Michał Ziółkowski

Judicial Independence as the Essence of the Right to a Fair Trial? Commentary on the Judgment of the Supreme Court of 5 December 2019, Case No. III PO 7/18

The commented judgment of the Supreme Court concerns the judicial independence and the rule of law in times of constitutional crisis. For the first time in the Polish history the Supreme Court ruled that one of the chambers of the Supreme Court, as well as the National Council of the Judiciary, did not give an appearance of judicial independence. The Supreme Court followed the test of the appearance of judicial independence that had been provided by the Court of Justice of the European Union. The Supreme Court also claimed that judicial independence is the essence of the right to a fair trial. In constitutional terms, it means that independence cannot be lawfully limited, even in a proportional way. The commentary discusses that claim under two di?erent theoretical concepts of the essence of a constitutional right (objective and abstract versus individual and relative).

In the middle of the Polish constitutional 2015–2018 crisis, references to a ‘constitutional moment’ concept had suddenly and unexpectedly appeared in the Polish public debate. This article aims to confront fundamental conditions and implications of constitutional moment theory with the Polish constitutional framework. Firstly, I will argue that it may be controversial to refer directly to the constitutional moment in an interpretive sense due to the scope of current Polish constitutional regulation and its historical development. Secondly, I will argue that according to the fundamental findings of Bruce Ackerman’s theory its application during the constitutional crisis in Poland is also impossible both in a descriptive as well as interpretive sense. Then, with references to Sujit Choudhry’s interpretation of Ackerman’s ‘higher lawmaking,’ the article will conclude that Poland may have a constitutional moment (in a descriptive sense only) at the end of constitutional crisis and the need to restore the rule of law.

Comparative Interpretation or Non-comparative Reference to Foreign Law? (A case Study of the Polish Constitutional Tribunal)

The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as comparatively flawed. The article ends with a call to view the Tribunal’s references differently since the references to foreign law are an element of the non-linguistic context of the interpretation of constitutional provisions. It is also closer to an argument from authority than a comparative one.

The term of the Ombudsman and the constitutional principle of trust for the state and the law. Commentary on Constitutional Tribunal Judgement of 15 April 2021, case K 20/20

The commentary presented in the paper is doctrinal and has descriptive and interpretive aims. It discusses the Tribunal’s judgement concerning the unconstitutionality of one of the provisions of the Act on the Ombudsman. According to the provision, the Ombudsman shall continue to perform duties after the end of term and until the election of the new Ombudsman.

In the Tribunal’s view, the provision provided an unconstitutional extension of the Ombudsman’s term. Since the judgement was passed by the unconstitutionally elected members of the Tribunal and it was to remove Adam Bodnar (the former Ombudsman) from the office, it has to be interpreted in the context of the current constitutional crisis in Poland. The article argues that the Tribunal’s reasoning was constitutionally wrong, logically incoherent, and far from clear if considering the well-established case-law. Moreover, the paper explains how the Tribunal and the President of the Tribunal violated the law on the assignment of judges to the Tribunal’s panels and the constitutional principle of judicial independence. The concluding remarks focus on the possible legal consequences of unlawfulness in the Polish constitutional order, which does not directly provide any review of the Tribunal’s judgements or its President’s actions.