On December 5th, a new amendment to the Constitutional Court Act passed by the new Parliament on November 25th entered into force. Yesterday the Constitutional Court judges looked into the matter to see if the amendment was constitutional.


Provisions of the Constitutional Court Act are unconstitutional

All five judges of the Court found five of the new provisions unconstitutional. They did not question the enactment process, however, they pointed out violations of the rules of the Sejm (Lower Parliament Chamber). They also confirmed that the election of three judges on October 8th was constitutional.

After the passing of the act amendment the Constitutional Court received complaints from the Civic Platform, the Ombudsman and the first judge of the Supreme Court.
The judges unanimously declared the following provisions as unconstitutional:

  • about the possibility of re-election of judges in place of the ones elected on October 8th to replace those whose term of office was due to expire on November 6th,
  • the provision that a newly elected judge of the Court is put under oath by the President within 30 days,
  • that the oath is the beginning of a judge’s term,
  • the provision saying that the current President and Vice-President’s term of office was terminated,
  • and about the possibility of appointing the President of the Court twice.

The Court judgment will enter into force on the day of its publication in the Official Gazette.

Although the Court saw “numerous defects in the legislative process arising from a breach of the Rules of Parliament and the Law on the National Court,” they found no unconstitutionality of the entire amendment for this reason alone. They upheld the view of the Court from 2013 that violations of the Sejm are not a breach of the constitution.

Judge Piotr Tuleja explained that a more detailed investigation of the matter would require the participation of all the Court judges, and that is a minimum of 9, which yesterday was not possible. The president of the Constitutional Court Andrzej Rzepliński and Vice President Stanisław Biernat – at their own request – were excluded from the case (because they would be investigating the matter of the termination of their own term of office). Rzepliński also announced that he would not appoint the five judges elected on December 2 by the Parliament until the matter of putting under oath 3 judges elected in October is cleared.

Last Thursday, President Andrzej Duda put under oath four elected judges: Henryk Cioch, Lech Morawski, Mariusz Muszyński and Piotr Pszczółkowski; and on Wednesday – judge Julia Przyłębska. So far, he has not put under oath the three judges selected by the previous Parliament, despite the fact that the Constitutional Court ruled on December 3rd that the selection was constitutional.

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