Law of the Constitutional Tribunal of the Republic of Poland: concerning reform and problems of independence

Abstract

This article aims to analyze the development of the law of the Constitutional Tribunal of the Republic of Poland in terms of its constitutional and legislative status, as well as the problems associated with the constitutional crisis. Special attention is paid to legislative measures aimed at weakening the body of constitutional jurisdiction in Poland, in particular, a significant reduction in guarantees of the independence of the Constitutional Tribunal.

It was concluded that the law of December 22, 2015, the method of its adoption and entry into force demonstrates an attempt to remove it from the mechanisms of constitutional control (lack of time “distance” between official promulgation and entry into force). On the other hand, its content provides a set of means that encroach on the independence of the Tribunal, including: 1) a quorum of 13 out of 15 judges (there were 12 active judges); 2) the general condition for approval of decisions is at least two-thirds of votes; 3) minimum terms for the initiation of case consideration, which make the urgency of case consideration impossible; 4) giving the president and the minister of justice the right to initiate disciplinary proceedings against a judge; 5) participation of the Seimas in the termination of a judge’s The above means, in combination with the means provided by the law of November 19, 2015 (which terminated the powers of the chairman and deputy chairman of the Constitutional Tribunal), indicate the use of the legal instrument outside the rule of law.

Regarding the directions of limiting the guarantees of independence of the Constitutional Tribunal, increasing its politicization through the use of the instrument of the law. The nature of such means revealed the intention of the legislator to take them beyond the limits of constitutional control and to sharply limit and complicate the work of the Constitutional Tribunal. This approach shows a potential threat from the parliamentary majority to use a special law on the constitutional court to narrow the effectiveness of the institution of constitutional control.