13 Oktober 2023
Reviving a Corpse
The political co-optation of the Constitutional Tribunal has eliminated its role in Poland’s checks and balances. The judges, although associated with the ruling party, are conflicted and some of them refuse to rule, the number of proceedings has fallen dramatically, and the Tribunal's authority has all but disappeared. It is not enough now to pick it up, shake it off, straighten it out, and put it back to where it was in 2015. Instead, if the opposition wins the election, it must rebuild an institution that is both an effective constitutional player, capable of checking the government and a trustworthy and reliable avenue for Polish citizens to assert their constitutional complaints. Continue reading >>
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13 Oktober 2023
To Void or Not To Void
One of the most critical challenges in the process of restoring the rule of law in Poland after the period of ‘Law and Justice’ rule will be regulating the situation in the Constitutional Tribunal. After the unlawful election of three judges by the Sejm in November 2015 and the subsequent recognition of their judicial status by the new President of the Constitutional Tribunal, Julia Przyłębska, the Constitutional Tribunal lost its independence and authority. Instead of defending the Constitution and the rule of law, the Constitutional Tribunal often legitimizes controversial Government actions and openly questions the European standards. Rebuilding the Constitutional Tribunal's authority and restoring its proper functioning will undoubtedly be a challenging task. It must involve at least two actions: firstly, the removal of improperly elected individuals from adjudication and secondly, the regulation of the consequences of their judgments. In the following brief text, I will specifically address the latter issue, based on the report published by the Helsinki Foundation for Human Rights in June 2023. Continue reading >>
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17 Januar 2023
7 Years Later: Poland as a Legal Black Hole
The EU is faced with a Member State where all of its top courts are now unlawfully composed; where every single judicial appointment procedure since 2018 is inherently defective due to the involvement of an unconstitutional body; and where core EU and ECHR requirements relating to effective judicial protection and the fundamental right to an independent court established by law have been held “unconstitutional” in 2021 and 2022 by the body masquerading as Poland’s Constitutional Tribunal. Continue reading >>
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14 August 2022
Extinguishing the Court
The three quasi-judges in the Constitutional Tribunal and their participation in its adjudication are like a spoonful of tar in a barrel of honey: they contaminate the whole of the Tribunal. That is why the whole of the Constitutional Tribunal should be replaced in the event of a electoral victory of the democratic opposition in 2023. Continue reading >>14 März 2022
Statement by Retired Judges of the Constitutional Tribunal on the the Constitutional Tribunal Judgment in case K 7/21
Retired judges of the Constitutional Tribunal state that the judgment in question is another scandalous example of jurisprudence violating the Constitution. Challenging Article 6 of the ECHR for the second time in a short period of time (previously in the judgment of 24.11.2021, K 6/21) is a drastic jurisprudential excess. Continue reading >>14 Februar 2022
From Romania with Love
The CJEU judgment "Euro Box Promotion" explicitly extended the Union’s requirement of judicial independence to constitutional courts for the first time. The ‘Romanian’ ruling carries an important message for the Polish government on how the EU legal order might react to the recent rulings of the Polish Constitutional Tribunal, which negate the primacy of European Union law. As a consequence, the CJEU confirms the right and the obligation of national courts to disregard constitutional court rulings that violate EU law. Continue reading >>
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29 November 2021
The Honest (though Embarrassing) Coming-out of the Polish Constitutional Tribunal
The particular coming-out of the Tribunal, made in the judgment K 6/21 by admitting that the Constitutional Tribunal is not subject in general to the standards inherent in Article 6 EC, leads to the conclusion that the Polish Constitutional Tribunal and its judges need not be independent. Paradoxically, therefore, the judgment confirms (albeit by different reasoning) the disqualification of the Tribunal made in the Xero Flor judgment by ECtHR. And yet the Tribunal intended to remove the negative consequences for itself of the Xero Flor. Continue reading >>
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03 November 2021
Exclusion from the EU is Possible as a Last Resort
On 7 October 2021, the Polish Constitutional Tribunal issued a decision that can only be compared to setting off a bomb. Only integrationist dream-walkers could take the position that there is no legal possibility to withdraw the status of EU membership from an EU member state that permanently disregards the conditions of membership. Continue reading >>
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02 November 2021
Ein Ausschluss aus der EU ist als Ultima-Ratio-Maßnahme möglich
Am 7. Oktober 2021 hat das polnische Verfassungsgericht eine Entscheidung erlassen, die sich nur mit dem Zünden einer Bombe vergleichen lässt. Nur integrationspolitische Traumwandler könnten die Position zu vertreten, dass es keine rechtliche Möglichkeit gibt, einen EU-Mitgliedstaat, der die Mitgliedschaftsbedingungen dauerhaft missachtet, den Status zu entziehen. Continue reading >>27 Oktober 2021
This Was Not Just Another Ultra Vires Judgment!
A few days ago, 27 retired judges of the Polish Constitutional Tribunal have issued a statement concerning the judgment K 3/21 of 7 October 2021. We are both among its signatories. With this article, we hope to contribute to the clarification of the false statements contained in that judgment, its oral explanations and statements of representatives of political authorities, regarding the difficult matters of coexistence of Polish law and European Union law. Continue reading >>
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