Questioning the Constitutional Tribunal's ability to "adjudicate in accordance with the law", Poland's Supreme Administrative Court pointed out that the "presence of improperly appointed judges in its composition causes the entire Constitutional Tribunal to be infected with illegality".
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Formally, the ruling handed down by a three-member panel of the Supreme Administrative Court (SAC) on November 16 concerned an entirely different case. But while adjudicating on the inaction of the Chancellery of the Sejm [ed. the lower house of the Polish parliament], the panel also raised the issue of the Constitutional Tribunal.

"The presence of improperly appointed judges in the composition of the Constitutional Tribunal causes the entire Polish Constitutional Tribunal to be, as it were, >>infected<< with illegality, and thus to lose, in a material sense, the ability to adjudicate in accordance with the law" – we read in the Supreme Administrative Court’s justification.

„We cannot rely on a wild guess"

Poland’s Constitutional Tribunal has been captured by the ruling Law and Justice party (PiS), which illegally staffed the institution with its political appointees. For this reason, both Polish and international courts - including Poland’s Supreme Court and the European Court of Human Rights- consider the Tribunal’s decisions legally invalid.

Now for the first time, the Supreme Administrative Court of Poland also issued an opinion on the matter. The opportunity was provided by the Chancellery of the Sejm. It moved to suspend the proceedings in which the SAC was dealing with its failure to provide lists of support for candidates for the new National Council of the Judiciary. It cited the fact that the legislation allowing the release of these lists is also being examined by the Constitutional Tribunal.

In this case, the SAC could have suspended the proceedings and waited for what Constitutional Tribunal would say. But the adjudicating panel (judges Olga Żurawska-Matusiak, Przemysław Szustakiewicz and Sławomir Pauter) decided not to do so. "For it should be pointed out that there were persons in the Constitutional Tribunal who were appointed in violation of the Polish Constitution" – the judges stated.

These illegally appointed individuals are Mariusz Muszyński, Justyn Piskorski and Jarosław Wyrembak. They took the duly filled seats of three judges from whom President Andrzej Duda refused to take an oath of office. The President’s decision allowed PiS to staff the Tribunal with non-judges. These so-called "judge-doubles" later helped Julia Przyłębska take control of the Constitutional Tribunal. 

"They took the positions of duly appointed judges" –  the SCA stressed. In doing so, it noted that the illegal character of the judge-doubles follows from the Constitutional Tribunal’s December 3, 2015 ruling, as well as last year's Strasbourg Court ruling. Therefore, the SCA decided that it could not wait for the Constitutional Tribunal to rule on the release of support lists. 

"There is a high degree of probability that there will be at least one of the so-called judge-doubles on the panel. In such a situation, it is too risky to suspend the proceedings and rely on a ‘wild guess' that perhaps the panel will not include illegally-appointed people"- the SAC stated. 

„The Constitutional Tribunal is lacking efficiency"

As a side note, the Supreme Administrative Court also noted that it has an obligation to decide the case as quickly as possible. 

"Meanwhile, it is a matter of common sense, also confirmed in the Constitutional Tribunal’s own annual reports, that the Polish Constitutional Tribunal is working extremely slowly, and some applications are waiting more than five years for a ruling" – the panel added. 

The case decided by the SAC had already been pending before administrative courts for four years. The request for public information was submitted by a person with the initials K.G. to the Chancellery of the Sejm in January 2018.

"In a situation where the Constitutional Tribunal is lacking efficiency, the suspension of the proceedings will result in an even longer wait for the request to be resolved" – the SAC stated, adding that "this may, in fact, lead to a situation in which, even if the request is fulfilled - the disclosed information will become worthless".

***

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