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Ref. DC 162(2016)

Venice Commission: New Polish law on constitutional tribunal gives excessive power to parliament and the executive over the judiciary

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Venice, 14.10.2016 – An opinion adopted today by the Council of Europe’s constitutional law experts, the Venice Commission, found that Poland’s new Act on the Constitutional Tribunal does not meet two essential standards of balance of power in government: the independence of the judiciary and the position of the constitutional court as the final arbiter in constitutional issues.

The act contains some improvements since the Venice Commission published an initial opinion earlier this year, including the reduction of the majority vote for a judgment from two-thirds to a simple majority, and the absence of provisions on the initiation of disciplinary proceedings against judges by the president of Poland and the minister of justice.

However, these and other improvements are too limited in scope, because other provisions of the adopted act would considerably delay and obstruct the work of the tribunal, possibly make its work ineffective, as well as undermine its independence by exercising excessive legislative and executive control over its functioning.

Examples of such provisions include the following: 

·         postponing a case for up to six months upon request by four judges, which lacks justification and could easily be abused to delay sensitive cases;

·         allowing the prosecutor general to block a hearing by his or her absence, which could both delay and politicize the functioning of the tribunal;

·         suspending all institutional cases for six months, followed by re-registration, which would delay the work of the tribunal on important pending cases, and the requirement that other cases be terminated within one year.

The opinion criticizes a system of proposing candidates for the president of the tribunal to the Polish president, which could lead to a situation that a candidate is appointed who does not enjoy the support of the judges

Furthermore, without any constitutional or legal basis, the chancellery of the prime minister has purported to control the validity of judgments of the tribunal by refusing to publish its judgments. The prime minister’s refusal to publish judgments had not even been communicated with an explanation to the Tribunal itself, which instead heard of the news in the media.

Individually and cumulatively, according to the Venice Commission, the shortcomings show that instead of unblocking the precarious situation of the constitutional tribunal, the parliament and government continue to challenge its position as the final arbiter of constitutional issues and attribute this authority to themselves.

The adopted opinion should be available later today, and can be sent to media upon request

Contact : Panos Kakaviatos, Spokesperson/Press officer, Tel. +33 6 98 37 64 04