Polish Constitutional Tribunal divided over when head should leave office

One-third of the tribunal appealed to its head, Julia Przyłębska, to call a meeting to elect her successor, but Przyłębska says she is entitled to stay in office until 2024.

Six judges issued a letter demanding the election of a new president of the Tribunal, as they said Przyłębska’s term in office expired on 20 December, Rzeczpospolita news outlet reported. Citing the law on the Tribunal’s organisation, they insist that the Tribunal president’s term lasts six years.

Przyłębska, however, says her term as the Tribunal’s head expires together with her term as the judge of the Tribunal. “The judges’ letter is premature. (…) The fulfilment of their demand will only be possible after December 2024,” she replied in the announcement.

Przyłębska argues that she was nominated for the office of the Tribunal’s head in December 2016, a year after her election as a judge of the Tribunal. During that year, the Law in Justice (PiS) new government adopted a number of changes in the functioning of the Tribunal, including the law about the six-year term of the Tribunal’s president.

Until then, presidents were obliged to stay in their office as long as they remained members of the Tribunal.

However, according to Przyłębska, who cites the lex retro non-agit principle, the PiS-designed law came into force only after her nomination and did not state that it also applied to the then-incumbent Tribunal’s head.

The disagreement around the interpretation of the law on the term of the Tribunal’s head has divided the already politically split Constitutional Tribunal. Yet, TVN24 news TV station points out that most of the judges who demanded Przyłębska leave her office were already elected after the reforms PiS pushed through after coming to power in 2015 and which the EU Court of Justice decided were politically motivated.

The changes in the Constitutional Tribunal were an element of significant reforms in the Polish judicial system adopted by PiS after 2015, which the party said was necessary to eradicate corruption in the judiciary, whereas critics argued it was instead aimed at making the judges subordinate to PiS.

Under Przyłębska, the Constitutional Tribunal issued several controversial decisions, like the one further restricting the already strict abortion law, which sparked mass protests on the cities’ streets, as well as the ruling stating that some provisions of the Polish national law are superior to the EU law.

The changes in the judiciary that the CJEU challenged, including in the Supreme Court, as well as some rulings by the Przyłębska-led Constitutional Tribunal, are the reason why the European Commission continues to refuse to launch payments for Poland from the Recovery and Resilience Facility (RRF) aimed at helping European economies to recover from the COVID-19 pandemic.

The Commission established a package of milestones that Poland needs to fulfil to receive the first tranche of payments. Values and Transparency Commissioner Věra Jourová insists that the country still has not implemented the milestones to a sufficient degree for the money to be released.

(Aleksandra Krzysztoszek | EURACTIV.pl)

Read more with Euractiv

Right-wing rise in polls three months before Finnish elections