The Venice Commission, which is an advisory body to the Council of Europe, issued an opinion on the changes in the Constitutional Tribunal. In her opinion, ending the terms of office of all judges sitting on the Constitutional Tribunal would be inconsistent with European standards. The Commission emphasized that the solutions taken by the Polish authorities must comply with the principle of irremovability of properly appointed judges.
In the presented opinion, the Venice Commission assessed the draft amendments to the constitution regarding the Constitutional Tribunal and two acts on the Tribunal. The Minister of Justice asked for an opinion on their case Adam Bodnar.
The Sejm adopted the acts with the Senate's amendments on changes to the Constitutional Tribunal in mid-September, and the president Andrzej Duda On October 7, he appealed against them under the preventive control procedure to the Constitutional Tribunal itself. Work on the draft amendment to the constitution is underway in the Senate.
The document, prepared on the basis of expert reports from the Venice Commission, notes that the draft constitutional amendment provides for the removal of all judges currently sitting in the Constitutional Tribunal, including three incorrectly appointed judges. The Commission also noted that the amendments presented currently have no chance of being adopted.
The Commission stated that the key issue was the involvement of three incorrectly appointed judges in the decision-making of the Constitutional Tribunal and that it should be resolved at the legislative level as a priority.
“It must be prevented that three incorrectly appointed judges decide cases under consideration and receive new ones,” the Venice Commission added.
“Radical steps may provide arguments for the future constitutional majority”
The Commission noted that the question arising from the constitutional amendments was whether a complete renewal of the composition of the Tribunal could be justified.
The Commission replied: “While the objective of restoring the legal composition of the Constitutional Tribunal and repairing the rule of law in general is legally justified, the steps chosen by the Polish authorities to achieve this objective must remain consistent with European standards and the rule of law.”
Such a standard, it was recalled, is the “irremovability of properly appointed judges”.
In the opinion of the advisory body of the Council of Europe, “radical steps, even if adopted by a constitutional majority, may seem necessary, this may lead to the risk of making the amendments objective and providing arguments for a future constitutional majority to do the same.”
“Whenever there is a majority in parliament capable of amending the Constitution, judges of the Constitutional Tribunal could fear that their term of office will end and all new judges will be appointed by the political majority of the moment,” the Commission warned.
In restoring the rule of law, she added, “rebuilding public trust in institutions is of the utmost importance.”
Main photo source: Leszek Szymański/PAP