolutions.
Subsequently, the then CT President A. Rzepliński expressed an opinion that, as a result of the K 34/15 judgment, three judges elected by the previous Sejm for the terms of office beginning on 7 November 2015 (R. Hauser, A. Jakubecki, K. Ślebzak) were still expecting to be sworn by the Polish President. In consequence, the CT President allowed only two judges, from amongst five persons elected by the new Sejm and sworn by the Polish President, to perform their judicial duties, i.e. judges elected for the terms of office beginning on 3 December and 9 December 2015 (P. Pszczółkowski, J. Przyłębska). The CT President denied assigning cases to three other judges elected by the new Sejm (H. Cioch, L. Morawski, M. Muszyński). The CT President did, however, make it possible for these persons to work at the Tribunal, as its employees. They obtained their own office rooms and their judicial salary has been paid every month.
As a result of the aforementioned facts, the CT was composed of 12 judges allowed by the CT President to perform their judicial duties. Three remaining judgeships have become disputable, since, on one hand, the Polish President did not give the oath of office to three persons elected by the previous Sejm and, on the other hand, the CT President did not allow three persons elected by the new Sejm to perform their judicial duties.
In the meantime, on 22 December 2015, the Parliament adopted the Amendment Act, modifying the 2015 Act (Amendment Act). It envisaged, inter alia, that the CT should have adjudicated most of the cases sitting in a plenary session composed of at least 13 judges. It also imposed upon the CT the obligation to adjudicate cases in accordance with the order in which the motions were received by the Tribunal. Furthermore, the Tribunal’s judgments, issued by the full bench, were to be adopted by the qualified majority of 2/3 votes. The Amendment Act entered into force upon the day of its publication (on 28 November 2015), without any vacatio legis period.
After its entry into force, the Amendment Act was immediately challenged before the Tribunal by two groups of Sejm Deputies, the First President of the Supreme Court, the National Council of the Judiciary and by the Ombudsman. The Tribunal decided to bypass some of the Amendment Act’s provisions and to rule upon its conformity with the Constitution sitting in a panel composed of 12 judges, i.e. ten judges appointed prior to parliamentary elections and two judges appointed by the new Sejm, who had been allowed to perform their judicial duties by the CT President. The judgment was issued on 9 March 2016 (ref. no. K 47/15).Footnote 16 The Tribunal ruled that the whole Amendment Act was unconstitutional and the Act failed to bring about any legal consequences, in particular it did not effectively modify the original version of the 2015 Act. The majority of judges decided to proceed the case directly on the basis of the Constitution. These judges were of the opinion that Art. 8 para. 2 and Art. 195 para. 1 of the ConstitutionFootnote 17 empowered the Tribunal to deny applying provisions of the Act of Parliament. Hence, the CT disregarded, inter alia, the provision pursuant to which the full bench of the CT should have been composed of at least 13 judges.
On 9 March 2016, the K 47/15 judgment was verbally announced in the courtroom and, subsequently, its operative part, signed by 12 judges,Footnote 18 was delivered to the Chancellery of the Prime Minister for official publication in the Journal of Laws. It should be pointed out that according to Art. 190 para. 2 of the Constitution: ‘Judgments of the Constitutional Tribunal (…) shall be required to be immediately published in the official publication in which the original normative act was promulgated (…).’ Art. 190 para. 3 of the Constitution stipulates that ‘A judgment of the Constitutional Tribunal shall take effect from the day of its publication (…).’ The duty to publish the Journal of Laws is vested in the Chancellery of the Prime Minister.
The Prime Minister’s Chancellery expressed the opinion that the K 47/15 judgment was null and void, since it had been delivered by the 12-judge panel, as opposed to the panel composed of at least 13 judges, as it had been required by the Amendment Act which, during the Tribunal’s session, had been in force and had enjoyed the presumption of constitutionality. Therefore, the judgment was not perceived by the Prime Minister as a CT’s decision, but rather as a non-binding opinion of the majority of constitutional judges. For this reason, the Prime Minister’s Chancellery denied publishing the judgment. However, according to the majority of the constitutional judges, the act delivered on 9 March 2016 was indeed the CT’s judgment, its verbal announcement resulted in the revoking of the Amendment Act’s presumption of constitutionality and, therefore, this Act may not be applied in the future.
From that moment, the Tribunal continued its routine adjudicating work, but the Prime Minister’s Chancellery refused to publish its judgments in the Journal of Laws. It stemmed from the fact that the Tribunal respected the K 47/15 judgment and went on proceeding on the basis of the 2015 Act in its original wording. The Prime Minister’s Chancellery was of the opinion that the K 47/15 judgment had not brought about any legal effects. Therefore, in the Chancellery’s opinion, the Amendment Act was still in force and decisions issued in breach thereof may not be treated as CT’s judgments.
On 22 July 2016, the Parliament adopted the new CT Act, repealing the 2015 Act. The new Act obliged the Prime Minister to publish all CT’s judgments issued ‘in breach of the 2015 Act,’ except for the K 47/15 judgment. The situation became more complex after the Tribunal, several days before the Act of 22 July 2016 entered into force, had ruled that some of this Act’s provisions had been unconstitutional (judgment of 11 August 2016, ref. no. K 39/16). That judgment has not been published either, since the procedure within which it was issued ignored the Amendment Act of 22 December 2015. Therefore, not only the K 39/16 judgment, but also other CT’s decisions pronounced after that judgment were denied being published.Footnote 19
On 30 November and 13 December 2016, three new Acts concerning the CT, the status of its judges and transitional provisions were issued by the Parliament, signed by the President and entered into force.Footnote 20 On 19 December 2016, the term of office of the hitherto CT President expired. Two days later the Polish President nominated a new CT President (judge J. Przyłębska).Footnote 21
The newly-appointed CT President allowed the three judges elected on 2 December 2015, who had not been hitherto assigned cases by the previous Tribunal’s President (H. Cioch, L. Morawski, M. Muszyński), to perform their judicial duties. Furthermore, the CT President ordered the publication of the hitherto unpublished judgments (except for the K 47/15, K 39/16 and K 44/16 judgments).Footnote 22 These CT President’s orders were based on transitional provisions contained within the Act of 13 December 2016.Footnote 23 The aforementioned three judgments were also removed from the official collection of the CT’s rulings.Footnote 24 Eventually, the aforementioned three judgments were officially published in 2018.Footnote 25