The response of the Polish government exposes the manipulative and biased position of the Venice Commission
Prof. Kamil Zaradkiewicz was right on the mark when he said that Prof. Andrzej Rzeplinski regarded the Venice Commission as the last remaining lifeline for the Constitutional Tribunal under his leadership.
This is confirmed by the position of the Venice Commission announced on 14 October 2016, but in particular it is elucidated in the response of the Polish government to the draft position. I was able to get a copy of this response from the Venice Commission (in English, as it was submitted in this language). In its light, it appears to be no coincidence that the President of the Constitutional Tribunal could count on the assistance of the Venice Commission. Its representatives dispatched to Warsaw treated the opinion of President Rzeplinski and his supporters in the Constitutional Tribunal as the golden truth. And this would turn out to be only half of the problem.
Furthermore, its couriers from Venice would also regard as the golden truth the protests to the Constitutional Tribunal made by the opposition parties. The position of the Venice Commission regarding the Constitutional Tribunal legislation not only repeats the mistakes of the opinion published in March 2016, it also lacks any form of independence. In this sense, it is no way an objective voice, neither does it constitute any form of mediation. It clearly takes sides, something which the Polish government accused the Commission of in its comments about the proposal of the position on 30 September 2016.
Based on the position represented by Beata Szydlo’s government regarding the position of the Venice Commission, it can be concluded that this body is trying to exert pressure on the Polish leadership, so that it accepts all of the unlawful activities of the Tribunal, those made in the past as well as those planned for the future, in particular those regarding how the president of the Constitutional Tribunal is selected.
It is not without significance that the opinion of the Venice Commission goes far beyond the scope specified in the initial request, which formed the basis of its actions. The Commission has accepted as unquestionable truth, not requiring any evidence, the belief that the Constitutional Tribunal is the final arbiter in the Polish system, as a result of which it did not even check what the real situation on the ground actually looks like. And it would have been enough to read the Polish constitution, in order to realize that the Constitutional Tribunal is not the only decision-making organ with regards to constitutional matters.
Art. 10 Paragraph. 2 of the Constitution states that judicial power is exercised in Poland by courts and tribunals, but the Constitutional Tribunal is not alone in this role because there is also the State Tribunal. Ignoring the State Tribunal with regards to constitutional issues violates the standards that the Venice Commission draws upon, that is independence of the judiciary and the division of powers in constitutional matters between the Constitutional Court and the Court of State.
The Venice Commission is completely ignoring the fact that the Polish constitution does not recognize the Constitutional Tribunal as a “total” and sole body deciding on the constitutionality of all forms of actions by public authorities. The Polish government has pointed out to the Venice Commission that, even in matters concerning the powers of hierarchical control compatibility, the Constitutional Tribunal may not examine all legal acts. This applies, for example, to local law (in this case in terms of abstract control). The Venice Commission also completely ignores other bodies protecting the constitution, such as the President of the Republic of Poland and State Tribunal.
And, after all, the State Tribunal rules even in matters regarding the violation of the constitution or laws with multiple functions. The Venice Commission is not justified in any way when it states that the Constitutional Tribunal has the power – and that exclusively – to assess the government in matters of law enforcement.
The position of the Venice Commission assumes that the standard of constitutional judiciary in Poland is designated by an authority not having any basis for treaties binding the Polish state, whilst the systemic position of the Constitutional Court is set out in the constitution. What is embarrassing for the Commission is the fact that it does not have its own opinion, although it claims to have one. Instead, it merely repeats the ideas voiced by the President of the Constitutional Tribunal, Andrzej Rzeplinski, which have no basis in the current law on the Tribunal.
This is even more so the case given that the Venice Commission itself admits that there is no single standard when it comes to electing the president of a constitutional court. For example, the president of the Federal Constitutional Tribunal in Germany is nominated alternately by the Bundestag and Bundesrat, in Austria the president of the Federal Constitutional Tribunal is nominated by the president on the initiative of the government whilst in France the head of Constitutional Council is chosen by the president.
The position of the Venice Commission on this issue lies exclusively in the support of the political opposition in Poland. It also means that the Commission does not implement the standards resulting from the independence of the judiciary. The idea that the candidate for the president of the Constitutional Tribunal must be an individual who has the most support among the other judges is both unlawful and has no basis within the constitutional of the Republic of Poland.
It is also unlawful to bypass the president of the Republic of Poland in the process of selecting the president of the Constitutional Tribunal. The president of the Republic is in no way linked to the fact that the candidate for the president of the Constitutional Tribunal’s General Assembly received a certain number of votes.
The claim by the Commission that the request made by the judges to make rulings in their full composition could lead to the blocking and politicization of rulings made by the Constitutional Tribunal has no legal basis as Art. 195 Para. 3 of the constitution states that Constitutional Tribunal judges must be apolitical. There is no basis to assume that ruling on cases in the full composition of the court would lead to the blocking or politicization of the rulings made by the Constitutional Tribunal.
Taking on cases with a full composition of the court is a standard in constitutional judiciary in many European countries. It is therefore logical: the higher number of people that take part in making legal rulings, the smaller the chance of influencing the final decision through a personal bias. Making rulings by means of a full composition of the court is the best way of realizing and securing the intentions of the creators of the law written into the constitution of the Republic of Poland, as it was their will for the Constitutional Tribunal’s decision-making to be apolitical in nature.
The Venice Commission is critical of the Polish government, so when the government proved violations of the law by the Constitutional Court, these claims were rejected without any analysis being undertaken. The Commission’s position is also one-sided when it comes to the participation of the prosecutor general in the dealings of the Constitutional Tribunal, because it not only duplicates the assessment of the Tribunal, but it also takes into account the subjective assessment of the current political situation.
The Venice Commission repeats false information about the nature and effects of the judgments of the Constitutional Tribunal regarding the selection of judges of the Tribunal. The committee is groundless in its acceptance that the judges appointed in December 2015 were elected unconstitutionally, which the Constitutional Tribunal itself ruled.
Meanwhile, the Constitutional Tribunal has no jurisdiction to assess the creative function of the Sejm, as confirmed by the Tribunal itself when it discontinued proceedings on the resolutions relating to the selection of Tribunal’s judges – citing a lack of competence. The ruling of 3 December 2015, concerned only the statutory assessment of conformity with the Constitution, and this norm referred to the deadline for applications containing the names of candidates for judges on the Constitutional Tribunal.
The primary accusation made by the Polish government is that the Commission went beyond its mandate when checking whether the legislation on the Constitutional Tribunal has an adverse affect on the proper functioning of Tribunal. Instead of doing this, the Commission made an assessment on the organs implementing law in Poland. The Commission's objections concerning individual statutory solutions are a carbon copy of what is included in the proposals concerning the constitutional control of the law of 22 July 2016 on the Constitutional Tribunal, submitted by members of parliament belonging to the opposition.
The Commission did not find other faults, which indicates its complete lack of independence. This is also the case with regards to the jurisdiction of the Polish president in nominating the president of the Constitutional Tribunal, when the Commission repeated the groundless accusation made by opposition parliamentarians included in their demands sent to the Tribunal.
Moreover, the Commission assessed the activities of the prime minister in relation to the publishing of the Constitutional Tribunal’s rulings, although this clearly surpasses the scope of its mandate. The Commission groundlessly stated that: “by accepting the legislation of 22 July 2016 (as well as corrections from December 2015) the Polish parliament granted itself permission to revise the constitution, which it does not have in the ordinary course of the legislative, without the required majority necessary to amend the constitution." Meanwhile, it is actually the constitution of the Republic of Poland in its Art. 197 that gives the legislature the right to create such regulations.
According to escheat law, the Commission examines the legality of the government’s actions and does not deal with the Constitutional Tribunal’s proceedings and ignores the conclusions of the dissenting judges of the Tribunal. The Commission is manipulating facts when it suggests that the Tribunal ruled in December 2015 about the legality of the selection of certain judges, and thus it makes the case that there is an obligation to accept their vows.
Many of the complaints made by the Venice Commission are based on the assumption that the organs of the Polish state are operating in bad faith. As a result, almost all regulations, regardless of their subject matter and which country they take place in, are subject to criticism, which means that their effectiveness is put to question.
The Polish government has accused the Venice Commission that it is not in the position to produce an objective opinion that represents the appropriate level of professionalism. The Commission was not able to do this because it was not acting objectively, honestly and apolitically. In fact, the Venice Commission supported the opposition in Poland and legitimized the unlawful actions of the president of the Constitutional Tribunal. As a result, the Polish government doubts the sense in continuing co-operation with the Venice Commission.