The Constitutional Tribunal ( pl, Trybunał Konstytucyjny) is the
constitutional court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
of the
Republic of Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populous ...
, a judicial body established to resolve disputes on the constitutionality of the activities of state institutions; its main task is to supervise the compliance of statutory law with the
Constitution of the Republic of Poland
The current Constitution of Poland was founded on 2 April 1997. Formally known as the Constitution of the Republic of Poland ( pl, Konstytucja Rzeczypospolitej Polskiej), it replaced the Small Constitution of 1992, the last amended version of ...
.
Its creation was a request of the
Solidarity movement
Solidarity ( pl, „Solidarność”, ), full name Independent Self-Governing Trade Union "Solidarity" (, abbreviated ''NSZZ „Solidarność”'' ), is a Polish trade union founded in August 1980 at the Lenin Shipyard in Gdańsk, Poland. Subseq ...
following its
1981 National Congress that took place a few weeks before the introduction of
martial law
Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to an emergency where civil forces are overwhelmed, or in an occupied territory.
Use
Marti ...
.
The Tribunal was established on 26 March 1982 and judges took office on 1 January 1986.
The tribunal's powers increased in 1989 with the transition to the capitalist
Third Polish Republic and in 1997 with establishment of a
new Constitution.
The Constitution mandates that its 15 members are elected by the
Sejm
The Sejm (English: , Polish: ), officially known as the Sejm of the Republic of Poland (Polish: ''Sejm Rzeczypospolitej Polskiej''), is the lower house of the bicameral parliament of Poland.
The Sejm has been the highest governing body of t ...
, the lower house, for 9 years. It is the subject of an
appointment crisis since 2015.
It should not be confused with the
Supreme Court of Poland
The Supreme Court ( pl, Sąd Najwyższy) is the highest court in the Republic of Poland. It is located in the Krasiński Square, Warsaw.
One of the chambers of the Supreme Court, the Disciplinary Chamber, was suspended by a judgment of the C ...
.
Powers
The Constitutional Tribunal adjudicates on the compliance with the Constitution of legislation and international agreements (also their ratification), on disputes over the powers of central constitutional bodies, and on compliance with the Constitution of the aims and activities of political parties. It also rules on constitutional complaints.
Composition
The Constitutional Tribunal is made up of 15 judges chosen by the
Sejm RP (the lower house of
parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
) for single nine-year terms. The Constitutional Tribunal constitutes one of the formal guarantees of a state grounded on the rule of law.
Three judges, appointed by the President of the Tribunal, serve as members of the
National Electoral Commission (''Act of 5 January 2011 Electoral Code'').
History
1982–1989: People's Republic of Poland
The Constitutional Tribunal was established by the amendment of the
Constitution of the People's Republic of Poland
The Constitution of the Polish People's Republic (also known as the July Constitution or the Constitution of 1952) was a supreme law passed in communist-ruled Poland on 22 July 1952. It superseded the post-World War II provisional Small Cons ...
on 26 March 1982.
[Dz.U. z 1982 r. nr 11, poz. 83](_blank)
Due to the brevity of the introduced article 33a, it was decided that a law must be brought forth that would outline the proceedings of the Constitutional Tribunal.
This became an intricate process with 15 drafts developed, and the final act was ratified by the
Sejm
The Sejm (English: , Polish: ), officially known as the Sejm of the Republic of Poland (Polish: ''Sejm Rzeczypospolitej Polskiej''), is the lower house of the bicameral parliament of Poland.
The Sejm has been the highest governing body of t ...
on 29 April 1985 which allowed for the formal commencement of the Tribunal's judicial proceedings on 1 January 1986.
But the courts competence and judicial capacity were limited at this time, as all rulings on the constitutionality of bills could be dismissed by a 2/3 majority vote in the Sejm.
This in effect would place the rulings in an indefinite moratorium as these votes rarely occurred.
On 24 January 1986 the first motion, reference U 1/86, was brought before the Constitutional Tribunal on behalf of the Presidium of the Provincial National Council in Wrocław.
The claimants sought to contend two paragraphs of the Ordinance of the Council of Ministers in regard to the sale of state property and the procedures and costs related to it as unconstitutional.
In opposition to the government's stance, the court ruled in a 3-member panel on 28 May 1986 that the introduced paragraphs were unconstitutional.
The Council of Ministers called for a reevaluation of the case, but on 5 November 1986 the Constitutional Tribunal upheld its ruling.
1989–2014: Third Polish Republic
In 1989 the Constitutional Tribunal's powers expanded as it secured the right to universally decide on the binding interpretation of laws.
Many changes came with the enactment of the 1997 Constitution; the number of judges increased from 12 to 15, terms of office were elongated by 1 year for a total of 9 years, and the Tribunal lost its competence to decide the interpretation of legal statutes (in the form of abstract provisions).
2015–2016: Polish Constitutional Court crisis
In
2015
File:2015 Events Collage new.png, From top left, clockwise: Civil service in remembrance of November 2015 Paris attacks; Germanwings Flight 9525 was purposely crashed into the French Alps; the rubble of residences in Kathmandu following the Apri ...
, the governing
Civic Platform
Civic Platform ( pl, Platforma Obywatelska, PO)The party is officially the Civic Platform of the Republic of Poland (''Platforma Obywatelska Rzeczypospolitej Polskiej''). is a political party in Poland. It is currently led by Donald Tusk.
It w ...
(''Platforma Obywatelska'', PO) party lost both the
presidential election
A presidential election is the election of any head of state whose official title is President.
Elections by country
Albania
The president of Albania is elected by the Assembly of Albania who are elected by the Albanian public.
Chile
The pre ...
and the
parliament (Sejm) majority to the
Law and Justice
Law and Justice ( pl, Prawo i Sprawiedliwość , PiS) is a right-wing populist and national-conservative political party in Poland. Its chairman is Jarosław Kaczyński.
It was founded in 2001 by Jarosław and Lech Kaczyński as a direct su ...
party (''Prawo i Sprawiedliwość'', PiS), which won an unprecedented absolute majority of seats.
Before the new
president of Poland
The president of Poland ( pl, Prezydent RP), officially the president of the Republic of Poland ( pl, Prezydent Rzeczypospolitej Polskiej), is the head of state of Poland. Their rights and obligations are determined in the Constitution of Polan ...
,
Andrzej Duda
Andrzej Sebastian Duda (; born 16 May 1972) is a Polish lawyer and politician who has served as president of Poland since 6 August 2015. Before becoming president, Andrzej Duda was a member of Polish Lower House (Sejm) from 2011 to 2014 and the ...
, assumed office on 6 August 2015, and
the new (eighth) Sejm was seated on 12 November 2015, the PO majority attempted to nominate enough judges so that the judicial branch would not quickly fall under the control of PiS.
In 2015, 5 of the 15 seats were due to be replaced. Three terms were due to end during the Sejm's recess (after the 25 October election but before the eighth Sejm was seated on 12 November). Two others were due for early December.
PO attempted to nominate all five seats due to be vacant in the year 2015 in advance. In June 2015, they enacted a provision in which it sought to transfer such power to the Sejm.
Then on 8 October 2015, two weeks before the election, the Sejm elected these 5 judges. The new President Duda refused to let any of them take their
oaths of office
An oath of office is an oath or affirmation a person takes before assuming the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations. Such ...
. After PiS won the elections and a majority of seats, they nominated a different set of five judges who were immediately sworn in.
This ignited a fierce partisan struggle, as the remaining judges in the Tribunal, most of which had been nominated by PO majorities, ruled out 3 of the 5 PiS nominees, validating instead 3 PO nominees,
with the 3 PiS judges sworn in not allowed to hear cases.
As a result, a law was immediately passed by the PiS majority to force the inclusion of its nominees, sparking
protests
A protest (also called a demonstration, remonstration or remonstrance) is a public expression of objection, disapproval or dissent towards an idea or action, typically a political one.
Protests can be thought of as acts of coopera ...
and foreign statements of either hostility or support. As this was not enough, a total of 6 "remedial bills" devised by PiS were enacted in the 2015-2016 period.
A two-thirds majority was instated, diluting partisan influence. Finally, the term of resisting President Rzepliński ended and on 21 December 2016, President
Andrzej Duda
Andrzej Sebastian Duda (; born 16 May 1972) is a Polish lawyer and politician who has served as president of Poland since 6 August 2015. Before becoming president, Andrzej Duda was a member of Polish Lower House (Sejm) from 2011 to 2014 and the ...
appointed junior member
Julia Przyłębska as President of the Constitutional Tribunal.
![Skład TK](https://upload.wikimedia.org/wikipedia/commons/a/a3/Sk%C5%82ad_TK.jpg)
Since the reform and takeover of the Constitutional Tribunal by the
Law and Justice
Law and Justice ( pl, Prawo i Sprawiedliwość , PiS) is a right-wing populist and national-conservative political party in Poland. Its chairman is Jarosław Kaczyński.
It was founded in 2001 by Jarosław and Lech Kaczyński as a direct su ...
, the independence and sovereignty of the institution has been questioned. It was called a "''puppet court''" by Polish opposition judges' associations, some foreign judicial organisations and constitutionalist counterparts.
In February 2020, former Constitutional Tribunal judges, including former presidents of the tribunal
Andrzej Rzepliński
Andrzej Rzepliński (born 26 November 1949) is a Polish lawyer, Professor of Jurisprudence, human right expert, member of International Helsinki Federation for Human Rights, a judge of the Polish Constitutional Tribunal from 2007 and its preside ...
, , , and
Andrzej Zoll
Andrzej Stanisław Zoll (born 27 May 1942) is a Polish lawyer, former judge and president of the Polish Constitutional Tribunal, former Polish Ombudsman, former president of the State Electoral Commission, former president of the Legislative Counc ...
, stated,
PiS having been reelected
in 2019 and
in 2020, they were able to fill the Court's 15 seats completely by 2021.
Landmark decisions
Case K 1/20
The Tribunal received a referral by 119 MPs on whether or not abortions of pregnancies unrelated to rape or not threatening the mother's life, which they call "eugenic", are constitutional. The signatories argued that the provision violates Constitutional protections of
human dignity
Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Enlightenment-era concepts of inherent, inalienable ...
(Article 30), the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
(Article 39) or the prohibition against discrimination (Article 32).
On 22 October 2020, an 11–2 ruling
declared that
abortion in Poland
Abortion in Poland is legal only in cases when the pregnancy is a result of a criminal act or when the Maternal health, woman's life or health is in danger. The last change in the Act on Pregnancy Planning of the Republic of Poland took place on ...
due to foetal abnormality was violating the Constitutional protection of human dignity. This effectively made
abortions
Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregnan ...
on that basis unobtainable for women in Poland. The provision had been used for 1074 of the 1110 legal abortions in 2019. The ruling triggered the
October 2020 Polish protests
October is the tenth month of the year in the Julian and Gregorian calendars and the sixth of seven months to have a length of 31 days. The eighth month in the old calendar of Romulus , October retained its name (from Latin and Greek ''ôct ...
, which forced the government to delay the ruling's publication in the ''
Dziennik Ustaw
''Dziennik Ustaw'' or ''Dziennik Ustaw Rzeczypospolitej Polskiej'' ( en, Journal of Laws of the Republic of Poland, abbreviated Dz. U.) is the most important Polish publication of legal acts. It is the only official source of law for promulgatio ...
'' until 27 January 2021.
Case K 3/21
In July 2021,
Prime minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
Mateusz Morawiecki
Mateusz Jakub Morawiecki (; born 20 June 1968) is a Polish economist, historian and politician who has served as prime minister of Poland since 2017. A member of Law and Justice (PiS), he previously served in the cabinet of prime minister Beata ...
asked the Tribunal for a
constitutional review Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some countries, of the constitutionality of the laws. It is supposed to be a system of preventing violation of the rights granted by the constitution ...
of three provisions of
Treaty on European Union
The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU). The TEU form the basis of EU law, by setting out general principles of the EU's pu ...
. Following a series of hearings of prominent officeholders, the Tribunal ruled on 7 October 2021
in a 12–2 decision that:
# Article 1 of the
Treaty on European Union
The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU). The TEU form the basis of EU law, by setting out general principles of the EU's pu ...
(establishing an "ever closer union"), insofar as it is interpreted by the
European Court of Justice
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
in a "new step" (''nowy etap'') which
#* enlarges the EU institutions' competence beyond the limits that Poland accepted via its treaties,
#* opposes the primacy of the
Constitution of Poland
The current Constitution of Poland was founded on 2 April 1997. Formally known as the Constitution of the Republic of Poland ( pl, Konstytucja Rzeczypospolitej Polskiej), it replaced the Small Constitution of 1992, the last amended version of ...
in both validity and application,
#* opposes the sovereignty of the Polish state,
#: is unconstitutional;
# Article 19 of the
Treaty on European Union
The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU). The TEU form the basis of EU law, by setting out general principles of the EU's pu ...
(that establishes the ECJ), insofar as it gives ordinary courts the right to disregard the Constitution, and to adjudicate on the basis of provisions repealed by the Sejm or deemed unconstitutional by the TK, is unconstitutional;
# Article 19 and Article 2 of the
Treaty on European Union
The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU). The TEU form the basis of EU law, by setting out general principles of the EU's pu ...
(values) are unconstitutional insofar as they empower ordinary courts to question the constitutionality of judicial appointments by the President.
Consequently, all branches of power in Poland argue that Poland's membership in the European Union does not entail that institutions external to the state have the supreme legal authority.
This was widely interpreted as a challenge of the
primacy of European Union law, which emerged in ''
Costa v. ENEL
Costa may refer to:
Biology
* Rib (Latin: ''costa''), in vertebrate anatomy
* Costa (botany), the central strand of a plant leaf or thallus
* Costa (coral), a stony rib, part of the skeleton of a coral
* Costa (entomology), the leading edge of ...
'' (1964), with some talking of a judicial "
Polexit
A Polish withdrawal from the European Union, or Polexit (a portmanteau of "Poland" and "exit"), is the name given to a hypothetical Polish withdrawal from the European Union. The term was coined after Brexit, the process of United Kingdom, Britain ...
".
European primacy, however, had never been fully enshrined by previous Polish rulings, only insofar as it doesn't infringe on Poland's sovereignty (see K 18/04).
This landmark decision marks the culmination of the
escalade over judicial nominations and reforms between Brussels and Warsaw that began in late 2015, when
Law and Justice
Law and Justice ( pl, Prawo i Sprawiedliwość , PiS) is a right-wing populist and national-conservative political party in Poland. Its chairman is Jarosław Kaczyński.
It was founded in 2001 by Jarosław and Lech Kaczyński as a direct su ...
came to power, starting with the
2015 Polish Constitutional Court crisis.
Many politicians in Brussels called upon the
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...
to freeze payments to Poland. The Commission President said she was deeply concerned, and ordered to act swiftly.
The recently-implemented
Rule of Law Conditionality Regulation
The Rule of Law Conditionality Regulation is a regulation of the European Union and Euratom, which allows the European Commission to adopt measures, including the suspension of payment of funds from the EU budget, to member states which violate t ...
could be used.
Presidents and vice presidents
Justices
Current
2015 Polish Constitutional Court crisis
In the summer and autumn 2015, a change of power occurred with
Civic Platform
Civic Platform ( pl, Platforma Obywatelska, PO)The party is officially the Civic Platform of the Republic of Poland (''Platforma Obywatelska Rzeczypospolitej Polskiej''). is a political party in Poland. It is currently led by Donald Tusk.
It w ...
(PO) losing both the Sejm and the Presidency to
Law and Justice
Law and Justice ( pl, Prawo i Sprawiedliwość , PiS) is a right-wing populist and national-conservative political party in Poland. Its chairman is Jarosław Kaczyński.
It was founded in 2001 by Jarosław and Lech Kaczyński as a direct su ...
(PiS). These two branches appoint and swear new judges, respectively.
In 2015, the term of five judges was set to expire, three of which between Sejm election day and the new legislature's session, and two the month after. PO tried to appoint them in advance (they were: Roman Hauser, Krzysztof Ślebzak, Andrzej Jakubecki, Bronisław Sitek and Andrzej Sokala) but their oath was denied by the new PiS President,
Andrzej Duda
Andrzej Sebastian Duda (; born 16 May 1972) is a Polish lawyer and politician who has served as president of Poland since 6 August 2015. Before becoming president, Andrzej Duda was a member of Polish Lower House (Sejm) from 2011 to 2014 and the ...
. As a result, they never sat. The new PiS majority nominated three other judges on 2 December 2015 (
Henryk Cioch, Lech Morawski, Mariusz Muszyński) and two others the next week (Piotr Pszczółkowski, Julia Przyłębska), who were immediately sworn in. Cioch and Morawski later died while in office, and were replaced by Justyn Piskorski and Jarosław Wyrembak.
Of the appointments made before the election, the Constitutional Tribunal itself invalidated the last two and accepted the first three. As a consequence, of the appointments made after the election, the Tribunal accepted the last two (Piotr Pszczółkowski and Julia Przyłębska) and invalidated the first three (Henryk Cioch, Lech Morawski and Mariusz Muszyński). However, the ruling was disputed by the new government, who then went on to change the statutes regulating the Court, in order to have its nominees sit. See
2015 Polish Constitutional Court crisis.
Multiple cases were sent to the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
and the
European Court of Justice
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
, challenging the Tribunal's legal status. In Xero Flor v Poland, the ECHR ruled on 7 May 2021 that a Polish company did not have the right to a fair trial because Muszyński's election was unlawful. The Constitutional Tribunal is expected to judge on 3 August 2021 whether it will comply to the ruling or not; this is interpreted as a decision on whether the European or Polish courts are sovereign. In a 14 July 2021 ruling, the Tribunal rejected the constitutionality of any attempt by the ECHR to suspend the Polish tribunals, as such competence has never been transferred by any treaty.
Length of tenure
This
graphical timeline depicts the length of each current justice's tenure on the Court:
Former
See also
*
Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
*
Rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
*
Rule According to Higher Law
*
Supreme Court of Poland
The Supreme Court ( pl, Sąd Najwyższy) is the highest court in the Republic of Poland. It is located in the Krasiński Square, Warsaw.
One of the chambers of the Supreme Court, the Disciplinary Chamber, was suspended by a judgment of the C ...
*
2015–present Polish constitutional crisis
Notes
References
*
External links
*
*
{{DEFAULTSORT:Constitutional Tribunal of the Republic of Poland
Politics of Poland
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populous ...
Judiciary of Poland
1982 establishments in Poland
Courts and tribunals established in 1982