Abstract
Recent years have gone down in the history of the Polish constitutional thought with an unprecedented dispute concerning the underlying principles for the activity and statutory position of the Constitutional Tribunal (‘CT’) . Under the dynamics of political events following the 2015 parliamentary elections the initial doubts whether some of the CT judges were appointed correctly turned into the deepest constitutional crisis in the modern history of Poland which ultimately led to decomposition of the entire state system of constitutional control. Finding all of the underlying causes of that crisis would require multifaceted analyses carried out by experts representing various scientific disciplines. Such an undertaking goes far beyond the boundaries of this study. The aim of this sketch is to reconstruct one of the episodes of the so-called Constitutional Tribunal Crisis which is a direct outcome of the appointment of CT judges by the Sejm (Parliament) to replace judges whose terms did not yet expire . This issue is of key importance for the current discussions on the nature and consequences of CT judgments . The presence of unauthorized persons in CT adjudicating panels became also an important symbolic turning point in the systemic transformation of the Polish constitutional court at the beginning of 2017 .
Highlights
Recent years have gone down in the history of the Polish constitutional thought with an unprecedented dispute concerning the underlying principles for the activity and statutory position of the Constitutional Tribunal (‘CT’)
The legal status of persons elected to the position of a CT judge by the Sejm of the 8th term was assessed on the basis of the judgments of 3 December 20153, in which – having analysed constitutionality of Art. 137 of the Constitutional Tribunal Act of 25 June 20154 – the Tribunal
Terminological differences in the Act and in the Polish Constitution with respect to the concept (CT judge” and the possible error of equivocation was noted by the Tribunal: ‘[T]he terminology adopted, inter alia, on the basis of Article 21(1) of the Constitutional Tribunal Act provides that a judge of the Tribunal elected by the Sejm who has not yet taken the oath of office before the President of Poland is ‘a person elected to assume the office of a judge their appointment was unconstitutional and the procedure should be discontinued on the date of entry into force of the CT judgment16
Summary
In accordance with the prospective nature of CT judgments in the Polish constitutional system the judgment of 3 December 2015 and the rules for the election of CT judges by the Sejm described therein referred to the future situations and pending cases (ex nunc effect). Terminological differences in the Act and in the Polish Constitution with respect to the concept (CT judge” and the possible error of equivocation was noted by the Tribunal: ‘[T]he terminology adopted, inter alia, on the basis of Article 21(1) of the Constitutional Tribunal Act provides that a judge of the Tribunal elected by the Sejm who has not yet taken the oath of office before the President of Poland is ‘a person elected to assume the office of a judge their appointment was unconstitutional and the procedure should be discontinued on the date of entry into force of the CT judgment16 This effect may be classified as a so-called systemic consequence of a CT judgment on unconstitutionality of a law (legal norm) consisting in the ban on further application of the regulation repealed as a result of a negative judgment of the constitutional court, including the prohibition to consider in the proceedings that are underway the events or legal situations relevant thereto which were in the past shaped by the unconstitutional laws (legal norms). No state authority has the right to question the CT judgment of 3 December 2015, and any possible behaviour contrary to that judgment should be appraised as a potentially tortious act, including – with respect to the group of persons specified by law – as a constitutional transgression
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