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.
The Uncertain Legal Effect of the Tribunal’s Judgments
In May 2021 in Xero Flor in Poland sp. z o.o. v Poland, the ECtHR declared that a decision by the Constitutional Tribunal to dismiss a constitutional complaint filed by a private company violated Article 6 of Convention because it was comprised of unlawfully elected judges. Because Article 6 guarantees, among other things, the ‘right to a court established by law,’ it requires that the court hearing a particular criminal or civil case consists of duly appointed judges.
The Polish authorities were obliged to implement the judgment since it became final in August 2021. Not only did this not happen, but in November 2021, the Constitutional Tribunal ruled that the ECtHR’s interpretation of the Convention, as applied in the Xero Flor case, was in conflict with the Polish Constitution. The lack of action by the Polish authorities prompted a response from the Committee of Ministers of the Council of Europe. In June and December 2022, the Committee issued decisions mandating the implementation of the Xero Flor judgment, and in June 2023, it adopted an interim resolution on the matter. In all these documents, the Committee emphasized the need to ‘address the status of decisions already adopted with the participation of irregularly appointed judge(s)’.
The Committee of Ministers did not provide detailed guidelines on how to regulate the effects of defective judgments, leaving the Polish authorities some latitude in addressing this issue. Consequently, various solutions may be considered, ranging from declaring all such judgments legally non-existent to more tailored approaches targeting specific judgments. To decide which option is the most appropriate, it is necessary to assess the extent of the problem and analyze the implications of each hypothetical method of regulation.
The Scale of the Problem
Between 2017 and 2022, the Constitutional Tribunal issued a total of 159 judgments, significantly less than in the period between 2011 and 2016 (367). Of these, 85 were delivered with improperly composed panels.
The subject-matter of these 85 rulings varied. Some of them legitimized controversial government actions. For instance, the Constitutional Tribunal upheld the reform of the National Council of the Judiciary, which vested the Sejm with the authority to appoint judges to its composition. Several other rulings compromised European standards on judicial independence. Thus, the Tribunal held that the Constitution prohibited examination of the legality of the judicial appointment process and ruled that some provisions of the ECHR and EU treaties are partially unconstitutional. However, the Tribunal also rendered controversial rulings in matters not connected to the judicial independence, such as the judgment concerning the access to abortion in case of defects of foetus.
Nonetheless, many of the judgments issued by panels which included improperly elected persons do not raise serious controversies in terms of their substance. Some of them even led to the repeal of provisions detrimental to individual rights. Examples include the finding of unconstitutionality of unfair rules governing access to nursing care benefits for caregivers of persons with disabilities, a judgment concerning pre-retirement protection for employees, a ruling which struck down unwarranted restrictions on access to the courts, and one that struck down disproportionate rules for imposing administrative fines. As a result of these and other judgments, legal or administrative proceedings might have been reopened, and changes to laws that grant individuals certain rights have occurred.
In its report, the HFHR identified several options regarding how to treat the judgments that were delivered by unlawfully elected members of the Tribunal.
The most far-reaching solution, proposed in the draft law prepared by the team of experts of the Stefan Batory Foundation, would be to declare all these judgments legally non-existent. It is based on the concept of non-existent judgments (sententia non-existens), according to which rulings tainted by the most serious legal defects are devoid of legal force. Before 2015, the concept was applied mostly in the context of rulings issued on civil or criminal procedure. It remains unclear whether there are theoretical grounds to extend it to the Constitutional Tribunal’s rulings issued in unlawful composition.
Yet, there are also practical ramifications that might accompany such a move. Determining that judgments stating the compatibility of contested provisions with the Constitution are devoid of any legal force would not have particularly dire consequences. This would only entail the necessity to rehear the cases by the Constitutional Tribunal with the correct panel, which is a manageable outcome. However, to declare judgments on the unconstitutionality of legal norms (there was 48 such judgments at the end of 2022) legally non-existent would be much more problematic.
The complications stem from the fact that, generally, when the Constitutional Tribunal declares a provision unconstitutional, the provision loses its legal force and is eliminated from the legal system. Consequently, if the judgments of the Constitutional Tribunal were rendered void, we would have to assume that the ‘repealed’ regulations remained in force all along. This could lead to numerous problems because these judgments were treated as binding by both authorities and citizens, who often acted based on the legal framework shaped by them. Furthermore, in many cases, the Constitutional Tribunal’s judgments were substantively correct, meaning that declaring them void would result in the ‘reinstatement’ of provisions harmful to individual rights. This could affect not only the resolution of new cases but also the rights already acquired by individuals, for example following to the abovementioned ruling on the nursing benefits. Moreover, many other judgments of the Constitutional Tribunal issued with participation of unlawfully elected persons could have served as a basis for, for example, reopening of judicial proceedings and so nullification of such rulings could also affect these new proceedings. Furthermore, in several instances, after the Constitutional Tribunal’s judgment, the Parliament modified laws by introducing new provisions. The HFHR has shown that in some cases, deeming the unconstitutional provisions as never effectively repealed by the Constitutional Tribunal would create a situation where two conflicting provisions coexist: the old one, declared unconstitutional by the Constitutional Tribunal, and the new one, enacted by the legislature after the ‘non-existent ‘ [p. 43-44].
These are just some of the numerous complications that a decision to void all judgments issued by improperly composed panels could lead to. While some of these could be mitigated by introducing appropriate transitional provisions (such measures are indeed contained in the abovementioned draft law proposed by the Stefan Batory Foundation), it remains exceedingly challenging to determine all the effects certain Constitutional Tribunal judgments have had. Consequently, introducing provisions that sufficiently safeguard individuals from all potential negative consequences would be a very difficult task. Indeed, it would be even more difficult if the declaration of non-existence concerned not only the Tribunal’s substantive judgments but also procedural decisions such as admissibility decisions.
Or Not to Void?
Hence, a more moderate approach appears preferable. This might entail reopening proceedings before the Constitutional Tribunal that concluded with judgments issued with participation of unlawfully elected persons. This would avoid many complications related to the abovementioned automatic revival of provisions deemed unconstitutional in irregular proceedings. However, current legislation does not provide for the reopening of proceedings before the Constitutional Tribunal. Moreover, Article 190(1) of the Constitution stating that judgments of the Constitutional Tribunal are ‘final’ has traditionally been interpreted as prohibiting the introduction of mechanisms that allow challenges to the Tribunal’s decisions. Other questions pertain to whether such a mechanism should be a permanent institution or limited to the period of restoring the rule of law, how to regulate the procedural aspects of these proceedings (e.g., initiation of proceedings by application or ex officio), and what the implications of judgments issued through this process might be. For example, would it result in the reinstatement of provisions wrongly deemed unconstitutional in irregular proceedings?
Other solutions are also conceivable. The most conservative one would be to refrain from legislating on the effects of judgments and instead declare irregularities in the Constitutional Tribunal’s actions through a non-binding resolution of the Sejm. Additionally, the legislature could reinstate regulations deemed unconstitutional by the Tribunal by re-enacting relevant laws or change those laws which were found by the Constitutional Tribunal to be in conformity with the Constitution. In addition, relevant authorities could once again challenge regulations previously upheld by the Constitutional Tribunal, under questionable circumstances. However, such an approach may not align with the recommendations of the Committee of Ministers of the Council of Europe. Furthermore, it fails to address the situation of individuals whose rights have been violated as a result of, for example, the discontinuation of proceedings on constitutional complaints by the Constitutional Tribunal in an improperly composed panel (as in the Xero Flor case). It also leaves open how to treat Constitutional Tribunal judgments on the alleged unconstitutionality of the ECHR or EU treaty provisions in the absence of a legislative response.
Towards a Middle Ground
When determining how to regulate the legal consequences of Constitutional Tribunal judgments issued by unauthorized individuals, the authorities should consider any potential effects on the legal system, legal certainty, individual rights, and trust in the legal framework. After all, the process of restoring the rule of law in Poland should adhere to the principle of the rule of law and legal certainty is undoubtedly one of its essential parts.
We have to keep in mind that the Constitutional Tribunal has been rendering judgments involving unlawfully elected individuals for nearly seven years. These judgments now number close to a hundred, and it would be challenging to assert that all these rulings simply do not exist. For years, they have been treated as existing by both state authorities and individuals. Moreover, many of these judgments have led to effects that cannot be easily reversed.
Effectively regulating the legal status of these judgments is a complex task, and there is no ideal solution. A suitable approach should involve mixed measures that harness the strengths of the various proposals available while avoiding or limiting their weaknesses. For instance, one could envision the introduction of a reopening procedure for constitutional complaints that were declared inadmissible or unfounded. Such rulings, unlike those declaring provisions unconstitutional, do not have extensive legal consequences, making their nullification less complicated. Yet, from an individual rights perspective, the possibility of reopening proceedings in cases concluded unfavorably for the individual applicant is of utmost importance. After all, this is precisely the type of case the ECtHR judgment in the Xero Flor case pertained to. The reopening procedure could also be an acceptable mechanism for rulings which declared the unconstitutionality of laws, provided it precludes the revival of the previously repealed provision. This would avoid the abovementioned risk of legal chaos. Simultaneously, nothing would prevent the legislature, even before the Tribunal’s reexamination of the case, from taking step to reinstate or amend certain provisions erroneously assessed by the Constitutional Tribunal in judgments passed in unlawful composition.