Only a few judgments were passed a year – and yet the head of the president's office, Małgorzata Paprocka, defends the Constitutional Tribunal from the times of Julia Przyłębska. He emphasizes that in recent years the tribunal has considered the largest number of constitutional complaints. In this case, however, data is not everything. Here are the tactics that may be behind the statistically high number of completed proceedings.
On December 9, President Andrzej Duda appointed as the new president of the Constitutional Tribunal judge Bogdan Święczkowski. From December 2016, this function was held by Julia Przyłębska – her term as a judge ended on December 9, although the duration of this term was expressed legal doubts. After presenting the act of nomination to Święczkowski, Andrzej Duda said: “This is a very important moment for the Tribunal and always also for the Republic of Poland.”
A day later, the head of the president's office, Małgorzata Paprocka, appeared on the “Rozmowa Piaseckiego” program on TVN24. When asked about the climate around the Constitutional Tribunal, she replied: “In front of Mr. President [TK] really big challenges, because although statistics show that, for example, the largest number of constitutional complaints have been considered in recent years, this is the public perception…” Here the host entered the word. “The largest number of constitutional complaints in recent years?” “Yes, in In a sense, it passed, it passed, Mr. Editor, between the initial inspection and consideration,” Paprocka replied.
“It was probably in recent months, when the coalition took power on October 15, because previously the tribunal was extremely slow and extremely lazy,” said the TVN24 journalist. To this, Paprocka admitted: “That's why I'm talking about it, Mr. Editor. I've said it myself in the media from the president's office… that the expectations for the tribunal to consider pending cases that are important for the state at such a brisk pace, I would say, “Such voices came from the presidential palace.”
At the end of the conversation, she said: “I hope that today the most important issues for this tribunal will be those that concern people.”
“Matters that concern ordinary people” – this is a common term for constitutional complaints mentioned during the conversation quoted here. So how many such cases are waiting for consideration by the Constitutional Tribunal and what are the statistics regarding their consideration by the tribunal headed by Julia Przyłębska? We checked.
What is a constitutional complaint and how does the tribunal consider it?
According to art. 79 section 1 of the Constitution of the Republic of Poland, the right to submit a constitutional complaint is available to anyone who believes that their constitutional freedoms or rights have been violated. This can be done after exhausting legal remedies. A complaint may only concern compliance with the Constitution of the Republic of Poland, an act or other normative act on the basis of which a court or public administration body made a final decision in a given case. Detailed rules for filing a constitutional complaint before the Constitutional Tribunal are specified act on the organization and procedure of proceedings before the Constitutional Tribunal in 2016.
“The Constitutional Tribunal only recognizes constitutional complaints related to the violation of rights or freedoms specified in the Constitution of the Republic of Poland, excluding matters listed in Article 56 of the Constitution (obtaining the right of asylum or refugee status by foreigners)” – we read on the TK website.
Importantly, a constitutional complaint on behalf of the complainant can only be prepared and filed by a qualified legal representative (lawyer or legal advisor) – reserves on the TK website. Only: a judge, prosecutor, attorney, legal advisor, notary and professor or habilitated doctor of legal sciences can prepare and submit it on their own behalf.
Then, a preliminary review of the constitutional complaint takes place. Pursuant to the above-mentioned Act on the organization and procedure of proceedings before the Constitutional Tribunal, the president of the tribunal submits a constitutional complaint to a designated judge for preliminary examination in a closed session. If the complaint meets the formal requirements and there are no obstacles, the Constitutional Tribunal will proceed with it. If the deficiencies in the complaint can be corrected, the Constitutional Tribunal judge sets seven days for their correction. If the complaint does not meet the requirements, the deficiencies were not removed on time or is clearly unfounded, the Constitutional Tribunal refuses to proceed with it. Such a decision may be subject to a complaint within seven days, which, once examined by the Tribunal, may result in the complaint being further processed. The decision not to accept the complaint is final.
A constitutional complaint is considered by a full bench of judges or a smaller panel (e.g. five judges, depending on the decision of the Tribunal). The Tribunal analyzes the compliance of the contested act with the Constitution. The Tribunal may decide to hear the case at a hearing open to the public or in closed session.
A large increase in the number of constitutional complaints submitted: from 2019
Julia Przyłębska was appointed by Andrzej Duda as the president of the tribunal on December 21, 2016. Therefore, we chose the years 2017-2024 (until December 10, 2024) for analysis. We asked the press office of the Constitutional Tribunal to provide data on the number of constitutional complaints filed and considered in this period – but we did not receive any data. So we used statistics on website of the Constitutional Tribunal and v Internet Portal of Constitutional Tribunal Judgments. In both places, constitutional complaints are marked with the reference number “SK”.
And so: in 2017 and 2018, 32 constitutional complaints were filed. But in 2019, it was more than three times as many – 102. A year later – 142; the most in the analyzed period. So you can see a lot of growth. In 2022-2023, over 100 such complaints were also received. In 2024 – by December 10 – 86 such complaints were received.
Most of the Constitutional Tribunal's judgments ended in discontinuation. “Citizens are being deceived”
Information including: on the judgments of the Constitutional Tribunal in matters of constitutional complaints can be found on the Internet Portal of Constitutional Tribunal Judgments. As for constitutional complaints, the tribunal may issue a judgment or decision. To be able to compare the activity of the Constitutional Tribunal in this respect during the times of Julia Przyłębska, the chart shows how many such judgments the Constitutional Tribunal issued from 1997 to December 10, 2024. However, it should be remembered that a complaint submitted to the Constitutional Tribunal does not have to be considered in the same year, therefore the number of judgments issued in a given year cannot be compared with the number of complaints submitted in the same year, because these are incomparable values (hence the separate chart above).
The statistics clearly show that already in 2016 – the last year of the presidency of Przyłębska's predecessor, prof. Andrzej Rzepliński – a five-year decline in the number of Constitutional Tribunal rulings on constitutional complaints began. Adjudications were made 27 to 34 times a year (judgments and decisions in total). The situation improved only in 2021, when the Constitutional Tribunal ruled 58 times. In 2022, this number increased to 62, a year later – to 72 (the highest number since 2009). In 2024, there was a decline – cases involving constitutional complaints were adjudicated only 50 times.
However, let us pay attention to the proportions between judgments and resolutions: under President Julia Przyłębska, the number of judgments issued in constitutional complaints decreased significantly, and the number of resolutions increased. Especially from 2021, these numbers diverge.
In 2016, there were 15 judgments. In the first full year of Przyłębska's term as president, their number dropped to 12. In 2018, there was a temporary recovery – the Constitutional Tribunal issued 18 judgments in cases of constitutional complaints. But over the next four years there were fewer and fewer of them: in 2019 – 14, in 2020 – 10, in 2021 and 2022 – only nine verdicts each. This is the lowest since 1999. In 2023, 15 judgments were issued, but in 2024 (until December 10) only six.
However, the number of decisions in cases concerning constitutional complaints was increasing. In 2017 and 2018 there were 16 of them, in 2019 – 20, in 2020 – 17. And over the next four years, the increase was significant: in 2021, 49 resolutions were issued, in 2022 – 53, in 2023 – 57, in 2024 (until December 10) – 44.
– In recent years, it has been noticed that in the Constitutional Tribunal the preliminary control of constitutional complaints is very mild or practically non-existent. Complaints are easily accepted for substantive consideration – says prof. in an interview with Konkret24. Stanisław Biernat, retired judge of the Constitutional Tribunal, vice-president of the Constitutional Tribunal in 2010-2016. Because in accordance with the Act on the organization and procedure of proceedings before the Constitutional Tribunal, the complaint must pass the initial stage of verification – this is the preliminary procedure. It is then examined whether the complaint is admissible, whether it falls within the tribunal's competences at all and whether it is manifestly unfounded. If at this first stage it is determined that the complaint is inadmissible, a decision will be made refusing to proceed with it. This can be appealed against. The three judges of the Constitutional Tribunal will either uphold the position that there are no grounds to proceed further, or they will allow a substantive examination.
– Meanwhile, many complaints pass through the preliminary inspection screen that should not pass through it. Therefore, they are subject to substantive examination. There, it is again examined whether the case is suitable for passing a judgment. Recently, it is only at the substantive stage that it is determined that issuing a judgment is inadmissible. A discontinuation decision is then issued. This is why there is a large number of resolutions and a small number of judgments – explains Prof. Biernat. – The disproportion between these two types of judgments is growing. Citizens are given the illusion that as a result of their complaints, judgments will be issued stating whether their rights have been violated – he adds.
Former Constitutional Tribunal judge: “current practice is dictated by statistical and image considerations”
What could be behind this state of affairs? Judge Biernat replies: – I think that the current practice is dictated by statistical and image reasons. As a result of admitting complaints to substantive review after a mild or practically non-existent preliminary review, the Constitutional Tribunal issues many decisions to discontinue proceedings. Let me remind you: decisions to discontinue proceedings are judgments. Thanks to this, the statistics of the work of the Constitutional Tribunal look better and we can boast of a large number of completed proceedings.
Judge Biernat also draws attention to another practice that allows the Constitutional Tribunal to demonstrate better statistics. – Another phenomenon that has been observed in recent years is that identical or similar cases are not combined, even though the law allows it. After combining the cases, one judgment can be issued. However, this is not done, one could also say for statistical reasons and to create the impression of the judges' activity. There were even cases where several dozen identical cases were heard separately and several dozen decisions with the same content were issued, says the former vice-president of the Constitutional Tribunal.
We checked: during the times of President Przyłębska – i.e. in the years 2017-2024 – the Constitutional Tribunal issued a total of 272 decisions on constitutional complaints (for Internet Portal of Constitutional Tribunal Judgments). Only in two cases the decisions did not concern the discontinuation of the complaint – the rest were discontinuations that were argued in various ways by the Constitutional Tribunal, e.g. failure to meet the necessary condition for recognizing the admissibility of a constitutional complaint, formal deficiencies, significant formal defects, inadmissibility of issuing a judgment.
Tribunal under Przyłębska vs. tribunal under Rzepliński
We analyzed how the Constitutional Tribunal worked under Julia Przyłębska in Konkret24 in March this year. As the chart below shows, under Przyłębska's leadership, almost half as many judgments were passed in all cases reported to the Constitutional Tribunal than under Andrzej Rzepliński's presidency. We published the status at the end of 2023 because the data for 2024 are still incomplete; not all statistics from the time of President Przyłębska have been published on the Constitutional Tribunal's website yet.
The number of cases brought to the Constitutional Tribunal also decreased – which should have made its work more efficient, but this did not happen. From 2017 to 2022, the number of convictions decreased: from only 36 to 14. It was the lowest in 20 years. In 2023, the Constitutional Tribunal issued 22 judgments. Meanwhile, under the leadership of prof. The Rzepliński Constitutional Tribunal issued 60-70 judgments annually (the most in 2013 and 2014 – 71 each).
Work of the Constitutional Tribunal 2011-2023
Main photo source: Jacek Dominski / Reporter / East News