Constitutional Tribunal (Poland)

[Image:Trybunał Konstytucyjny wejście 01.JPG|right|thumb|260px|The seat of the Tribunal, Warsaw]
[Image:Warszawa t konstytucyjny.jpg|right|thumb|260px|The seat of the Tribunal, Warsaw (2006)]
The Constitutional Tribunal is the constitutional court of the Republic of Poland, a judicial body established to resolve disputes on the constitutionality of the activities of state institutions; its main task is to supervise the compliance of statutory law with the Constitution of the Republic of Poland.
Its creation was a request of the Solidarity movement following its 1981 National Congress that took place a few weeks before the introduction of martial law. The Tribunal was established on 26 March 1982 and judges took office on 1 January 1986.
The tribunal's powers increased in 1989 with the transition to the democratic Third Polish Republic and in 1997 with the establishment of a new Constitution. The Constitution mandates that its 15 members are elected by the Sejm, the lower house, for 9 years. It is the subject of an appointment crisis since 2015.
It should not be confused with the Supreme Court of Poland.

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The Constitutional Tribunal adjudicates on the compliance with the Constitution of legislation and international agreements, on disputes over the powers of central constitutional bodies, and on compliance with the Constitution of the aims and activities of political parties. It also rules on constitutional complaints.

Composition

The Constitutional Tribunal is made up of 15 judges chosen by the Sejm RP for single nine-year terms. The Constitutional Tribunal constitutes one of the formal guarantees of a state grounded on the rule of law.

History

1982–1989: People's Republic of Poland

The Constitutional Tribunal was established by the amendment of the Constitution of the People's Republic of Poland on 26 March 1982. Due to the brevity of the introduced article 33a, it was decided that a law must be brought forth that would outline the proceedings of the Constitutional Tribunal. This became an intricate process with 15 drafts developed, and the final act was ratified by the Sejm on 29 April 1985 which allowed for the formal commencement of the Tribunal's judicial proceedings on 1 January 1986. But the courts competence and judicial capacity were limited at this time, as all rulings on the constitutionality of bills could be dismissed by a 2/3 majority vote in the Sejm. This in effect would place the rulings in an indefinite moratorium as these votes rarely occurred.
On 24 January 1986 the first motion, reference U 1/86, was brought before the Constitutional Tribunal on behalf of the Presidium of the Provincial National Council in Wrocław. The claimants sought to contend two paragraphs of the Ordinance of the Council of Ministers in regard to the sale of state property and the procedures and costs related to it as unconstitutional. In opposition to the government's stance, the court ruled in a 3-member panel on 28 May 1986 that the introduced paragraphs were unconstitutional. The Council of Ministers called for a reevaluation of the case, but on 5 November 1986 the Constitutional Tribunal upheld its ruling.

1989–2014: Third Polish Republic

In 1989 the Constitutional Tribunal's powers expanded as it secured the right to universally decide on the binding interpretation of laws. Many changes came with the enactment of the 1997 Constitution; the number of judges increased from 12 to 15, terms of office were elongated by 1 year for a total of 9 years, and the Tribunal lost its competence to decide the interpretation of legal statutes.

2015–2016: Polish Constitutional Court crisis

In 2015, the governing Civic Platform party lost both the presidential election and the parliament (Sejm) majority to the Law and Justice party, which won an unprecedented absolute majority of seats.
Before the new president of Poland, Andrzej Duda, assumed office on 6 August 2015, and the new (eighth) Sejm was seated on 12 November 2015, the PO majority attempted to nominate enough judges so that the judicial branch would not quickly fall under the control of PiS.
In 2015, 5 of the 15 seats were due to be replaced. Three terms were due to end during the Sejm's recess. Two others were due for early December.
PO attempted to nominate all five seats due to be vacant in the year 2015 in advance. In June 2015, they enacted a provision in which it sought to transfer such power to the Sejm. Then on 8 October 2015, two weeks before the election, the Sejm elected these 5 judges. The new President Duda refused to let any of them take their oaths of office. After PiS won the elections and a majority of seats, they nominated a different set of five judges who were immediately sworn in.
This ignited a fierce partisan struggle, as the remaining judges in the Tribunal, most of which had been nominated by PO majorities, ruled out 3 of the 5 PiS nominees, validating instead 3 PO nominees, with the 3 PiS judges sworn in not allowed to hear cases.
As a result, a law was immediately passed by the PiS majority to force the inclusion of its nominees, sparking protests and foreign statements of either hostility or support. As this was not enough, a total of 6 "remedial bills" devised by PiS were enacted in the 2015-2016 period. A two-thirds majority was instated, diluting partisan influence. Finally, the term of resisting President Rzepliński ended and on 21 December 2016, President Andrzej Duda appointed junior member Julia Przyłębska as President of the Constitutional Tribunal.
Since the reform and takeover of the Constitutional Tribunal by the Law and Justice, the independence and sovereignty of the institution has been questioned. It was called a "puppet court" by Polish opposition judges' associations, some foreign judicial organisations and constitutionalist counterparts. In February 2020, former Constitutional Tribunal judges, including former presidents of the tribunal Andrzej Rzepliński,,, and Andrzej Zoll, stated,
PiS having been reelected to the Sejm in 2019, and the PiS-affiliated Andrzej Duda being reelected as president in 2020, they were able to fill the Court's 15 seats completely by 2021.
On 4 March 2024, following a non-PiS government being elected in October 2023 and formally sworn in on 13 December 2023, a package of measures was announced with the aim of reforming the Tribunal. The measures included a prospective Sejm resolution calling on illegitimately appointed judges to resign voluntarily and branding Julia Przyłębska as not being authorised to be the Tribunal's chief justice, prospective legislation to alter selection procedures and eligibility, and prospective constitutional changes to allow for the implementation of the measures.

Landmark decisions

Case K 1/20

The Tribunal received a referral by 119 MPs on whether or not abortions of pregnancies unrelated to rape or not threatening the mother's life, which they call "eugenic", are constitutional. The signatories argued that the provision violates Constitutional protections of human dignity, the right to life or the prohibition against discrimination.
On 22 October 2020, an 11–2 ruling declared that abortion in Poland due to foetal abnormality was violating the Constitutional protection of human dignity. This effectively made abortions on that basis unobtainable for women in Poland. The provision had been used for 1074 of the 1110 legal abortions in 2019. The ruling triggered the October 2020 Polish protests, which forced the government to delay the ruling's publication in the Dziennik Ustaw until 27 January 2021.

Case K 3/21

In July 2021, Prime minister Mateusz Morawiecki asked the Tribunal for a constitutional review of three provisions of Treaty on European Union. Following a series of hearings of prominent officeholders, the Tribunal ruled on 7 October 2021 in a 12–2 decision that:

Article 1 of the Treaty on European Union, insofar as it is interpreted by the European Court of Justice in a "new step" which
* enlarges the EU institutions' competence beyond the limits that Poland accepted via its treaties,
* opposes the primacy of the Constitution of Poland in both validity and application,
* opposes the sovereignty of the Polish state,
: is unconstitutional;
Article 19 of the Treaty on European Union, insofar as it gives ordinary courts the right to disregard the Constitution, and to adjudicate on the basis of provisions repealed by the Sejm or deemed unconstitutional by the TK, is unconstitutional;
Article 19 and Article 2 of the Treaty on European Union are unconstitutional insofar as they empower ordinary courts to question the constitutionality of judicial appointments by the President.

Consequently, all branches of power in Poland argue that Poland's membership in the European Union does not entail that institutions external to the state have the supreme legal authority.
This was widely interpreted as a challenge of the primacy of European Union law, which emerged in Costa v. ENEL, with some talking of a judicial "Polexit". European primacy, however, had never been fully enshrined by previous Polish rulings, only insofar as it doesn't infringe on Poland's sovereignty.
This landmark decision marks the culmination of the escalade over judicial nominations and reforms between Brussels and Warsaw that began in late 2015, when Law and Justice came to power, starting with the 2015 Polish Constitutional Court crisis. Many politicians in Brussels called upon the European Commission to freeze payments to Poland. The Commission President said she was deeply concerned, and ordered to act swiftly. The recently implemented Rule of Law Conditionality Regulation could be used.

Justices

[2015 Polish Constitutional Court crisis]

In the summer and autumn 2015, a change of power occurred with Civic Platform losing both the Sejm and the Presidency to Law and Justice. These two branches appoint and swear new judges, respectively.
In 2015, the term of five judges was set to expire, three of which between Sejm election day and the new legislature's session, and two the month after. PO tried to appoint them in advance but their oath was denied by the new PiS President, Andrzej Duda. As a result, they never sat. The new PiS majority nominated three other judges on 2 December 2015 and two others the next week, who were immediately sworn in. Cioch and Morawski later died while in office, and were replaced by Justyn Piskorski and Jarosław Wyrembak.
Of the appointments made before the election, the Constitutional Tribunal itself invalidated the last two and accepted the first three. As a consequence, of the appointments made after the election, the Tribunal accepted the last two and invalidated the first three. However, the ruling was disputed by the new government, who then went on to change the statutes regulating the Court, in order to have its nominees sit. See 2015 Polish Constitutional Court crisis.
Multiple cases were sent to the European Court of Human Rights and the European Court of Justice, challenging the Tribunal's legal status. In Xero Flor v Poland, the ECHR ruled on 7 May 2021 that a Polish company did not have the right to a fair trial because Muszyński's election was unlawful. The Constitutional Tribunal is expected to judge on 3 August 2021 whether it will comply to the ruling or not; this is interpreted as a decision on whether the European or Polish courts are sovereign. In a 14 July 2021 ruling, the Tribunal rejected the constitutionality of any attempt by the ECHR to suspend the Polish tribunals, as such competence has never been transferred by any treaty.

Length of tenure

This graphical timeline depicts the length of each current justice's tenure on the Court:

Former

No.	Full name		Sejm	Term as a Justice	Term length
1.	prof. Henryk de Fiumel		IX	1 December 1985 – 17 June 1986
2.	prof. Kazimierz Buchała		IX	1 December 1985 – 1 December 1989
3.	prof. Natalia Gajl		IX	1 December 1985 – 1 December 1989
4.	dr Adam Józefowicz		IX	1 December 1985 – 1 December 1989
5.	dr Andrzej Kabat		IX	1 December 1985 – 1 December 1989
6.	prof. Alfons Klafkowski		IX	1 December 1985 – 1 December 1989
7.	prof. Stanisław Pawela		IX	1 December 1985 – 1 December 1989
8.	dr Czesław Bakalarski		IX	1 December 1985 – 1 December 1993
9.	prof. Kazimierz Działocha		IX	1 December 1985 – 1 December 1993
10.	prof. Henryk Groszyk		IX	1 December 1985 – 1 December 1993
11.	prof. Leonard Łukaszuk		IX	1 December 1985 – 1 December 1993
12.	Remigiusz Orzechowski		IX	1 December 1985 – 13 August 1993
13.	Maria Łabor-Soroka	-	IX	25 November 1986 – 30 November 1993
14.	Antoni Filcek		X	1 December 1989 – 31 October 1992
15.	prof. Mieczysław Tyczka		X	1 December 1989 – 17 June 1994
16.	prof. Janina Zakrzewska		X	1 December 1989 – 27 May 1995
17.	prof. Tomasz Dybowski		X	1 December 1989 – 1 December 1997
18.	prof. Wojciech Łączkowski		X	1 December 1989 – 1 December 1997
19.	prof. Andrzej Zoll		X	1 December 1989 – 1 December 1997
20.	Ferdynand Rymarz	-	I	19 February 1993 – 19 February 2001
21.	dr hab. Błażej Wierzbowski		II	1 December 1993 – 30 November 1998
22.	prof. Wojciech Sokolewicz		II	1 December 1993 – 31 May 1999
23.	prof. Zdzisław Czeszejko-Sochacki		II	1 December 1993 – 1 December 2001
24.	prof. Lech Garlicki		II	1 December 1993 – 1 December 2001
25.	Stefan Jan Jaworski		II	1 December 1993 – 1 December 2001
26.	prof. Janusz Trzciński		II	1 December 1993 – 1 December 2001
27.	prof. Krzysztof Kolasiński	-	II	27 May 1994 – 27 May 2002
28.	Jadwiga Skórzewska-Łosiak		II	21 July 1995 – 21 July 2003
29.	prof. Teresa Dębowska-Romanowska		III	5 November 1997 – 5 November 2006
30.	prof. Marek Safjan		III	5 November 1997 – 5 November 2006
31.	prof. Marian Zdyb		III	5 November 1997 – 5 November 2006
32.	Wiesław Johann		III	1 December 1997 – 1 December 2006
33.	prof. Biruta Lewaszkiewicz-Petrykowska		III	1 December 1997 – 1 December 2006
34.	prof. Andrzej Mączyński		III	1 December 1997 – 1 December 2006
35.	dr hab. Jerzy Ciemniewski		III	18 December 1998 – 18 December 2007
36.	Jerzy Stępień		III	25 June 1999 – 25 June 2008
37.	Janusz Niemcewicz		III	2 March 2001 – 2 March 2010
38.	prof. Marian Grzybowski		IV	2 December 2001 – 2 December 2010
39.	dr hab. Marek Mazurkiewicz		IV	2 December 2001 – 2 December 2010
40.	dr hab. Mirosław Wyrzykowski		IV	2 December 2001 – 2 December 2010
41.	dr Bohdan Zdziennicki		IV	2 December 2001 – 2 December 2010
42.	prof. Ewa Łętowska		IV	28 May 2002 – 28 May 2011
43.	prof. Adam Jamróz		IV	22 July 2003 – 22 July 2012
44.	dr hab. Maria Gintowt-Jankowicz		V	6 November 2006 – 6 November 2015
45.	Wojciech Hermeliński		V	6 November 2006 – 6 November 2015
46.	Marek Kotlinowski		V	6 November 2006 – 6 November 2015
47.	dr hab. Zbigniew Cieślak		V	2 December 2006 – 2 December 2015
48.	dr hab. Teresa Liszcz		V	8 December 2006 – 8 December 2015
49.	Lidia Bagińska		V	8 December 2006 – 12 March 2007
50.	prof. Mirosław Granat		V	27 April 2007 – 27 April 2016
51.	prof. Andrzej Rzepliński		VI	19 December 2007 – 19 December 2016
52.	prof. Stanisław Biernat		VI	26 June 2008 – 26 June 2017
53.	prof. Sławomira Wronkowska-Jaśkiewicz		VI	6 May 2010 – 6 May 2019
54.	Stanisław Rymar		VI	3 December 2010 – 3 December 2019
55.	prof. Piotr Tuleja		VI	3 December 2010 – 3 December 2019
56.	prof. Marek Zubik		VI	3 December 2010 – 3 December 2019
57.	prof. Małgorzata Pyziak-Szafnicka		VI	5 January 2011 – 5 January 2020
58.	prof. Andrzej Wróbel		VI	29 May 2011 – 24 January 2017
59.	prof. Leon Kieres		VI	23 July 2012 – 23 July 2021
	prof. Roman Hauser		VII	7 November 2015 – 7 November 2024
	prof. Krzysztof Ślebzak		VII	7 November 2015 – 7 November 2024
	prof. Andrzej Jakubecki		VII	7 November 2015 – 7 November 2024
	prof. Bronisław Sitek		VII	'
	prof. Andrzej Sokala		VII	'
60.	prof. Henryk Cioch		VIII	2 December 2015 – 20 December 2017
61.	prof. Lech Morawski		VIII	2 December 2015 – 12 July 2017
62.	dr hab. Mariusz Muszyński		VIII	3 December 2015 – 3 December 2024
63.	Piotr Pszczółkowski		VIII	3 December 2015 – 3 December 2024
64.	Julia Przyłębska		VIII	9 December 2015 – 9 December 2024
65.	dr hab. Zbigniew Jędrzejewski		VIII	28 April 2016 – 28 April 2025
66.	dr hab. Michał Warciński		VIII	20 December 2016 – 20 December 2025
67.	dr hab. Grzegorz Jędrejek		VIII	27 February 2017 – 19 January 2020
72.	Krystyna Pawłowicz		IX	5 December 2019 – 5 December 2025
No.	Full name		Sejm	Term as a Justice	Term length