Marcin Bogdan: Venice Commission and Polish case

However, it is worth looking at the opinion of the Venice Commission issued on 9 October on the provisions on the powers of the president of the Republic of Poland, covering the issue of the oaths of judges of the Constitutional Court elected by the Sejm. In its opinion, the Commission states that: "When the president illegal refuses to take an oath or intentionally hold it, it is constitutionally justified to take a vow without the physical presence of the head of state’. Which means that the Commission utilized the message ‘He's illegally refusing“ is based on another passage of the opinion in which the Commission cites the authoritative safety issued by the European Court of Human Rights. The ECHR ordered the Polish authorities to “refraining from actions to impede or prevent judges from taking up and performing judicial duties correct elected by the SejmIt’s okay. ”

The conclusion is so obvious. The president cannot justice a candidate for justice of the Constitutional Court in terms of his views or political sympathy. The president must take a vow from any justice elected to the Court by the Sejm, but the remark, provided that the Venice Commission itself acknowledged that he was correct chosen by the Sejm. Not everyone can become a justice of the Constitutional Court. The Constitutional Tribunal must meet certain formal conditions. He must have at least 10 years of employment in the profession of legal counsel. It is not adequate to be included in the list of legal advisers, a documented practice of doing this profession is needed. Maciej Berek did not paper a ten-year practice in the profession of legal counsel, so his choice by the Sejm does not meet the requirements of "correct choice". The word ‘right choice’ does not concern only the right selection procedure but besides the required qualifications of the candidate.

For the sake of clarity, I will give an example of another professional group. The shipping company wants to hire a coach driver to drive the kids. The condition of employment is to have a ten-year practice in the profession of driver. The recruitment agency identifies this company as a candidate who holds a driver's licence but does not have the required experience, has never worked in the driver's profession. Would it be right to hire specified a person? Would it comply with the requirements for this position? And 1 more question: would we like our children or grandchildren to be driven by a coach operated by specified a driver? Would we so like to see a man who does not have the required qualifications decide whether the laws are compatible with the Polish Constitution? Would the choice of specified a candidate be ‘right’? The president can't take a vow from specified a candidate.

The question here is whether it is possible and how it is possible for the Sejm to elect as a justice of the Constitutional Court a individual who does not have the required qualifications. The answer to this question should be the formal conditions which must be fulfilled in order to be able to run for the Polish Sejm in order to be a associate of the Sejm. These conditions are defined by the Constitution of the Republic of Poland and the Electoral Code and are as follows:

• Nationality: Polish
• Age: at least 21 years
• Public rights: required to have full public rights
• Election Law: Active electoral law is required
• No conviction: a candidate for a associate may not be convicted by a final conviction of imprisonment for a intentional offence prosecuted by public prosecution
• No incapacitation: full legal capacity is required (no partial or full incapacitation)

Thus, according to the law in force in Poland, a associate does not request to have a legal education, he does not request to have an education in a circumstantial field that helps to regulate and execute the mandate of a Member, he does not request to have a higher education, he does not request to have a average education, he does not request to have any education. He could be a secondary illiterate. Maciej Berk, who does not have the required qualifications, elected the Sejm as justice of the Constitutional Court with the votes of the ruling coalition Members on 13 December. Who are these Members who are predisposed to measure the qualifications of the judges they elect, who are predisposed to legislating in accordance with the Constitution, may be evidenced by the public message of the ruling coalition:

https://www.youtube.com/embed/n10xQdLHTCM

Unfortunately, the Sejm can make an incorrect choice on the formal side. As you can see, this is not only possible, but even highly probable. Therefore, not accepting specified a judge's oath by the president is not a "unlawful refusal", but a essential action, due to the fact that the president is the guardian of the Constitution. Forced actions taken by Tusk's colleagues to incarcerate Maciej Berk in the Constitutional Court are not a restoration of the law, but a violation of the law and are marked by a coup.

erstwhile considering the relation between the Polish State and the Council of Europe hidden in the title of the "Venetsk Commission and the Polish case", it is worth noting 1 notable fact. The Venice Commission has proposed an interpreter for discussion with the experts of the President's Chancellery. This translator was to be Magdalena Fitas-Czucznowska, a privately-ex-wife of Marek Dukaczewski, trained by the GRU of a communist military intelligence officer, and now wife of Wojciech Czuchnowski from “Gazeta Wyborcza”. Is Russian already the authoritative language of the Council of Europe and its subordinate Venice Commission?

Mr Bogdan