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The Sejm’s resolutions on the invalidity of the Sejm’s resolutions of 8 October 2015; the Sejm’s resolutions of 2 December 2015 on the new election of judges to the Constitutional Tribunal U 8/15

The Sejm’s resolutions on the invalidity of the Sejm’s resolutions of 8 October 2015; the Sejm’s resolutions of 2 December 2015 on the new election of judges to the Constitutional Tribunal

By its decision of 7 January 2016, ref. no. U 8/15, the Constitutional Tribunal discontinued proceedings with regard to the application submitted by a group of Sejm Deputies to determine the conformity of:

1) five resolutions of 25 November 2015 adopted by the Sejm of the Republic of Poland to determine the invalidity of the Sejm’s resolutions of 8 October 2015 on the election of judges to the Constitutional Tribunal (hereinafter: the resolutions on the invalidity of the previous judicial election) to Article 2, Article 7, Article 10, Article 45(1), Article 180(1) and (2) of the Constitution as well as to Article 36 of the Constitutional Tribunal Act of 25 June 2015 (hereinafter: the Constitutional Tribunal Act);

2) five resolutions of 2 December 2015 adopted by the Sejm of the Republic of Poland to elect judges to the Constitutional Tribunal (hereinafter: the resolutions on the new election of judges) to Article 2, Article 7, Article 10, Article 194(1) and Article 195(1) of the Constitution as well as to Article 17(1) of the Constitutional Tribunal Act.

In accordance with Article 104(1) of the Constitutional Tribunal Act and the established practice, the Tribunal’s decision in the present case was determined at a sitting in camera.

Due to the complexity of legal and political circumstances in which the Tribunal had to consider the present case, the Tribunal deemed it necessary to clarify the main reasons for its decision on the discontinuance of the proceedings.

When taking a stance on the case, the Sejm and the Public Prosecutor-General requested the Tribunal to discontinue the proceedings in their entirety, on the grounds that the issuing of a ruling was inadmissible. By contrast, the Ombudsman requested the Tribunal to determine that the resolutions on the new election of judges are inconsistent with the Constitution and the Constitutional Tribunal Act, as well as to discontinue the proceedings with regard to the resolutions on the invalidity of the previous judicial election, as the latter resolutions present merely a political stance of the Sejm and contain a non-binding call for the President to take certain action. By contrast, the Polish Bar Council, acting as an amicus curiae, requested the Tribunal to discontinue the proceedings with regard to both types of resolutions, but not due to the fact that – as the Council put it in its written submission – “the present case concerns acts of applying the law (…), but on the grounds that the subject of the review within the meaning of Article 62 of the Constitutional Tribunal Act does not exist”.

The basic task of the Tribunal in this context was to provide an answer to the question whether the Tribunal could consider the received applications on their merits. The Tribunal replied in the negative.

When deciding about the discontinuance of the proceedings in the present case, the Constitutional Tribunal relied on the following findings.

1. Neither the resolutions on the invalidity of the previous judicial election nor the resolutions on the new election of judges are normative acts, and hence they do not fall within the scope of the Tribunal’s jurisdiction, and could not be subjected to a substantive review.

The following two criteria – where at least one of them is to be met – determine the classification of a certain act as a normative act: the formal criterion, in accordance with which normative acts are any acts which – regardless of their content – are categorised in the Constitution as the sources of law (e.g. statutes, or regulations); the substantive criterion, in accordance with which normative acts are any acts which – regardless of their type – comprise legal norms i.e. norms that, in principle, require their addressees, who display specific characteristics, to perform certain activities repetitively. Therefore, an act that may be reviewed by the Constitutional Tribunal, due to the said court’s scope of jurisdiction, is an act that meets the formal and/or substantive criterion. It should be added that, in practice, most frequently both criteria are met.

The said resolutions on the lack of validity of the previous judicial election – as it is stated in the Tribunal’s judgment of 3 December 2015, ref. no. K34/15 – are resolutions which partly display characteristics of a statement and a decision i.e. they are legally non-binding resolutions, as referred to in Article 69 of the Sejm’s Rules of Procedure. Maintaining the said stance, the Constitutional Tribunal deemed that they may not be regarded as normative acts.

The resolutions on the new election of judges to the Constitutional Tribunal were included by the Tribunal into the category of resolutions which are not normative, by means of which the Sejm would exercise its power to appoint and dismiss certain public officials. Despite the fact that the said resolutions are legally binding, they do not have the character of normative acts.

2. The resolutions on the invalidity of the previous judicial election – as we can read in the explanatory notes for the draft versions of the said resolutions – did not dismiss any judges of the Tribunal, since “due to the defectiveness of the election”, no judgeship at the Tribunal was taken.

Additionally, the resolutions under consideration – which was also stressed in the aforementioned explanatory notes – did not mean “the repeal, annulment or revocation” of the resolutions on the election of judges to the Tribunal, as “the determination of the invalidity of the resolutions is merely a declaration (evaluation) that they were adopted in breach of the provisions of the procedure”. The Sejm seems to assume that the resolutions of 8 October 2015 on the election of five judges to the Constitutional Tribunal were invalid from the very beginning.

The Constitutional Tribunal noted that, in the light of findings in the field of law, one may not rule out the invalidity of any conventional activity, including the activity of electing a judge to the Tribunal. In the case of conventional activities regulated by public law, their invalidity may be deemed only in the case of an obvious, indisputable and glaring infringement of the basic requirements for carrying out the activities; such activities are then considered to be non-existent.

The invalidity of conventional activities – where the said invalidity would be legally binding for others – may be determined only by a person or entity that has relevant competence within that scope. It is necessary for the provisions of law to clearly indicate an organ of public authority which has been authorised to determine the said invalidity, the procedure in accordance with which this is to take place, as well as requirements which it infringes, which would make it justifiable to declare the invalidity of the activities.

If one were to regard the resolutions on the invalidity of the previous judicial election as the legally binding determination of the invalidity of the resolutions on the election of judges to the Constitutional Tribunal, then the binding regulations would have to authorise the Sejm to adopt a resolution stating that the election of a public official was ineffective, which would mean that the resolution on the election of the official was invalid from the very beginning. There is no doubt that – de lege lata – we do not deal with the above-mentioned situation, as the provisions of law do not provide for a possibility of determining the invalidity of a resolution of the Sejm on the election of a judge of the Tribunal.

Indeed, although within the scope of substantive requirements for recognising the said election as non-existent, one may make reference to the findings of the doctrine of the theory of law, in accordance with which conventional activities regulated by public law are invalid if there were an obvious, indisputable and glaring infringement of the basic requirements for carrying out the activities, then undoubtedly no provision would authorise any organ of public authority to determine the invalidity of the election of a judge of the Tribunal as well as it does not indicate a procedure in which this would have to occur.

Thus, the resolutions on the invalidity of the previous judicial election may not be regarded as the legally binding determination of the invalidity of the election in which judges were elected to the Constitutional Tribunal on 8 October 2015.

Not being able to substantively determine the validity of the allegations presented in the application, and bearing in mind the systemic significance of issues addressed therein, the Constitutional Tribunal deemed that it was necessary to make several basic remarks.

If it were assumed that the election of five judges of the Tribunal, which was held on 8 October 2015 by the Sejm during its 7th term of office, was invalid, it may not be denied that, for the purpose of eliminating possible doubts, the succeeding Sejm had the right to adopt the resolutions on the invalidity of the said election (and the resolutions on the new election).

Although, in the context of the current legal system, the resolutions under discussion should be classified as legally non-binding, the ineffectiveness of the election of judges would constitute an ex lege consequence of a violation of the rule that constructs a relevant conventional activity, and this would not require confirmation in the form that is legally binding.

However, when analysing documents linked with the election of judges held on 8 October 2015, the Tribunal did not confirm that, in the course of the said election, the binding provisions of law were breached. Consequently, one may not regard the thesis that the said conventional activity was marred by an obvious, indisputable and glaring defect to be true, which would make it possible to treat the said activity as non-existent.

It may not be determined that the previous election was invalid from the very beginning by relying on the arguments raised in the public debate as regards the proposal of candidates by allegedly unauthorised persons or entities, or the alleged necessity to consider the principle of the discontinuance of the parliamentary work; all these arguments should be deemed completely inapt.

What is of particular significance here is the circumstance that the explanatory notes to the draft resolutions on the invalidity of the previous judicial election contain no indication as to what specific defects would cause the ineffectiveness of the election of 8 October 2015; they merely mention indeterminate irregularities related to the violation of the procedure.

Also, the Constitutional Tribunal indicated that the effectiveness of the resolutions on the new election – apart from the fulfilment of formal requirements for the adoption thereof – solely depended on the fact whether, on 8 October 2015, the judicial vacancies in the Tribunal were filled in a valid way as well as whether the legal basis for the said election was consistent with the Constitution, which was determined in the Tribunal’s final judgment of 3 December 2015, ref. no. K 34/15.