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Constitutional Court. In the times of Julia Przyłębska, “you don’t overwork”? The statistics show the trend

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According to Adrian Zandberg, the Constitutional Tribunal is not an institution “that has been overworked in recent years”. Krzysztof Hetman, MEP, believes that under the presidency of Julia Przyłębska, the tribunal is less effective than under Andrzej Rzepliński. We looked at the statistics – the trends are clear. Experts confirm that the tribunal works more slowly.

The Constitutional Tribunal has recently become famous thanks to letters from six of the 15 members of the tribunal addressed to President Julia Przyłębska, in which they demand the convening of the General Assembly and the selection of candidates for the new President of the Constitutional Tribunal. It’s the aftermath legal dispute about when Przyłębska’s term as president of the tribunal ends. Former members and experts claim that “Przyłębska was appointed under the act, which shows that her term of office is six years and ended on December 20, 2022” (quote for “RepublicRepresentatives of the ruling camp, however, say that Przyłębska’s term as president will end when her term as a member of the Constitutional Tribunal, i.e. in December 2024. Przyłębska herself also claims this.

The letter of the judges and the activity of the current Constitutional Tribunal in general have been the topics of discussion in current affairs programs in recent days. On January 5, in “Polityczne Graffiti” in Polsat News, Adrian Zandberg, co-chairman of the Together Party and MP of the Left, stated that Julia Przyłębska may block the work of the tribunal, although – in his opinion – it will not change much. “Look at how the tribunal functions at the moment, how many judgments there are, how it works. After all, it is not an institution that has been overworked in recent years” Sandberg said.

Przyłębska’s tenure and the activities of the tribunal were also discussed on January 8 in “Kawa na Ława” on TVN24. “At the end of 2019, the effectiveness of the Constitutional Tribunal under the leadership of Ms Przyłębska decreased by 70 percent compared to the presidency of Professor RzeplińskiKrzysztof Hetman, MEP of the Polish People’s Party, said.

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Accusations of slowing down the work of the Constitutional Tribunal during the times of the United Right are not new. They come back from time to time in media reports or expert analyses. In answer Julia Przyłębska regularly providesthat the tribunal is functioning properly, pointing to, inter alia, the alleged arrears from the presidency of Andrzej Rzepliński or the leaves of judges of individual Constitutional Tribunals.

Andrzej Rzepliński was the president of the tribunal for six years, Julia Przyłębska has been in this position for the same amount of time. We have analyzed Online Judgments Portal (IPO) of the Constitutional Tribunal to check the effectiveness of the Tribunal’s work during these two terms of office. At the same time, we remembered that in 2020-2021, due to the coronavirus pandemic, TK could have limited possibilities of action; that the cases reported there have different degrees of complexity – but the numbers clearly show the trend.

14 sentences in 2022. The least in 24 years

Let us recall: On December 21, 2016, Julia Przyłębska was appointed by Andrzej Duda as the president of the Constitutional Tribunal. She replaced Andrzej Rzepliński, appointed by Bronisław Komorowski on December 3, 2010. During the nomination, Andrzej Duda wished Przyłębska to put things in order. He also wanted “the Tribunal to get down to dynamic work”. Which was a suggestion that under Rzepliński this organ was slow and messy.

In 2022, the Constitutional Tribunal issued 14 judgments. This is the least since 24 years and the least since Przyłębska took the chair of the president. The Constitutional Tribunal issued more judgments even during the COVID-19 pandemic: in 2020 – 24, a year later – 19. It issued the most judgments in the first full year with Przyłębska as president, in the second and third – 36 each. The fewest – last year; in five months (in January, May and August-October) the Constitutional Tribunal did not issue any judgment. From August to October – according to the calendar on the tribunal’s website – one hearing was held.

Comparing these numbers with the years of Andrzej Rzepliński’s tenure, one can see a significant decrease in efficiency. Although when Rzepliński left in 2016 and the Constitutional Tribunal also issued 36 judgments then, in earlier years there were much more: 60-70 per year. Meanwhile, in the last two years, there have been several convictions.

MEP Hetman stated that “at the end of 2019, the effectiveness of the Constitutional Tribunal under the leadership of Ms Przyłębska decreased by 70 percent compared to the presidency of Professor Rzepliński”. This is a rather vague list of periods, so we included comparable periods. Since the Constitutional Tribunal with President Przyłębska did not issue any judgment in 2016, we took into account the years 2017-2019 – then there were 103 judgments in total. However, in the first three full years of Rzepliński’s presidency (2011-2013) there were 197 judgments. almost 48 percent lower.

The lower effectiveness of the tribunal under Przyłębska’s presidency can also be seen from the analysis of the decisions issued by the Constitutional Tribunal. When Rzepliński was president, there were an average of 61 per year. Under Przyłębska, the tribunal issued an average of 50 decisions a year (although one must remember about the difficulties associated with the coronavirus pandemic). Under Rzepliński, the Constitutional Tribunal issued the most decisions in 2015 – 125; behind Przyłębska in 2021-61.

Much less of Przyłębska’s sentences than Rzepliński’s

The tribunal from the times of Julia Przyłębska is also unfavorable when we compare the number of sentences issued by her with those issued by Andrzej Rzepliński. For example, in the first full year of their office, this proportion was 12 to 28, and in the sixth year as much as 3 to 16. Each year of her presidency, Julia Przyłębska issued two or three times fewer sentences than Andrzej Rzepliński.

For subsequent analyses, we have selected three categories of cases that are most frequently submitted to the Constitutional Tribunal.

Constitutional Complaints. The number of judgments at this similar level

Anyone can file a constitutional complaint constitutional freedoms or rights have been violated – and after exhaustion of legal remedies. A complaint may only concern the compliance with the Constitution of the Republic of Poland, a statute or other normative act on the basis of which a court or public administration body has finally issued a ruling.

Under Andrzej Rzepliński, the tribunal adjudicated (we include judgments and orders here) in cases concerning constitutional complaints about 50 times a year. In 2016, there was a five-year decline – during this period, 27-34 judgments were made annually. But recent years have been record breaking. In 2021, the Tribunal decided as many as 58 times and this is the best result since 2009. In 2022, there was a slight decrease – cases concerning constitutional complaints were adjudged 47 times.

In the last three years, the number of judgments following constitutional complaints has decreased significantly. Not more than 10 per year. At the beginning of Rzepliński’s presidency, there were a dozen or so. However, in 2021, the Constitutional Tribunal issued as many as 58 decisions – the most in 14 years. In the last two years, there were more of these resolutions than in the last two years of Rzepliński’s presidency.

Requests for examination of compliance with the constitution. In 2022, the fewest decisions in 31 years

A number of institutions may request an examination of the compliance of any provision with the Constitution of the Republic of Poland, including: the president, the marshals of the Sejm and the Senate, the prime minister, a group of 50 MPs, 30 senators, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Prosecutor General, the President of the Supreme Chamber of Control, Ombudsman.

In recent years, there has been a very significant decrease in the processing (judgments, orders, rulings) of such applications. Under the presidency of Andrzej Rzepliński, the Constitutional Tribunal adjudicated such cases 30-40 times a year (in 2015, even 48). Under Julia Przyłębska no more than 31 times a year, and in 2022 only 9 times and it was the lowest number of decisions in 31 years. Under Rzepliński, the Constitutional Tribunal usually issued several dozen judgments a year in these cases; behind Przyłębska in the last four years for several.

Legal questions. In 2022, the fewest sentences since 1998

Each court may submit a question of law to the Constitutional Tribunal as to the compliance of a normative act with the Constitution, ratified international agreements or statute, if the answer to the question of law determines the resolution of the case pending before the court.

When it comes to legal questions, there is also a decrease in the number of decisions under the presidency of Julia Przyłębska. Under her predecessor, there were always several dozen such rulings a year; the most in 2015 – 79. In the next two years, this number dropped significantly, to 23-26 decisions. From 2018 to now, there were the most judgments in 2019 – 16. In 2021 – the fewest, only 9. The same number of judgments were issued 31 years ago. Last year it was adjudged 14 times. At that time, the Constitutional Tribunal issued only one judgment after a legal question was submitted. This is the lowest since 1998.

Experts: “TK works slower”; “decrease in importance”

– These data clearly show that the Constitutional Tribunal works more slowly and looks for formal reasons not to make substantive rulings on the constitutionality of given decisions – believes Marcin Wolny, an attorney at the Helsinki Foundation for Human Rights, author and co-author of two recently published reports on the functioning of the Constitutional Tribunal after 2017. In his opinion, the litmus test for assessing the work of the Constitutional Tribunal are legal questions addressed to it by the courts. – A very clear decrease in the number of these questions in recent years, and thus a decrease in the responses of the Constitutional Tribunal to these questions, may mean a decrease in the trust of the courts in the tribunal – he says in an interview with us.

“In my opinion, these statistics primarily show the decline in the importance of the Tribunal as a center that has authority to resolve key legal problems in Poland” – says Dr. Mateusz Radajewski, a constitutionalist from the SWPS University in Wrocław, in the analysis sent to us. In his opinion, this is evidenced in particular by a significant decrease in judgments in cases arising from motions and questions of law. He is not surprised that a more or less similar number of decisions on constitutional complaints has been maintained. “These are cases brought by individual citizens who use the Constitutional Tribunal as a body that can help them obtain a favorable decision in their specific cases. Therefore, the problems around the Tribunal do not translate into the number of cases of this type” – he notes .

“In general, these statistics raise questions as to whether it is justified to pay such high salaries to the judges of the Constitutional Tribunal as they are currently, since they are burdened with such a small amount of work” – sums up the constitutionalist.

Jan Kunert, cooperation Bartosz Chyż

Main photo source: Constitutional Court



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