ON LEGAL CONSEQUENCES OF JUDGEMENTS OF THE POLISH CONSTITUTIONAL TRIBUNAL PASSED BY AN IRREGULAR PANEL (original) (raw)

A " good " change in the Polish Constitutional Tribunal? 3

SUMMARY: The article presents the development of the constitutional crisis in Poland after the 2015 elections, won by Prawo i Sprawiedliwość. The changes that are taking place in Poland at the moment (the new legislation and the general political attitude presented by the governing party) do not favour liberal democracy in its classical, parliamentarian meaning, but aim at concentrating political power (dominance of the executive branch represented by a political leader). Disarming institutional system that secures balancing of powers is one element of this process. The changes are carried out in the name of the will of the people that cannot be tamed or stopped by law, which places itself above the people. The Constitutional Tribunal, as a guardian of the Constitution (the only body that can adjudicate on the conformity with the Constitution) is one of the first victims of this policy.

CONSTITUTIONAL COURT AND THE CONSTITUTIONAL CRISIS IN POLAND

TORUŃSKIE STUDIA POLSKO-WŁOSKIE XV — STUDI POLACCO-ITALIANI DI TORUŃ XV , 2019

Poland, which along with Hungary, used to be regarded as the leading example of a successful transition to democracy, is now experiencing (along with Hungary) processes of the so-called “illiberal backsliding”. As, unlike in Hungary, the new parliamentary majority is too weak to control constitutional amendments, the process of changes is developing “next” to the principles and rules of the 1997 Constitution of Poland. This paper is focused on the presentation of the consecutive stages of the political absorption of the Court in 2015-2016 (I). It further considers the situation of the “new” Court in its post-2016 form (II), the main streams of criticism of the reform (III), the changes in the situation of the remaining segments of the judicial branch (IV), the reactions of the CJEU and ECtHR (V), and ends with few concluding remarks (VI)

An illiberal turn or a counter-constitutional revolution? About the Polish Constitutional Tribunal before and after 2015

2021

This chapter assesses the systemic changes that have affected the first target of the Law and Justice government the Constitutional Tribunal. One of Hungarian Prime Minister Viktor Orban's speeches, in which illiberal democracy is presented as a political project that constitutes the optimal solution for Hungarian society, is considered to have been the beginning of the approach. In turn, illiberal constitutionalism is defined as ‘capturing the constitution and constitutionalism with legal means such as formal and informal constitutional change and packing and paralyzing the constitutional court. Bruce Ackerman’s theory of constitutional moment was originally formulated in relation to the US political system and takes into account its specificity. The rulings of the Constitutional Tribunal from 2019-2020 presented in the chapter prove that there has already been an 'illiberal turn' in the Constitutional Tribunal itself. The changes that have occurred in Poland since 2015 should really be conceptualised as an illiberal, counter-constitutional revolution.

Chess-boxing around the rule of law – Polish constitutionalism at trial

The 2015/16 dispute over composition and organisational design of the Constitutional Court in Poland (Pol. Trybunał Konstytucyjny – Constitutional Tribunal) involved two major political parties (Law and Justice – PiS, and Civic Platform – PO) taking partisan stance and involving into political rent-seeking, though with varying revolutionary zeal and different levels of subtlety in their attempts to by-pass or outrightly trespass constitutional constraints. The article provides factual and analytical coverage of the constitutional crisis resulting from the conflict that arose around the Constitutional Tribunal. It also presents nuances of the course and dynamics of the conflict as well as its immediate run-up, including the role of the Tribunal and its justices themselves. The paper provides analytical take on the legal and political nexus underpinning and propelling the conflict, as seen against the background of the societal divide and a “tribal” nature of the split among the people of Poland with regard to their appraisal of the socio-economic order that emerged from the Round Table Talks of 1989.

The rule of law in Poland – crisis or a new reality?

Academia Letters, 2021

Following the victory in the presidential and parliamentary elections in 2015 right-wing PiS party has launched a large-scale controversial reform of the judicial system which brought significant changes concerning functions and compositions of the Constitutional Tribunal, the Supreme Court, and the National Council of Judiciary. Introduced changes call into question the independence of the Polish judiciary, both under national and EU law. The article summarizes the main reforms introduced by the ruling party and makes an attempt to answer the question of whether those changes mark only a temporary backslide or constitute a new reality of illiberal democracies within the European Union. The reform began with the Constitutional Tribunal when President Duda, despite the legal obligation to do so, refused to take oaths of new judges elected at the last sitting of the outgoing Sejm (the Lower Chamber of the Parliament). The new Sejm adopted resolutions invalidating the nominations of the previous legislature and elected new judges. Consequently, three judges were appointed for the vacancies already occupied by the judges elected in October. The above-mentioned controversies, together with further amendments on the functioning of the Tribunal, have been found unconstitutional by the Constitutional Tribunal. However, Prime Minister Szydło refused to publish Constitutional Tribunal's judgments in the Official Journal calling them the opinion of some judges. Thus, pursuant to Article 190 of the Constitution, the judgments have not come into force. The UNHRC Special Rapporteur stated that this constitutes a flagrant breach of the principles of judicial independence and the separation of powers[1]. Despite the constitutional obligation, on several occasions, Prime Minister arbitrarily decided on the publication of judgments. The adverse phenomena of peculiar "last instance" in the person of Prime Minister who decides when and whether at all a given judgment will come into force can be observed. The above constitutes a serious inference of the executive branch in judicial independence. Such interference happend once

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, 1 has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy.

Two Faces of the Polish Supreme Court After "Reforms" of the Judiciary System in Poland: The Question of Judicial Independence and Appointments

European Papers, 2020

The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.