The judgment of the Constitutional Tribunal of December 5 on the provisions of the Hunting Law was published in the Journal of Laws on Monday. However, above the operative part there was a note that, in accordance with the judgments of the European Court of Human Rights, the published judgment was issued by a panel “violating the essence of the right to a fair trial”. As we read in the ruling, it was issued with the participation of so-called double judges.
“The Constitution requires compliance with international law. Poland is therefore bound by the judgments of the ECtHR, according to which the Constitutional Tribunal adjudicating in panels with the participation of so-called doubles is not a court established in accordance with the law. ‘Judgments of the Constitutional Tribunal’ issued in such panels will be published with an appropriate note,” he wrote on Monday on the X platform minister without such Maciej Berekwho is responsible for the legislative process in the government.
The entry was accompanied by a scan of the first page of the judgment of the Constitutional Tribunal led by Julia Przyłębska. It was published in the Journal of Laws on Monday, December 18 this year, in position 2698.
However, there was an additional annotation on the first page of the document. “In accordance with the judgments of the European Court of Human Rights in the cases: 50849/21; ML v. Poland of December 14, 2023, complaint no. 40119/21, The Constitutional Tribunal is deprived of the features of a tribunal established by statute when an unauthorized person sits on its composition.. In accordance with these judgments, the published judgment was issued by the appointed panel in violation of the fundamental principle applicable to the election of judges of the Constitutional Tribunal and, consequently, violating the essence of the right to a court established under the law,” we read.
The judgment was issued on December 5 this year by judges: Justyn Piskorski (chairman), Zbigniew Jędrzejewski, Mariusz Muszyński, Bogdan Święczkowski and Jarosław Wyrembak (rapporteur).
The Constitutional Tribunal ruled on December 5 that the provisions of the Hunting Law, limiting liability in certain cases for damage to crops caused by wild animals, are consistent with the constitution.
– It is the consideration of environmental protection, and not the interest of tenants or managers of hunting districts, that causes the state to create conditions conducive to the protection and proper management of wild animal resources – judge Wyrembak explained then. He added that, therefore, “an important common good resulting from ensuring effective environmental protection involves the need to endure the inconvenience associated with the protection of wild animals.”
Compensation is not due to: 2) owners of damaged crops or agricultural products who did not harvest them within 14 days from the end of the harvesting period of this plant species in a given region, determined by the voivodeship assembly by way of a resolution; (….) 4) for damage not exceeding the value of 100 kg of rye per 1 hectare of cultivation;
The dispute over understudy referees and the judgment of the European court
The annotation to the published judgment cited, among others, the case of Xero Flor v. Poland, considered by the ECtHR.
It concerned a company that sued the State Treasury, complaining about the amount of compensation due to damage to a field caused by wild boars and deer. After court judgments unfavorable to the company, the complaint was brought to the Constitutional Tribunal, which discontinued it. The decision was signed by Constitutional Tribunal judge Mariusz Muszyński. The company alleged that the panel of judges hearing its case violated the constitution and filed a complaint to the European Court of Human Rights. The ECtHR agreed with her arguments, stating that the Polish Constitutional Tribunal was ruled by a judge who had no right to do so and found that Poland should pay the company almost three and a half thousand euros in compensation.
Judge Muszyński is one of the so-called double judges. Judges elected during their rule are called this way PIS for already filled positions in the Constitutional Tribunal.
Who are the understudy judges
On October 8, 2015, the Sejm of the 7th term elected – primarily with the votes of the then PO-PSL coalition – five new judges: Roman Hauser, Krzysztof Ślebzak, Andrzej Jakubecki, who were to be the successors of the three judges ending their terms on November 6, and Bronisław Sitek and Andrzej Sokala – in place of judges whose terms ended in December, i.e. already during the next parliamentary term.
On November 25, 2015, the Sejm of the new, 8th term adopted the resolutions proposed by PiS declaring the lack of legal force choice judges of the Constitutional Tribunal of October 8.
On December 2, 2015, the Sejm elected Julia Przyłębska, Piotr Pszczółkowski, Henryk Cioch, Lech Morawski and Mariusz Muszyński, nominated by PiS, as judges of the Constitutional Tribunal. The last three were successors of judges whose terms expired in November. These judges were sworn in by President Duda.
December 3, 2015 Constitutional Court – during the presidency of Andrzej Rzepliński – ruled that the provision on the basis of which three judges were elected in the 7th term of the Sejm (Roman Hauser, Krzysztof Ślebzak, Andrzej Jakubecki) was consistent with the constitution, i.e. the people subsequently elected to their places should not sit in the Tribunal.
However, on December 9, 2015, the Constitutional Tribunal, in its composition supplemented by PiS, declared the amendment to the Constitutional Tribunal Act of November 19, 2015 unconstitutional. According to both of these Constitutional Tribunal judgments – both from December 3 and 9 – the three judges elected by the Sejm of the 7th term were appointed in accordance with the law. However, they never made it to the Tribunal.
Representatives of the then authorities argued that the Sejm had already elected judges to fill the vacant positions on December 2, 2015, so the Constitutional Tribunal was complete. The president swore in Henryk Cioch, Lech Morawski and Mariusz Muszyński to replace the Constitutional Tribunal judges duly elected by the Sejm of the 7th term. Cioch and Morawski died in 2017, and the Sejm then elected Jarosław Wyrembak and Justyn Piskorski in their places. These three judges (Muszyński, Wyrembak, Piskorski) are called understudies because they took the places of judges Hauser, Ślebzak and Jakubecki.
After the last elections – in mid-November this year – the chairman of the KO club Borys Budka he said that the justice system should be repaired in the appropriate order, and that the election of three judges of the Constitutional Tribunal should first be annulled. In this context, judges Mariusz Muszyński, Justyn Piskorski and Jarosław Wyrembak, who were later elected to replace the deceased Henryk Cioch and Lech Morawski, are mentioned.
Main photo source: Tomasz Zieliński/tvnwarszawa.pl