The Warsaw district court received a claim from Prof., who was elected to the Constitutional Tribunal in 2015. Krzysztof Ślebzak against the Constitutional Tribunal for payment of the remuneration of a retired judge – the Commissioner for Human Rights, who reported his participation in these proceedings, reported on Tuesday.
As the Ombudsman Marcin Wiącek emphasized in a letter addressed to the court, “the judicial mandate resulting from the election by the Sejm in 2015 is not undermined by the lack of his oath by the President of the Republic of Poland.”
The lack of taking the oath resulted in the factual impossibility of taking up office by the plaintiff, establishing an employment relationship and performing judicial activities. However, it did not deprive him of his constitutional judicial mandate, because the legal basis for this mandate was the resolution of the Sejm of October 8, 2015 – Wiącek pointed out, referring to Ślebzak's lawsuit.
The origin of the lawsuit, which was brought to the District Court for Warsaw-Śródmieście, dates back to events from a decade ago and the beginning of the dispute over the Constitutional Tribunal.
The beginning of the crisis can be dated to October 8, 2015, when the Sejm of the 7th term elected – primarily with the votes of the then PO-PSL coalition – five new judges of the Constitutional Tribunal: Roman Hauser, Andrzej Jakubecki, Bronisław Sitek, Andrzej Sokala and Krzysztof Ślebzak. They were to be the successors of three judges whose terms ended on November 6 and two judges whose terms ended in December of that year, i.e. during the next parliamentary term.
On November 25, 2015, the Sejm of the new, 8th term, in which PiS already had a majority, adopted resolutions stating that the election of Constitutional Tribunal judges of October 8 had no legal force. On December 2, the Sejm elected Julia Przyłębska, Piotr Pszczółkowski, Henryk Cioch, Lech Morawski and Mariusz Muszyński, nominated by PiS, as judges of the Constitutional Tribunal. The last three were successors of judges whose terms expired in November. These five judges were sworn in by then-President Andrzej Duda.
On December 3, 2015, the Constitutional Tribunal – at that time the president was Andrzej Rzepliński – found that the previous Sejm of the 7th term had elected two judges of the Constitutional Tribunal in a manner inconsistent with the constitution (instead of those whose terms ended in December); the election of the remaining three (replacing those whose terms ended in November) was consistent with it. Ślebzak was in the latter group. The Constitutional Tribunal also found that the president was obliged to “immediately” take the oath of office from each newly elected judge.
To opened the main axis of the dispute over the appointment of three judicial positions in the Constitutional Tribunal and the occupation of these positions by people described by the then opposition and the current ruling coalition, as well as some lawyers, as three “double judges” who were to occupy previously properly filled seats in the Constitutional Tribunal.
This problem also took on a cross-national dimension when, in May 2021, the European Court of Human Rights found that in the case of the Xero Flor company, Poland violated the provisions of the European Convention on Human Rights – the right to a fair trial and the right to a court established by law. The company sued the State Treasury. After unfavorable court judgments, the case was referred to the Constitutional Tribunal, which discontinued it, and this decision was signed by Judge Muszyński. The company brought an accusation before the ECtHR regarding the panel of judges that heard its case in the Constitutional Tribunal. The Strasbourg tribunal found, among other things, that the Constitutional Tribunal was ruled by a judge who did not have the right to do so and ruled that Poland should pay the company PLN 3,000. 418 euros in compensation.
However, according to Tuesday's announcement by the Ombudsman posted on the website of the Commissioner's Office, this year Ślebzak's lawsuit against the Constitutional Tribunal for payment of the remuneration of a retired judge was registered in the downtown district court. If Ślebzak took up the duties of a Constitutional Tribunal judge, his nine-year term would expire in 2024. However, as the Ombudsman reminded, “the judges elected on October 8, 2015 were not provided with the conditions to take an oath, nor were they allowed to perform judicial activities.”
Wiącek in his statement to the court He made it clear that he did not comment on the validity of Ślebzak's lawsuit. He emphasized, however, that Ślebzak's term of office began on November 7, 2015 – when a vacancy occurred in the judicial position to which he was elected by the Sejm. “From the point of view of the creation of the judicial mandate and the beginning of the term of office, the lack of the oath was irrelevant,” the Ombudsman noted.
“The judicial status of Krzysztof Ślebzak, resulting from the mandate entrusted by election by the Sejm, is not undermined either by the lack of his oath by the President of the Republic of Poland, or by the President of the Constitutional Tribunal's refusal to allow him to adjudicate. Since when we are dealing with a Constitutional Tribunal judge, it is the constitution, not ordinary legislation, that determines it,” the Ombudsman pointed out.
According to the Ombudsman, “the source of a judge's mandate, and therefore the basis for acquiring the status of a Constitutional Tribunal judge and starting a judge's term of office, is exclusively a resolution of the Sejm.” “The Constitution does not require a Constitutional Tribunal judge elected by the Sejm to take an oath before any body. This stage is provided for only by law and is a condition for taking office and establishing an official relationship,” added the Ombudsman.
Over the last decade, the multi-faceted conflict surrounding the Tribunal has involved numerous legal, political and administrative issues. Ultimately, it led to many lawyers and politicians questioning the judgments passed before the Constitutional Tribunal.
In a resolution adopted in March 2024, the Sejm stated that “taking into account, in the activities of a public authority, decisions of the Constitutional Tribunal issued in violation of the law may be considered a violation of the principle of legalism by these bodies.” Since the Sejm adopted that resolution, the Constitutional Tribunal's judgments have not been published in the Journal of Laws.
Currently, the Constitutional Tribunal has 10 judges for 15 planned judicial positions. So far, parliamentary clubs – apart from PiS – have consistently failed to propose candidates for Constitutional Tribunal judges. However, in December this year Another judge of the Constitutional Tribunal – Michał Warciński – is to end his term of office.
– However, we would like to start supplementing the Tribunal. Today we have this shell of a body, we have an incorrectly elected acting president of the Constitutional Tribunal, we finally have a body consisting of completely, extremely politicized people. That is, people who were active, active and very expressive politicians of a specific party were later elected to the Tribunal by a majority of votes of that party – said the head of the Ministry of Justice, Waldemar Żurek, recently.
President Bogdan Święczkowski recently assessed, on the occasion of the application to waive his immunity, that the Constitutional Tribunal – because it protects the constitution and the rule of law – has been embroiled in a political war, and “the current government is trying to force all independent, still independent state bodies to cease their activities.”
Marcin Jabłoński (PAP)
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