One of the biggest challenges facing the fresh parliament and government is the repair of justice. Infringements of the regulation of law over the last 8 years have been established not only by the Court of Human Rights in Strasbourg but above all by the Court of Justice in Luxembourg.
However, doubts arise as to what it would look like to reverse this process, where to start. If you take neo-KRS on first fire, you anticipate both the President's veto and neo-TK intervention. An effort to circumvent their resolution alternatively of the bill would have given little, since there is no request for a law-abiding fresh KRS, and there is no possible of an effective resolution. More broadly, shortcuts, acting in haste and point, cannot be repaired. On the contrary, that can only make him worse.
In order to reconstruct the regulation of law, a full package of laws passed simultaneously, covering the Constitutional Court, the National Judicial Council, the ultimate Court, the strategy of common courts and the prosecution are necessary.
It is alternatively hard to anticipate any of them not to be vetoed by the President. This, however, should not discourage anyone or justify idleness or taking fragmentary action doomed to failure. The essential analysis and consultation requires careful and insight, and that is time. So the problem is not that laws restoring the regulation of law in the judiciary will gotta wait for the signature of the next president, but that the imagination of a number of key elements remains incomplete. There is besides a deficiency of knowing of the request for complementary reforms so that justice can work smoothly.
First the Court
The first step should be not neo-KRS, but neo-TK. Following a series of decisions by the European courts, it is clear that the alleged doubles were not entitled to sit in the TK and the decisions issued with them are non-existent. But what about the another members of this body?
As most experts accept, as their choice was made according to a constitutional procedure, it was made correctly. Not all, however, share that view. Piotr Cardas and Maciej Gutowski have late noted that erstwhile members of the neo-TK were appointed they were not afraid about substantive or deontological-ethical choices, which violated Article 194(1) of the Polish Constitution. In support of the same request, another argument should be added. In its December 2021 Euro Box Promotion ruling, the EU Court of Justice stated that “the decisions of a constitutional court are binding on the general courts, provided that national law guarantees the independency of that constitutional court in peculiar with respect to the legislative and executive authority required by those provisions and provisions. On the another hand, where national law does not warrant this independence, those provisions and provisions of Union law shall prevent specified national government or practice, since specified a constitutional court is incapable to supply effective judicial protection as required by the second subparagraph of Article 19(1) TEU.’
Like the selection of active PO activists or another organization in opposition until late would exclude the anticipation of accepting that as judges they would not be subject to pressure, nor would they receive guidance from the office of their party, so the associations of a large part of the neo-TK members from the Law and Justices are besides obvious. EU law does not let another courts – and necessarily all another authorities of the state – to take into account any of their decisions. On the another hand, recognising that their rulings are contrary to EU law, but that vocations themselves may be in line with it, would be completely irrational, since it was done in a way that did not warrant the judicial independency of the individual. Thus, the conflict with EU law was already at the time, not only at the time of judgment.
According to the EU's rules of explanation of national law in accordance with EU law, the constitutional principles of the democratic regulation of law (Article 2 of the Constitution of the Republic of Poland) and legalism (Article 7) should besides be understood in accordance with the explanation of Article 19 TEU of the Euro Box Promotion case. This in turn justifies the conclusion that all elections of neo-TK members besides violated Articles 2 and 7 of the Constitution of the Republic of Poland interpreted in accordance with EU law.
There are many consequences. All future decisions of this body – which will most likely effort to halt the PiS from acting uncomfortable with the fresh Sejm and the government – will stay against the law and thus non-existent. This besides applies to each of the earlier judgments, specified as the October 2020 abortion. People who sit in the neo-TK must not be allowed to rest.
Three cases to settle
Three, in turn, are peculiarly worthy of attention from the consequences of a legal regulation.
Firstly, it is essential that the CCC – which must be reactivated according to standards that exclude doubts about the independency of its members – all cases in which non-existent rulings have previously been issued since their proceedings have never effectively ended.
Secondly, in order to increase the number of proceedings concluded by the reactivated TK by decommitment and thus improve its judicial capacity, the legislator should carry out a detailed analysis of all neo-TK decisions leading to the failure of power of existing legal standards as well as interpretative or legislative decisions. Without this, the nullity of the neo-TK judgments would lead to the restitution of the provisions deemed unconstitutional by him, even if, in fact, there are crucial legal reasons for being unconstitutional. Nor could there be the effect of sound explanation decisions or of a constitutionally legitimate work for the legislator to comply. The introduction of a statutory derogation of the truly flawed provisions which the neo-TK has ruled non-constitutional and another substantively justified legislative corrections signaled by the neo-TK would destruct this problem.
Thirdly, the validity of judgments and administrative decisions in individual cases arising from proceedings brought by a constitutional action or a legal question of a court should be guaranteed by law. This last solution, proposed a small over a year ago by a squad of experts from the Batory Foundation, would be justified by the rule of the trust of the citizen in the state and the rights they provide.
Compliance with the Constitution of the Republic of Poland which prejudges this government would then be verified by a decently appointed TK and compliance with EU law by the TEU. It would besides gotta change the organisation of the TK – and in this respect a very good starting point is the task of the Batory Foundation's squad of experts. It is besides crucial that it introduces higher standards of impartiality and independency of the judges of the Constitutional Tribunal than before the "good change", which in turn requires more than just a simple majority of votes in the Sejm to be elected for these positions.
The author is prof. of Legal Sciences, prof. of the Centre for investigation of Legal and economical Issues of Electronic Communications and Vice-Dean of the Faculty of Law, Administration and Economics of the University of Wrocław.
