The Polish Constitutional Tribunal crisis has been an ongoing political conflict in Poland starting in the second half of 2015 over the appointment of five of the 15 judges of the Constitutional Tribunal.
In Poland, constitutional judges must be elected by the Lower House, and must take an oath of office before the President. In 2015, the governing Civic Platform (Platforma Obywatelska, PO) party lost both the presidential election and the parliament (Sejm) majority to the Law and Justice party (Prawo i Sprawiedliwość, PiS), which won an unprecedented absolute majority of seats. After the new (eighth) Sejm was seated on 12 November 2015 and the new president of Poland, Andrzej Duda, assumed office on 6 August 2015, the judicial branch would be left as the only branch of the government of Poland not under the control of PiS provided that the due seat replacements were made in advance.
The terms of three constitutional court judges were due to end after the 25 October election but before the new (eighth) Sejm was seated on 12 November 2015. In advance of the 12 November seating of the eighth Sejm, PO attempted to elect five judges to the Constitutional Tribunal, including two whose terms would begin in the month after 12 November, but the new President Duda refused to let any of them take their oaths of office. After PiS took power, they nominated a different set of five judges who were immediately sworn in. Three were nominated on 2 December 2015 and two others were nominated the following week. Of the five appointments made by PO, the Constitutional Tribunal itself accepted the first three appointments and invalidated the last two. Consequently, of the five appointments made by PiS after the election, the Tribunal accepted the last two PiS appointments and invalidated the first three. As none of the five PO appointments were sworn in by the president, this ruling was disputed by the new PiS government, which went on to change the statutes regulating the Court in order to ensure that all five of its nominees sit, thereby furthering its influence on the court – the only remaining branch of government not under PiS control.
The President of the Constitutional Tribunal dictated that the new five judges should not hear cases until the situation was settled; in order to combat this, PiS passed a series of laws through the Sejm and Senate which compelled the Constitutional Tribunal to allow the judges to hear new cases. The new legislation was signed into law on 28 December 2015. In January 2016, the court ruled the five new judges elected by the 8th Sejm were legally appointed, but in March 2016 ruled the new legislation unconstitutional. The latter ruling was ignored by the Polish government, which considered the ruling "advisory". The executive and legislative branches' refusal to accept this ruling of the judicial branch thus caused a constitutional crisis. The crisis provoked outrage in the European Union which began an investigation into Poland under Article 7 of the Treaty on European Union, describing the situation as threatening the rule-of-law.
The appointments and amendments caused domestic protests and counter-protests in December 2015 and January 2016; one of the most significant outcomes was the creation of the Committee for the Defence of Democracy protest movement.
The law changes were criticized by the European Commission as threatening the "rule of law" and the human rights of Polish citizens. , the crisis had, according to the European Commission, extended to include "13 laws affecting the entire structure of the justice system in Poland". These changes to the court system precipitated a wider rule-of-law crisis, causing disagreement with the EU and including rollbacks to abortion in Poland.
The 2023 Polish parliamentary election, saw Civic Platform (Platforma Obywatelska, PO) oust PiS from government and come back to power with the help of its coalition partners, starting a reversal of the crisis and conflict with the EU, with the newly found majority in the Sejm a resolution confirming the illegal status of some Constitutional Tribunal justices, and the fact that the President of the Constitutional Tribunal was never properly appointed, was pushed through. Rendering all of the court's rulings since the start of the constitutional crisis null, and allowing state organs to ignore them. This move was met with outcry and accusations of unconstitutionality by the largest opposition party Law and Justice, despite the dubious constitutionality of its own actions in causing the original crisis.
The European Commission cheered the new government's work, unlocking some funds from the Recovery Package that were blocked because of the old government's attack on the rule of law and suggested that the Article 7 procedure against Poland could be lifted one day.
Events +List of TC judges by seniority in June 2015, at the onset of the crisisNo Judge Nomination date End of term1 Maria Gintowt-Jankowicz 6 November 2006 6 November 20152 Wojciech Hermeliński 6 November 2006 6 November 20153 Marek Kotlinowski 6 November 2006 6 November 20154 Zbigniew Cieślak 2 December 2006 2 December 20155 Teresa Liszcz 8 December 2006 8 December 20156 Mirosław Granat 27 April 2007 27 April 20167 Andrzej Rzepliński (President) 19 December 2007 19 December 20168 Stanisław Biernat (vice-president) 26 June 2008 26 June 20179 Sławomira Wronkowska-Jaśkiewicz 6 May 2010 6 May 201910 Stanisław Rymar 3 December 2010 3 December 201911 Piotr Tuleja 3 December 2010 3 December 201912 Marek Zubik 3 December 2010 3 December 201913 Małgorzata Pyziak-Szafnicka 5 January 2011 5 January 202014 Andrzej Wróbel 29 May 2011 29 May 202015 Leon Kieres 23 July 2012 23 July 2021
Partisan struggle over Court composition The Polish presidential election, held in May 2015, gave candidate Andrzej Duda, backed by Law and Justice (PiS), a surprise victory over incumbent President Bronisław Komorowski, backed by the Civic Platform (PO), which was the then-government's major party.
President-elect Duda was set to take office in August 2015. Coincidentally, a parliamentary election was also due to be held in October. Opinion polls were now showing that PO was likely to lose to PiS., meaning PO could lose both government and Presidency to PiS, within five months.
Judges of the Constitutional Tribunal are nominated by the Lower House, meaning that the partisan influence of the judicial branch was also in play. At the start of the events, 9 of the 15 members had been nominated by PO and its allies during their two terms in government (Tusk Cabinet), while the remaining 6 had been nominated in 2006 and 2007 by PiS and its allies (Kaczyński Cabinet), and they were the most senior: five of them were due to be replaced in late 2015 (see table).
The Constitution mandates that judges are "chosen individually by the Sejm for a term of office of 9 years" (Article 194), but it does not specify what happens when a seat is vacant when the Sejm is itself in recess (during the campaign and before the oaths of office)
The 7th Sejm's session lasted from 8 November 2011 to 11 November 2015, and its last meeting was held on 8–9 October 2015. The election of the 8th Sejm was held on 25 October, and the oaths of office were taken starting 12 November.
First contended nominations by the Civic Platform On 25 June 2015, the PO government and parliament adopted a new law regarding the constitutional court. Later, the Constitutional Tribunal found this law to be partly unconstitutional. It was signed by President Bronisław Komorowski on 21 July 2015 (about one month before end of his presidency).
On 8 October 2015, 17 days before the elections, the outgoing Polish Parliament's last meeting was opened. The Sejm elected five new judges. Three of them replaced judges whose nine-year terms were to expire on 6 November (12 days after the elections, but 5 days before the end of the legislature), while two were to replace judges whose terms were due to expire in December.
The judges were chosen on the basis of a law passed earlier in the summer, by the PO-controlled Sejm.
If the judges appointed by PO had taken their seats on the Tribunal, the result would have been that 14 out of 15 Constitutional Tribunal judges would have been selected by the Civic Platform. However, the new President of Poland, Andrzej Duda, refused to swear in these judges stating that they had been chosen "in contravention of democratic principles".
Second contended nominations by Law and Justice On 25 October, the Law and Justice (Prawo i Sprawiedliwość, PiS) party won an unprecedented absolute majority of seats in the Polish parliamentary election. On 16 November, new Prime Minister Beata Szydło and her Cabinet took office.
On 19 November 2015 the newly-seating 8th Sejm passed an amendment to the existing law, and mandated the appointment of five new judges, set term limits for the president and vice president of the court, and stipulated term limits for two sitting judges. The president, Andrzej Duda, signed the amendment on 20 November, but the law was challenged at the Constitutional Tribunal.
On 2 December, the Sejm elected five new judges to the 15-member tribunal, claiming it would prevent the previously appointed five from taking office; these were sworn into office by President Duda in a closed ceremony held after midnight. PiS delegates argued that the previous appointments made by PO contradicted existing law and the Polish constitution.
On 3 December, the Constitutional Court ruled that out of the five judges elected by PO, the election of the first three judges was valid, while the appointment of the other two breached the law. But President Duda refused to swear any into office. According to his spokesman, Duda refused to swear these three judges into office, because the number of Constitutional Court judges would then be unconstitutional.
On 4 December, Law and Justice leader Jarosław Kaczyński, who had called the Constitutional Court "the bastion of everything in Poland that is bad" questioned the legitimacy of the Court's decision, because it was supposedly made by fewer judges than required by law. Kaczyński announced changes in the law regarding the Constitutional Court, but gave no details.
On 11 January 2016, the Constitutional Court rejected a complaint by Civic Platform questioning the appointment of the five new judges by the new Parliament. Three of the Court's judges dissented, including Andrzej Rzepliński.
Inclusion of the new judges
Early in December, the Tribunal's President Andrzej Rzepliński, who had been nominated by PO, said the 5 judges nominated by PiS were given offices in the building, but would not rule until the issue was "cleared up". Because the Polish law set a participatory threshold of 9 judges, this meant that they were de facto excluded.
The Constitution leaves the door open for the specific organization of the Tribunal: "The organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute." (Article 197)
On 22 December 2015, the Sejm passed a law which re-organized the Constitutional Tribunal:
In order to enforce the inclusion of the newly elected judges, the new law introduced the mandatory participation of at least 13, instead of 9, of the 15 judges. In order to ensure that the new judges would not be cornered into permanent minority, the new law also set a two-thirds majority. Article 190 (5) of the Polish constitution requires the "majority" of votes. The new law specifies it to mean a qualified majority. For fear that the new laws passed by the PiS majority would be blocked for years by the Tribunal, the new law binds it to handle the cases according to the date of receipt. Pending constitutional proceedings had previously to wait for six months, or under exceptional circumstances for three months.