“The (Polish) parliament and government continue to challenge (the) position (of the constitutional tribunal) as the final arbiter of constitutional issues and attribute this authority to themselves”, the European Commission for Democracy through Law, better known as the Venice Commission, states in an opinion published on Friday 14 October.
This commission, which is made up of independent constitutional law experts, was set up in 1990 as a Council of Europe (CoE) consultative body. It has already been consulted by Poland on the highly controversial Act on the Constitutional Tribunal, adopted in December 2015 by the Polish Parliament, dominated by the conservatives of the ruling Law and Justice (PiS) party. It delivered a critical initial opinion in March of this year (see EUROPE 11510) and it was precisely to see if the amendments adopted in July had heeded the opinion that CoE Secretary General Thorbjørn Jagland turned again to the commission.
Some improvements have been made, the Venice Commission finds, including the reduction of the majority vote for a judgment from two-thirds to a simple majority. Taken along with other provisions, the requirement for a two thirds majority would have slowed the work of the tribunal, the March opinion said. A further improvement is the absence of provisions on the initiation of disciplinary proceedings against judges by the president of Poland or parliament (see EUROPE 11624 and 11623).
These and other improvements are, however, too limited in scope, in the view of the commission, 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”. Among such provisions its highlights: - postponing a case for up to six months upon request by four judges, which could be abused to delay sensitive cases; - allowing the prosecutor general to block a hearing by his or her absence, which could both delay and politicise the functioning of the tribunal; - suspending all institutional cases for six months, followed by re-registration, which would delay the work of the tribunal.
The Venice Commission also criticises “a system of proposing candidates for the presidency 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”.
The European Commission and the Polish authorities are engaged in dialogue to enhance the rule of law in Poland, focusing largely on the reform of the Polish constitutional tribunal (see EUROPE 11602). (Original version in French by Véronique Leblanc)