Commission Thought Of I June 2016 Regarding The Dominion Of Police Delineate Inwards Poland: Amount Text Similar A Shot Available

Professor Laurent Pech

Rule of police clit aficionados amid the readers of this weblog may move interested inward getting access to the total text of the yet unpublished Commission Opinion regarding the Rule of Law inward Poland adopted on 1 June 2016, which is published as an Annex to this weblog post.

To enable non-experts to chop-chop empathise what is at stake, this postal service volition briefly depict the musical instrument on the footing of which the Commission has adopted this Rule of Law Opinion before succinctly recalling why the Commission deemed it necessary to formalise its concerns as regards the dominion of police clit inward Poland. Influenza A virus subtype H5N1 brusk summary of the Commission’s rationale used to plough downwards my initial asking for access to this Opinion nether Regulation 1049/2001 (concerning world access to European Union documents) volition also move provided.

(1) The EU’s Rule of Law Framework inward a nutshell

To bargain with what a number of European Union officials get got described as an increasing number of dominion of police clit crises, the European Commission adopted a new framework to strengthen the dominion of law inward March 2014. The Commission explicitly designed this novel musical instrument to bargain with situations where ‘a systemic threat to the dominion of law’ may move detected inward a Member State. Soon afterwards, Frans Timmermans was appointed First Vice-President of the European Commission inward accuse of, inter alia, the Rule of Law.

The Commission’s dominion of police clit framework takes the cast of an early on alarm tool whose primary purpose is to enable the Commission to move into into a structured dialogue with the relevant Member State. The overall aim is to foreclose whatsoever emergent systemic threat to the dominion of police clit from developing into a province of affairs where in that place is a clear endangerment of a serious breach of European Union values set downwards inward Article 2 TEU. This physical care for is supposed to precede the eventual triggering of what is frequently (albeit misleadingly) labelled as the ‘nuclear option’ set downwards inward Article 7 TEU (namely the interruption of a Member State’s rights for violating European Union values), hence the informal label of ‘pre-Article 7 procedure’ given to the 2014 Framework.

With honour the mechanics of this novel ‘pre-Article 7 procedure’, in that place is a three-stage physical care for initiated in addition to conducted yesteryear the Commission: (1) assessment; (2) recommendation in addition to (3) follow up. During the kickoff stage of the procedure, the Commission may create upwards one's hear to send a ‘rule of police clit opinion’ to the national authorities of the Member State concerned if in that place are clear indications of a systemic threat to the dominion of law. In the province of affairs where the affair has non been satisfactorily resolved, the Commission may in addition to so adopt a ‘Rule of Law Recommendation’ in addition to dot ways in addition to measures to resolve the province of affairs inside a prescribed deadline. Finally, the finally stage foreseen yesteryear the framework consists of the Commission’s monitoring of the implementation of whatsoever recommendation previously adopted. Should in that place move no satisfactory implementation, the Commission would in addition to so get got the possibility of triggering the Article 7 TEU mechanism.

(2) First activation of the Rule of Law Framework against Poland

On thirteen Jan 2016, Frans Timmermans announced the Commission’s determination to send out a preliminary assessment of the province of affairs of the Polish Constitutional Tribunal nether the Rule of Law Framework. This was the rattling kickoff fourth dimension this novel musical instrument had been activated. The primary justification for this unprecedented stride was the fact that binding rulings of the Polish Constitutional Tribunal were no longer respected yesteryear the authorities - ‘a serious affair inward whatsoever dominion of law-dominated state’ according to the First Vice-President of the European Commission. Influenza A virus subtype H5N1 catamenia of intensive but confidential dialogue betwixt the Commission in addition to Polish authorities followed. In the absence of whatsoever concrete steps taken yesteryear the Polish authorities to address its concerns, the Commission deemed it necessary to formalise its assessment of the province of affairs inward Poland yesteryear adopting a ‘Rule of Law Opinion’ on 1 June 2016. The Polish authorities was in addition to so invited to submit observations with the catch of satisfactorily resolving the Commission’s concerns inside a reasonable time. The text of the Commission Opinion was soundless non publicly released at the time. It was rather announced via a press release.

(3) Application for access to the total text of the Commission Opinion

My initial asking to gain access to the total text was rejected yesteryear the Commission on the the world that the disclosure of the Commission Opinion of 1 June 2016 ‘would undermine the protection of the purpose of the ongoing investigation’ as whatsoever disclosure ‘at this dot inward fourth dimension would behave on the climate of mutual trust betwixt the authorities of the Member dry ground in addition to the Commission, which is required to enable them to uncovering a solution in addition to foreclose the emergence of a organisation threat to the dominion of law’ (my application was lodged on 7 June 2016 in addition to turned downwards on xviii July 2016). Partial access was also rejected on the same ground.

This reasoning is non unreasonable. The Commission’s Communication regarding the Rule of Law Framework itself provides that ‘while the launching of the Commission assessment in addition to the sending of its catch volition move made world yesteryear the Commission, the content of the exchanges with the Member State concerned will, as a rule, move kept confidential, inward monastic tell to facilitate chop-chop reaching a solution.’ While the reference to ‘exchanges’ may move understood as suggesting that the Commission did non intend to maintain whatsoever Opinion itself confidential but rather the mere ‘exchanges’ betwixt itself in addition to a relevant government, 1 may bring that a for certain marking of confidentiality could inward regulation assist at this special juncture.

That beingness said, the Commission’s initial refusal to reveal the total text of the Rule of Law Opinion of 1 June 2016 was hard to reconcile with the total disclosure on eleven March 2016 of the Venice Commission’s Opinion on amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. It also meant, to a greater extent than problematically, that in that place could move no external scrutiny of the Commission’s action. It also deprived Polish citizens in addition to their national elected representatives of the chance to hash out the Commission’s diagnosis in addition to eventually piece of work out solutions to address the Commission’s concerns amongst their government.

Be that at it may, the Commission’s subsequent determination to spot out a Rule of Law Recommendation on 27 July 2016 led me to inquire the Commission to review their initial refusal to reveal the Opinion adopted on 1 June 2016. I argued inter alia that the catamenia of ‘mutual trust’ had neither led the Polish authorities to cooperate inward goodness faith, nor create the expected results required non only yesteryear the European Commission but also the Venice Commission. I furthermore emphasised that no impairment would resultant from the disclosure of the Opinion as far as the demeanor of the Commission’s investigation is concerned next the world release of the Commission’s Rule of Law Recommendation.

Having reviewed my application, the Secretariat General of the Commission accepted the disclosure of the total text of the Opinion on the footing that the exception set downwards inward Article 4(2) of Regulation 1049/2001 no longer applied next ‘the Commission’s issuance, on 27 July 2016, of a Recommendation regarding the dominion of police clit inward Poland.’

Readers familiar with the Commission Recommendation of 27 July 2016 volition chop-chop uncovering that the Recommendation closely reflects the content of the Opinion. It does soundless spot to a greater extent than emphasis on the number of the effective functioning of the Polish Constitutional Tribunal next inter alia the adoption of the police clit on the Constitutional Tribunal adopted yesteryear the Polish Parliament on 22 July 2016.

   

Professor Kochenov in addition to I are planning to offering readers of this weblog a to a greater extent than comprehensive analysis of the Commission’s Rule of Law Framework as applied inward the instance of Poland inward November, at which dot the deadline for implementing the Commission’s recommendations volition get got passed (there are clear indications that the Polish authorities has opted for confrontation over compromise with the EU in addition to volition non implement them). Meanwhile, interested readers may uncovering this special dominion of police clit number of the Journal of Common Market Studies, in addition to the articles contained therein, of special interest.

Barnard & Peers: chapter 8

Photo credit: www.dw.com

Annex

COMMISSION OPINION of 1.6.2016 regarding the Rule of Law inward Poland

1) Introduction

1. This catch sets out the concerns of the European Commission inward regard of the dominion of police clit inward Poland in addition to provides an chance for the Republic of Poland to answer to these concerns.

2. The European Union is founded on a mutual set of values enshrined inward Article 2 of the Treaty on European Union, which include inward special the honour for the dominion of law. The Commission, beyond its job to ensure the honour of European Union law, is also responsible, together with the European Parliament, the Member United States of America in addition to the Council, for guaranteeing the mutual values of the Union.

3. For this ground the Commission, taking line organisation human relationship of its responsibilities nether the Treaties, adopted on eleven March 2014 a Communication "A novel European Union Framework to Strengthen the Rule of Law" [1 COM(2014) 158 final, hereinafter "the Communication".] This Rule of Law Framework sets out how the Commission volition react should a threat to the dominion of police clit emerge inward a Member State of the Union in addition to explains the principles which the dominion of police clit entails.

4. The Commission considers after a careful assessment of the facts, that the next issues inward Poland enhance serious concerns inward regard of these principles.

Rule of Law Framework

5. The Rule of Law Framework provides guidance for a dialogue betwixt the Commission in addition to the Member State concerned to foreclose the escalation of systemic threats to the dominion of law.

6. The purpose of this dialogue is to enable the Commission to uncovering a solution with the Member State concerned inward monastic tell to foreclose the emergence of a systemic threat to the dominion of police clit that could develop into a "clear endangerment of a serious breach" which would potentially trigger the job of the 'Article 7 TEU Procedure'. Where in that place are clear indications of a systemic threat to the dominion of police clit inward a Member State, the Commission tin terminate initiate a dialogue with that Member State nether the Rule of Law Framework.

7. Case police clit of the Court of Justice of the European Union in addition to of the European Court of Human Rights, as good as documents drawn upwards yesteryear the Council of Europe, edifice notably on the expertise of the Venice Commission, provides a non-exhaustive listing of these principles in addition to hence defines the center pregnant of the dominion of police clit as a mutual value of the Union inward accordance with Article 2 of the Treaty on European Union (TEU). Those principles include legality, which implies a transparent, accountable, democratic in addition to pluralistic physical care for for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent in addition to impartial courts; effective judicial review including honour for key rights; in addition to equality before the law2. [2 See COM(2014) 158 final, department 2, Annex I.] In improver to upholding those principles in addition to values, State institutions also get got the duty of loyal cooperation.

8. The Framework is to move activated inward situations where the authorities of a Member State are taking measures or are tolerating situations which are probable to systematically in addition to adversely behave on the integrity, stability or the proper functioning of the institutions in addition to the safeguard mechanisms established at national flat to secure the dominion of law3. [3 See para 4.1 of the Communication.]  The purpose is to address threats to the dominion of police clit which are of a systemic nature4. [4 See para 4.1 of the Communication.] The political, institutional and/or legal monastic tell of a Member State as such, its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its organisation of judicial review including constitutional justice where it exists, must move threatened5 . [5 See para 4.1 of the Communication.]The Framework is to move activated inward special inward situations when national "rule of police clit safeguards" make non appear capable of effectively addressing those threats.

9. The Rule of Law Framework has 3 stages:

· Commission assessment: inward this stage the Commission collects in addition to examines all the relevant information in addition to assesses whether in that place are clear indications of a systemic threat to the dominion of law. If, on this evidence, the Commission believes that in that place is a systemic threat to the dominion of law, it volition initiate a dialogue with the Member State concerned, yesteryear sending a "rule of police clit opinion", substantiating its concerns. The catch could move the resultant of an telephone substitution of correspondence in addition to meetings with the relevant authorities in addition to move followed yesteryear farther exchanges.

· Commission Recommendation: inward a minute stage, if the affair has non been satisfactorily resolved, the Commission tin terminate number a "rule of police clit recommendation" addressed to the Member State. In this case, the Commission would recommend that the Member State solves the problems identified inside a fixed fourth dimension limit, in addition to inform the Commission of the steps taken to that effect. The Commission volition brand world its recommendation.

· Follow-up to the Commission Recommendation: inward a 3rd stage, the Commission volition monitor the follow-up given yesteryear the Member State to the recommendation. If in that place is no satisfactory follow-up inside the fourth dimension bound set, the Commission tin terminate resort to the 'Article 7 Procedure'.

The entire physical care for is based on a continuous dialogue betwixt the Commission in addition to the Member State concerned.

Factual context  

10 In Nov 2015, the Commission became aware of an ongoing dispute inward Poland concerning the composition of the Constitutional Tribunal, as good as the shortening of the mandates of its electrical current President in addition to Vice-President. The Constitutional Tribunal rendered 2 judgments on these matters, on 3 in addition to nine Dec 2015.

11. In addition, the Commission noted that the Sejm adopted on 22 Dec 2015 a police clit amending the police clit on the Constitutional Tribunal, which concerns the functioning of the Tribunal as good as the independence of its judges6. [6 Law of 22 Dec 2015 amending the Law of 25 June 2015 on the Constitutional Tribunal. The amending Law was published inward the Official Journal on 28 December; item 2217.]

12. In a missive of the alphabet of 23 Dec 2015 to the Polish Government7, [7 Letter of 23 Dec 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski in addition to Minister of Justice Mr Ziobro.] the Commission asked to move informed virtually the constitutional province of affairs inward Poland, including the steps envisaged yesteryear the Polish authorities with honour to the above-mentioned 2 judgements of the Constitutional Tribunal. As regards the amendments contained inward the Law of 22 Dec 2015 on the Constitutional Tribunal, First Vice President Timmermans stated he would await that this police clit is non finally adopted or at to the lowest degree non spot into forcefulness until all questions regarding the impact of this police clit on the independence in addition to the functioning of the Constitutional Tribunal get got been fully in addition to properly assessed. The Commission also recommended the Polish authorities to piece of work closely with the Council of Europe's Venice Commission8. [8 European Commission for Democracy through Law (Venice Commission)].

13. On 23 Dec 2015 the Polish Government asked for an catch of the Venice Commission on the Law of 22 Dec 2015. However, the Polish Parliament did non await this catch before taking farther steps, in addition to the Law was published inward the Official Journal in addition to entered into forcefulness on 28 Dec 2015.

14. On thirty Dec 2015 the Commission wrote to the Polish Government9 [9 Letter of thirty Dec 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski in addition to Minister of Justice Mr Ziobro.] to seek additional information virtually the proposed reforms to the governance of Poland's Public State Broadcasters. First Vice President Timmermans asked the Polish Government how relevant European Union police clit in addition to the demand to promote media pluralism were taken into line organisation human relationship inward the grooming of the novel "small media law".

15. On 31 Dec 2015, the Polish Senate adopted the "small media law" concerning the management in addition to supervisory boards of the Polish world idiot box broadcaster in addition to world radio broadcaster. The novel police clit modifies the rules for the appointment of the Management in addition to Supervisory Boards of the world service broadcasters, putting them nether the command of the Treasury Minister, rather than an independent body. The novel police clit also provided for the immediate dismissal of the existing Supervisory in addition to Management Boards.

16. On 7 Jan 2016, the Commission received a response from the Polish Government10 [10 missive of the alphabet of 7 Jan 2016 from Undersecretary of State Mr Stepkowski to First Vice President Timmermans] on the missive of the alphabet on the media police clit denying whatsoever adverse impact on media pluralism. On eleven January, the Commission received a response from the Polish Government on the Constitutional Tribunal reform11. [11 missive of the alphabet of eleven Jan 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans] These responses did non take away existing concerns.

17. On thirteen Jan 2016, the College of Commissioners held a kickoff orientation debate inward monastic tell to assess the province of affairs inward Poland. The Commission decided to examine the province of affairs nether the Rule of Law Framework in addition to mandated First Vice President Timmermans to move into into a dialogue with the institutions of the Republic of Poland inward monastic tell to clarify the issues at manus in addition to spot possible solutions.

18. On the same day, First Vice-President Timmermans wrote to the Polish Government12 [12 Letter of thirteen Jan 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] informing the Government that the Commission is examining the province of affairs nether the Rule of Law Framework in addition to wished to move into into a dialogue with the institutions of the Republic of Poland inward monastic tell to clarify the issues at manus in addition to spot possible solutions.

19. On xix Jan 2016 the Commission wrote to the Polish Government13 [13 Letter of xix Jan 2016 from Commissioner Oettinger to Minister of Justice Mr Ziobro.] offering to contribute expertise in addition to hash out matters related to the novel media law.

20. On xix Jan 2016 the Polish Government wrote to the Commission14 [14 Letter of xix Jan 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans.] setting out its views on the dispute concerning the appointment of judges, referring inter alia to a constitutional custom relating to the appointment of judges. Regarding the amendment to the Act on the Constitutional Tribunal this missive of the alphabet sets out its positive effects.

21. On 1 Feb 2016 the Commission wrote to the Polish Government15 [15 Letter of 1 Feb 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] noting that the judgements of the Constitutional Tribunal on the appointment of judges get got soundless non been implemented. The missive of the alphabet also underlines the demand to farther examine the amendment to the Act on the Constitutional Tribunal, inward special the "combined effect", requesting to a greater extent than detailed explanations. The missive of the alphabet also requests information virtually other laws which get got been adopted recently, inward special the novel Civil Service Act, the Act amending the police clit on the Police in addition to for certain other laws, as good as the Law on the Public Prosecution Service, in addition to virtually legislative reforms which are beingness envisaged, notably farther reforms of the media legislation.

22. On 29 Feb 2016 the Polish Government wrote to the Commission16 [16 Letter of 29 Feb 2016 from Minister of Foreign Affairs Mr Waszczykowski to First Vice President Timmermans.] providing farther clarifications on the mandate of the President of the Constitutional Tribunal. The missive of the alphabet clarifies that the Tribunal's judgment of nine Dec 2015 states that the interim provisions of the amending police clit that provided for ending the mandate of the President were pronounced unconstitutional in addition to lost their legal effect. As a result, the electrical current President of the Tribunal volition move on to practice his mandate pursuant to the old legislative provisions until his mandate expires on xix Dec 2016. The missive of the alphabet also states that the mandate of the adjacent President volition move 3 years long. The missive of the alphabet furthermore requests clarifications as to what the Commission agency yesteryear insisting that the binding in addition to terminal judgments of the Constitutional Tribunal get got soundless non been implemented as good as clarifications why according to the Commission the resolutions electing 3 judges of the Constitutional Tribunal on 2 Dec 2015 run counter to the Tribunal's subsequent judgement.

23. On 3 March 2016 the Commission wrote to the Polish Government17, [17 Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] providing clarifications concerning the number of the appointment of judges as requested yesteryear the Polish Government inward the missive of the alphabet of 29 Feb 2016. Regarding the amendment to the Act on the Constitutional Tribunal the missive of the alphabet notes that according to a preliminary assessment for certain amendments, both individually in addition to taken together, brand to a greater extent than hard the weather nether which the Constitutional Tribunal may review the constitutionality of newly passed laws in addition to requests to a greater extent than detailed explanations on this. The missive of the alphabet also asks for information virtually other laws which get got been adopted lately in addition to farther legislative reforms which are beingness envisaged.

24. On nine March 2016 the Constitutional Tribunal ruled that the Law of 22 Dec 2015 is unconstitutional. That judgment has so far non been published inward the Official Journal.

25. On eleven March 2016 the Venice Commission adopted its catch "on amendments to the Act of 25 June 2015 on the Constitutional Tribunal"18 . [18 Opinion no. 833/2015, CDL-AD(2016)001.]

26. On 21 March 2016, Minister of Foreign Affairs of Poland Mr Waszczykowski wrote to First Vice President Timmermans inviting him to a coming together inward Poland to assess the dialogue carried out so far betwixt the Polish Government in addition to the Commission in addition to to determine how to move on it inward an impartial, evidence-based in addition to cooperative way.

27. On 31 March 2016 Secretary of State for European Affairs Mr Szymanski wrote to FVP Timmermans with recent information in addition to legal assessments regarding the dispute to a greater extent than or less the Constitutional Tribunal inward Poland. Influenza A virus subtype H5N1 Federal Reserve annotation was included from Undersecretary of State Mr Stępkowski "Polish Constitutional Tribunal in addition to the electrical current argument to a greater extent than or less it".

28. On 5 Apr 2016, meetings took house inward Warsaw betwixt First Vice-President Timmermans in addition to Minister of Foreign Affairs Mr Waszczykowski, Minister of Justice Mr Ziobro, Deputy Prime Minister Mr Morawiecki, as good as with the President in addition to the Vice-President of the Constitutional Tribunal, Mr Rzepliński in addition to Mr Biernat.

29. Following these meetings, several meetings took house betwixt the Polish Government, represented yesteryear the Ministry of Justice, in addition to the Commission.

30. Following the judgment of nine March 2016, the Constitutional Tribunal started 1 time again adjudicating cases. The Polish Government did non participate inward these proceedings in addition to the judgements rendered yesteryear the Constitutional Tribunal since nine March 2016 get got so far non been published yesteryear the Government inward the Official Journal19. [19 Since nine March 2016 nine judgments get got been rendered yesteryear the Constitutional Tribunal which get got non been published.]

31. On 6 Apr 2016 the President of the Constitutional Tribunal informed the world that he had received a missive of the alphabet from Minister of Justice Mr Ziobro, dated 5 Apr 2016, stating inter alia that the Tribunal is legally required to proceed inward accordance with the provisions of the Law of 22 Dec 2015, that whatsoever attempts yesteryear the Tribunal to human activeness exterior the framework of the Constitution in addition to the Law of 22 Dec 2015 volition non move granted legitimacy yesteryear whatsoever cast of participation therein from the Minister of Justice inward his capacity as Prosecutor-General, in addition to that the Prosecutor-General's role is to monitor the lawfulness of such attempts.

32. On xx Apr 2016 a coming together took house betwixt the Commission in addition to representatives of the Network of Presidents of Supreme Judicial Courts of the European Union in addition to of the Conference of European Constitutional Courts to hash out virtually the province of affairs inward Poland. The President of the Network of Presidents, Chief Justice Denham, contributed inward writing to this meeting.

33. On 26 Apr 2016, the General Assembly of the Supreme Court of Poland adopted a resolution attesting that the rulings of the Constitutional Tribunal are valid, fifty-fifty if the Polish Government refuses to spot out them inward the Official Journal.

34. On 28-29 Apr 2016, a delegation of the Venice Commission visited Warsaw to hash out the recent amendments to the Law on the Police in addition to for certain other laws20, [20 Law of xv Jan 2016 amending the Law on Police in addition to other laws, published inward Official Journal on four Feb 2016, item 147.] inward catch of delivering an catch on 10-11 June 2016.

35. An goodness grouping was composed inward the Sejm to assist prepare a novel police clit on the Constitutional Tribunal. On 29 Apr 2016 a grouping of members of the Sejm submitted to the Sejm a legislative proposal for a novel Constitutional Tribunal Act with a catch to replacing the electrical current Act. The proposal contains several provisions which were already criticised yesteryear the Venice Commission inward its catch of eleven March 2016 in addition to declared unconstitutional yesteryear the Tribunal inward its ruling of nine March 2016. This includes the requirement of a two-thirds bulk for adopting decisions for "abstract" constitutional review of newly adopted laws.

36. On 5 May 2016 the President of the Constitutional Tribunal Mr Rzepliński informed the world that he had received a missive of the alphabet from the Minister of Finance of Poland Mr Szałamacha, dated 2 May 2016, calling for restraint inward making world statements on the electrical current province of affairs to a greater extent than or less the Tribunal until thirteen May 2016 as on that engagement a credit rating agency would bring a determination on its rating for Poland.

37. On 24 May 2016, First Vice-President Timmermans had meetings inward Warsaw with Prime Minister Ms Szydło, with the President in addition to the Vice President of the Polish Constitutional Tribunal Mr Rzepliński in addition to Mr Biernat, with the Ombudsman Mr Bodnar, with the Mayor of the City of Warsaw Ms Gronkiewicz-Waltz in addition to with members of the opposition parties inward the Sejm. On 26 May 2016 First Vice-President Timmermans had a coming together inward Brussels with Deputy Prime Minister Mr Morawiecki. Subsequently, farther exchanges in addition to meetings took house betwixt the Commission in addition to the Polish government.

38. However, despite the detailed in addition to constructive nature of the exchanges betwixt the Commission in addition to the Polish Government, they were non able to resolve the concerns of the Commission.

2) Scope of the catch

39. The acquaint catch sets out the electrical current concerns of the Commission inward regard of the dominion of police clit inward Poland concerning the next issues:

· the appointment of judges of the Constitutional Tribunal in addition to the implementation of the judgments of the Constitutional Tribunal of 3 in addition to nine Dec 2015 relating to these matters 21; [21 The Commission considers the number of the shortening of the mandate of the President in addition to the Vice-President of the Constitutional Tribunal as resolved inward catch of the judgment of the Tribunal of nine Dec 2015 in addition to the clarifications received from the Polish Government.]

· the Law of 22 Dec 2015 amending the Law on the Constitutional Tribunal, the judgment of the Constitutional Tribunal of nine March 2016 relating to this law, as good as the honour of the judgments rendered yesteryear the Constitutional Tribunal since nine March 2016;

· the effectiveness of Constitutional review of novel legislation, inward special the novel media law, in addition to for certain other laws which get got been adopted in addition to enacted inward 2016.

3) Appointment of judges of the Constitutional Tribunal

I. The Facts

40. Ahead of the full general elections for the Sejm of 25 Oct 2015, on 8 Oct the outgoing legislature nominated 5 persons to move 'appointed' as judges of the Constitutional Tribunal yesteryear the President of the Republic. Three judges would bring seats vacated during the mandate of the outgoing legislature piece 2 would bring seats vacated during that of the incoming legislature which commenced on 12 Nov 2015.

41. On xix Nov 2015, the novel legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made yesteryear the previous legislature in addition to to nominate 5 novel judges. The amendment also shortened the price of business office of the President in addition to Vice-President of the Tribunal from nine to 3 years, with the electrical current price coming to an automatic halt 2 inside 3 months of the amendment's adoption. On 25 Nov 2015 the novel legislature passed a motion annulling the 5 nominations yesteryear the previous legislature in addition to on 2 Dec nominated 5 novel judges.

42. The Constitutional Tribunal was seized concerning the decisions of both the previous legislature in addition to the incoming legislature. The Tribunal delivered 2 judgements, on 3 in addition to nine Dec 2015.

43. In its judgment of 3 December22, [22 K 34/15] the Constitutional Tribunal ruled inter alia that the previous legislature of the Sejm was entitled to nominate 3 judges replacing the judges whose price expired on 6 Nov 2015. At the same time, the Tribunal clarified that the Sejm had non been entitled to elect the judges replacing those whose term expired inward December. The judgment also specifically referred to the obligation for the President of the Republic to instantly bring the oath from a estimate elected yesteryear the Sejm.

44. On nine December23, [23 K 35/15.] the Constitutional Tribunal inter alia invalidated the legal footing for the nominations yesteryear the novel legislature of the Sejm of the 3 judges for the vacancies opened upwards on 6 Nov 2015 for which the previous legislature had already lawfully nominated judges. In this judgment the Constitutional Tribunal also considered that a reduction of the duration of the mandate of the President in addition to Vice-President from nine to 3 years was constitutional only inward so far as the reduction applied to futurity mandates in addition to as long as a renewal of the mandate would non move possible.

45. Despite these judgments, the 3 judges that get got been nominated yesteryear the previous legislature get got non taken upwards their business office of estimate inward the Constitutional Tribunal in addition to their oath has non yet been taken yesteryear the President of the Republic. Conversely, the oath of the 3 judges nominated yesteryear the novel legislature without a valid legal footing has been taken yesteryear the President of the Republic.

46. The 2 judges elected yesteryear the novel legislature replacing the 2 judges outgoing inward Dec 2015, Ms Przyłębska in addition to Mr Pszczółkowski, get got inward the meantime taken upwards their business office of estimate inward the Constitutional Tribunal.

47. On 28 Apr 2016 the President of the Republic took the oath of Mr Jędrzejewski who had been nominated yesteryear the novel legislature before that calendar month to supervene upon Mr Granat whose term as estimate inward the Constitutional Tribunal had ended.

II. Assessment

Appointment of judges of the Constitutional Tribunal

48. The Commission considers that the binding in addition to terminal judgments of the Constitutional Tribunal of 3 in addition to nine Dec 2015 as far as the appointment of judges is concerned get got soundless non been implemented. These judgments require that the State institutions of Poland cooperate loyally inward monastic tell to ensure, inward accordance with the dominion of law, that the 3 judges that get got been nominated yesteryear the previous legislature of the Sejm tin terminate bring upwards their business office of estimate inward the Constitutional Tribunal, in addition to that the 3 judges nominated yesteryear the novel legislature without a valid legal footing make non bring upwards this function. The fact that these judgments get got non been implemented raises serious concerns inward regard of the dominion of law, as compliance with terminal judgments is an essential requirement inherent inward the dominion of law.

49. In the telephone substitution of letters the Polish Government referred to the existence of a constitutional custom inward Poland regarding the nomination of judges which would justify the spot taken yesteryear the novel legislature of the Sejm. The Commission notes however, as did the Venice Commission24, [24 Opinion, para 112.] that it is for the Constitutional Tribunal to translate in addition to apply the national constitutional police clit in addition to custom, in addition to that the Constitutional Tribunal did non refer to such a custom inward its judgments. The judgment of 3 Dec which has validated the legal footing for the nominations of the 3 judges yesteryear the previous Sejm for the posts which became vacant on 6 Nov cannot move overturned yesteryear invoking a supposed constitutional custom which the Tribunal did non recognize.

50. Also, limiting the impact of these judgments to a mere obligation for the Government to spot out them, as spot frontwards yesteryear the Polish authorities, would deny whatsoever legal in addition to operational outcome of the judgments of 3 in addition to nine December. In particular, it denies the obligation of the President of the Republic to bring the oath of the judges inward question, which has been confirmed yesteryear the Constitutional Tribunal.

51. Finally, the Commission notes that also the Venice Commission considers that a solution to the electrical current conflict over the composition of the Constitutional Tribunal "must move based on the obligation to honour in addition to fully implement the judgments of the Constitutional Tribunal" in addition to "therefore calls on all State organs in addition to notably the Sejm to fully honour in addition to implement the judgments"25. [25 Opinion, para 136.]

Conclusion

52. In catch of the higher upwards the Commission considers that the Polish authorities should honour in addition to fully implement the judgments of the Constitutional Tribunal of 3 in addition to nine Dec 2015. These judgments require that the State institutions cooperate loyally inward monastic tell to ensure, inward accordance with the dominion of law, that the 3 judges that get got been nominated yesteryear the previous legislature tin terminate bring upwards their business office of estimate inward the Constitutional Tribunal, in addition to that the 3 judges nominated yesteryear the novel legislature without a valid legal footing make non bring upwards the postal service of estimate without beingness validly elected.

4) Amendment of 22 Dec 2015 to the Law on the Constitutional Tribunal

I. The Facts

53. On 22 Dec 2015, next an accelerated procedure, the Sejm amended the Law on the Constitutional Tribunal26. [26 Law of 25 June 2015 on the Constitutional Tribunal, published inward Official Journal on thirty July 2015, item 1064, as amended. The Law of 22 Dec 2015 was published inward the Official Journal on 28 December; item 2217.] The amendments inter alia increased the attendance quorum of judges for hearing cases27, [27 See Article 1(9) new, replacing Article 44(1-3).] raised the majorities needed inward the Constitutional Tribunal to manus downwards judgments inward total configuration28, [28 See Article 1(14) new, replacing Article 99(1).] required the treatment of cases inward chronological order29 [29 See Article 1(10) new, inserting a novel Article 80(2).] in addition to provided a minimum delay for hearings30. [30 See Article 1(12) new, replacing Article 87(2).] Certain amendments31 [31 See Article 1(5) new, inserting a novel Article 28a in addition to Article 1(7) new, inserting a novel Article 31a.] increased the involvement of other institutions of the State inward disciplinary proceedings concerning judges of the Tribunal. These amendments are set out inward to a greater extent than item below.

Attendance quorum

54. The amended Article 44(3) states that "Adjudicating inward total bench shall require the participation of at to the lowest degree thirteen judges of the Court". 32 [32 This novel attendance quorum also applies for resolutions of the General Assembly, unless otherwise provided inward the Law, catch Article 1(3) new, amending Article 10(1).] According to the amended Article 44(1) nether 1) the Constitutional Tribunal shall dominion sitting inward its total configuration, unless otherwise specified yesteryear law. This applies inward special to what are described as "abstract cases" of constitutional review of newly adopted laws. The amended Article 44(1) nether 2) in addition to 3) provides for exceptions, notably for private complaints or cases submitted yesteryear ordinary courts. The sometime version of the Law required, for a determination yesteryear the total bench, the presence of at to the lowest degree nine judges (Article 44 (3), item 3 of the Law before the amendment).

Voting bulk

55. According to the amended Article 99(1), judgments of the Constitutional Tribunal sitting as a total bench (for "abstract cases") require a bulk of two-thirds of the judges sitting. With a catch to the novel (higher) attendance quorum (see above) this agency that a judgment must move approved yesteryear at to the lowest degree nine judges if the Constitutional Tribunal adjudicates as a total bench33. [33 According to the amendment, the same rules - attendance quorum in addition to a two-third bulk of votes - also apply to the General Assembly of the Court.] Only if the Tribunal adjudicates inward a panel of 7 or 3 judges (individual complaints in addition to preliminary requests from ordinary courts), a uncomplicated bulk of votes is required. The sometime version of the Law required, for a determination yesteryear the total bench, a uncomplicated bulk of votes (Article 99(1) of the Law before the amendment).

Handling of cases inward chronological monastic tell

56. According to amended Article 80(2)34, [34 See Article 1(10) new, inserting a novel Article 80(2).] the dates for hearings or proceedings inward camera, where applications inward abstract constitutional review proceedings are considered, "shall move established yesteryear monastic tell inward which the cases are submitted to the Court". There are no exceptions foreseen to this dominion in addition to according to the amendment this dominion applies to all pending cases for which no engagement for a hearing has been set yet35. [35 See Article 2 new.] The sometime version of the Law did non include such rule.

Minimum delay for hearings

57. According to amended Article 87(2)36, [36 See Article 1(12) new.] ”[t]he hearing may non bring house before than after 3 months from the hateful solar daytime the notification on the engagement of the hearing has been delivered to the participants of the proceedings, in addition to for cases adjudicated inward total bench – after half dozen months”. The sometime version of the Law stated that the hearing cannot move held before than after fourteen days from the delivery engagement of the notification of its engagement to participants of the proceedings.

Disciplinary proceedings

58. According to amended Article 28a37, [37 See Article 1(5) new.] “[d]isciplinary proceedings may also move instituted farther to an application from the President of the Republic of Poland or the Minister for Justice no later than 3 weeks after the engagement of receipt of the application, unless the President of the Court decides that the application is unfounded.” Furthermore, according to the novel Article 31a(1) of the Law38 [38 See Article 1(7) new.] “[i]n peculiarly gross cases, the General Assembly shall apply to the Sejm to depose the estimate of the Court.” This activeness of the General Assembly could move initiated yesteryear an application yesteryear the President of the Republic or the Minister of Justice pursuant to Article 31a(2) new, although the Constitutional Tribunal remains costless to decide. The terminal determination volition move taken yesteryear the Sejm. According to the sometime version of the Law the Executive branch was non entitled to institute disciplinary proceedings in addition to the Sejm was non granted the powerfulness to depose a estimate of the Court. The Constitutional Tribunal itself had the powerfulness to depose of a estimate of the Tribunal.

Judgment of nine March 2016 of the Constitutional Tribunal

59. In its judgment of nine March 2016, the Constitutional Tribunal declared unconstitutional the Law of 22 Dec 2015 inward its entirety as good as specific provisions thereof, inward special those referred to above. So far the Polish authorities get got failed to spot out the judgment inward the Official Journal. The Polish Government contests the legality of the judgment, as the Constitutional Tribunal did non apply the physical care for foreseen yesteryear the Law of 22 Dec 2015. The same spot is taken yesteryear the Government towards the judgments rendered yesteryear the Tribunal after nine March 2016.

II. Assessment

60. As set out inward to a greater extent than item below, the Commission takes the catch that the outcome of the amendments concerning the attendance quorum, the voting majority, the treatment of cases inward chronological monastic tell in addition to the minimum delay for hearings, inward special their combined effect, undermine the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution.

Attendance quorum

61. The Commission considers that the attendance quorum of thirteen out of xv Judges for the total configuration of the Constitutional Tribunal (which deals with the "abstract" constitutional review of newly adopted laws) represents a serious constraint on the decision-making physical care for of the Constitutional Tribunal, with the endangerment of blocking it. The Commission notes, as confirmed yesteryear the Venice Commission, that an attendance quorum of thirteen out of xv judges is unusually high compared to requirements inward other Member States. It is indeed only imaginable that for diverse reasons, such an attendance quorum mightiness on occasion non move reached, which would in addition to so larn out the Tribunal at to the lowest degree temporarily unable to adjudicate. In fact, such a province of affairs would move acquaint inward the electrical current circumstances, as the Tribunal has only 12 judges at this stage.

62. The impact of this requirement on the functioning of the Constitutional Tribunal must move assessed inside the context of other provisions, notably yesteryear taking into line organisation human relationship its combination outcome with other requirements as amended.

Voting bulk

63. In improver to the increased attendance quorum, a two-third bulk for adopting decisions (for "abstract" constitutional review of newly adopted laws) significantly aggravates the constraints on the decision-making physical care for of the Constitutional Tribunal. The Commission notes, as also confirmed yesteryear the Venice Commission, that inward the vast bulk of European legal systems, only a uncomplicated voting bulk is required. In whatsoever event, the Constitutional Tribunal found that the Polish Constitution prescribed voting yesteryear uncomplicated majority, in addition to that the requirement of a qualified bulk was thus unconstitutional.

Handling of cases inward chronological monastic tell

64. The "sequence rule” according to which the Constitutional Tribunal must hear cases inward the sequence inward which they get got been registered negatively affects the capacity to homecoming rapidly decisions on the constitutionality of novel laws, inward special inward catch of the electrical current number of pending cases. The impossibility to bring into line organisation human relationship the nature of a instance (in special when involving key rights issues), its importance in addition to the context inward which it is presented, tin terminate foreclose the Constitutional Tribunal from coming together the requirements for a reasonable length of proceedings as enshrined inward Article 6 of the European Convention on Human Rights in addition to Article 47 of the European Union Charter of Fundamental Rights. As also noted yesteryear the Venice Commission, the sequencing dominion may also discourage the putting of preliminary ruling questions to the Court of Justice, peculiarly if a hearing is required after the preliminary ruling has been received.

Minimum delay for hearings

65. Finally, this number is to move seen inward combination with the requirement concerning the scheduling of cases, inward special the minimum delay for hearings (participants of the proceedings must move notified of a hearing before the Constitutional Tribunal at to the lowest degree 3 - in addition to inward of import cases half dozen - months before the engagement of the hearing) risks slowing downwards proceedings unnecessarily. As set out above, the absence of a full general provision that would allow the Constitutional Tribunal to cut back these deadlines inward urgent cases is incompatible with the requirements for a reasonable length of proceedings nether Article 6 of the European Convention on Human Rights in addition to Article 47 of the European Union Charter of Fundamental Rights.

Overall findings on procedural issues

66. As an overall conclusion the Commission considers that the combined impact of these provisions on the effectiveness of the constitutional review is a affair of concern inward regard of the dominion of law, as it prevents the Constitutional Tribunal from fully ensuring an effective constitutional review in addition to fulfilling its business office as a safeguard machinery established at national flat to secure the dominion of law. This conclusion is shared yesteryear the Venice Commission.

Disciplinary proceedings

67. The Commission also notes with concern the fact that for certain amendments increment the involvement of other institutions of the State inward disciplinary proceedings concerning judges of the Tribunal. In particular, the President of the Republic or the Minister of Justice get got been given the powerfulness to initiate disciplinary proceedings against a Constitutional Tribunal judge39 [39 See Article 1(5) new, inserting a novel Article 28a.] and, inward peculiarly serious cases, it is for the Sejm to bring the terminal determination on the dismissal of a estimate next a asking to that outcome yesteryear the Constitutional Tribunal40 . [40 See Article 1(7) new, inserting a novel Article 31a.]

68. The Commission considers that the fact that a political trunk decides on (and hence may reject to impose) a disciplinary sanction as proposed yesteryear the Constitutional Tribunal may pose a job regarding independence of the judiciary, as the Parliament (as a political body) is probable to also create upwards one's hear on the footing of political considerations. Similarly it is non clear why political institutions such as the President of the Republic in addition to the Minister of Justice should get got the powerfulness to initiate disciplinary proceedings. Even if such proceedings require approving yesteryear the Tribunal or its President, already the fact that they may move initiated yesteryear political institutions may get got an impact on the independence of the Tribunal. This raises concerns as regards the separation of powers in addition to the independence of the Constitutional Tribunal as the proposal of the Tribunal to dismiss a estimate could move rejected yesteryear the Sejm.

Lack of implementation of the judgment of nine March 2016

69. The Constitutional Tribunal ruled inward its judgment of nine March that the amendments of the Law of 22 Dec 2015 referred to inward this department are unconstitutional.

70. The Commission notes that the Polish Government contests the legality of the judgment, as the Constitutional Tribunal did non apply the physical care for foreseen yesteryear the Law of 22 Dec 2015. For this ground the Polish authorities get got non published the judgment inward the Official Journal.

71. The Commission considers that the Constitutional Tribunal was right non to apply the physical care for foreseen yesteryear the Law of 22 Dec 2015. In that honour the Commission agrees with the Venice Commission, which states on this dot that "a uncomplicated legislative act, which threatens to disable constitutional control, must itself move evaluated for constitutionality before it tin terminate move applied yesteryear the Court. […] The rattling thought of the supremacy of the Constitution implies that such a law, which allegedly endangers constitutional justice, must move controlled – in addition to if demand be, annulled – yesteryear the Constitutional Tribunal before it enters into force".41 [41 Opinion, para 41.] The Commission furthermore underlines that as the Constitutional Tribunal is currently composed of 12 judges only, it could otherwise non get got reviewed the constitutionality of the amendments of 22 Dec 2015 as requested yesteryear the First President of the Supreme Court, the Ombudsman in addition to the National Council of the Judiciary. This would get got been reverse to the Polish Constitution which has tasked the Constitutional Tribunal with the role of ensuring constitutional review. Similarly, the Tribunal could non get got decided on the constitutionality of the qualified bulk requirement piece voting inward accordance with the rattling requirement the constitutionality of which it was examining.

72. The refusal of the Government to spot out the judgment of the Constitutional Tribunal of nine March raises serious concerns inward regard of the dominion of law, as compliance with terminal judgments is an essential requirement inherent inward the dominion of law. In particular, where the publication of a judgment is a prerequisite for its taking outcome in addition to where such publication is incumbent on a State authorization other than the courtroom which has rendered the judgment, an ex postal service command yesteryear that State authorization regarding the legality of the judgment is incompatible with the dominion of law. The refusal to spot out the judgment denies the legal in addition to operational outcome of a binding in addition to terminal judgment, in addition to breaches the principles of legality in addition to separation of powers.

73. The refusal to spot out the judgment of nine March creates a flat of doubtfulness in addition to argument which volition adversely behave on non only the acquaint judgment, but all futurity judgments of the Tribunal. Since these judgments will, next the judgment of nine March, move rendered inward accordance with the rules applicable before 22 Dec 2015, the endangerment of a continuous argument virtually every futurity judgment volition undermine the proper functioning of constitutional justice inward Poland. This endangerment has already materialized as the Tribunal has to engagement rendered nine rulings since its ruling of nine March 2016, in addition to none of these rulings get got been published inward the Official Journal.

Conclusion

74. In catch of the above, the Commission takes the catch that the outcome of the amendments, inward special their combined effect, undermines the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution. The Commission also notes with concern the fact that for certain amendments increment the involvement of other institutions of the State inward disciplinary proceedings concerning judges of the Tribunal, raising concerns as regards the separation of powers in addition to the independence in addition to integrity of the Constitutional Tribunal.

75. The Commission notes that the amendments get got been declared unconstitutional yesteryear the Constitutional Tribunal inward its judgment of nine March 2016. However, the fact that the Polish Government has so far refused to spot out the judgment of the Constitutional Tribunal inward the Official Journal, creates doubtfulness virtually the legal outcome of the judgment in addition to hence on the legal footing on which the Tribunal must act. This doubtfulness undermines the effectiveness of constitutional review in addition to raises serious concerns inward regard of the dominion of law.

76. This legal doubtfulness has already manifested itself inward the fact that the farther judgments rendered yesteryear the Constitutional Tribunal get got non been published, in addition to are non recognised yesteryear the Government. This province of affairs of non-recognition of judgments of the Constitutional Tribunal is liable to create profound legal doubtfulness inward the Polish legal organisation across a broad attain of areas.

77. Refusing to spot out in addition to to human activeness upon the judgment of the Constitutional Tribunal of nine March 2016, as good as all the judgments of the Tribunal rendered subsequently, falls brusk of the required honour for the Tribunal as the guarantor of the Constitution, in addition to is non compatible with the dominion of law.

5) Effectiveness of Constitutional review of novel legislation - Media police clit in addition to other laws

I. The Facts

78. Influenza A virus subtype H5N1 number of peculiarly sensitive novel legislative acts get got been adopted yesteryear the Sejm, frequently through accelerated legislative procedures, such as, inward particular, a media law42, [42 Law of thirty Dec 2015 amending the Broadcasting Law, published inward Official Journal on 7 Jan 2016, item 25.] a novel Civil Service Act43, [43 Law of thirty Dec 2015 amending the Law on Civil Service in addition to for certain other acts, published inward Official Journal on 8 Jan 2016, item 34.] a police clit amending the police clit on the Police in addition to for certain other laws44 [44 Law of xv Jan 2016 amending the Law on Police in addition to other laws, published inward Official Journal on four Feb 2016, item 147.] in addition to laws on the Public Prosecution Service45, [45 Law of 28 Jan 2016 on the Prosecutor's Office, published inward Official Journal on xv Feb 2016, item 177; Law of 28 Jan 2016 - Regulations implementing the Act - Law on the Prosecutor's Office, published inward Official Journal on xv Feb 2016, item 178.] in addition to a novel police clit on the Ombudsman in addition to amending for certain other laws46. [46 Law of xviii March 2016 on the Ombudsman in addition to amending for certain other laws. The police clit was signed yesteryear the President of the Republic on four May 2016.] The Commission has asked the Polish Government virtually the dry ground of play in addition to content of these legislative reforms inward its letters of 1 Feb 2016 in addition to 3 March 2016, but so far this information has non been provided. Furthermore, a number of other sensitive draft legislative acts get got been submitted to the Sejm, such as drafts for a novel media law47 [47 Draft legislation submitted to the Sejm on 25 Apr 2016.] in addition to a novel anti-terrorism law48. [48 Draft legislation submitted to the Sejm on eleven May 2016. The Commission is furthermore aware that a novel police clit amending the Law on the National Judicial Council in addition to for certain other laws has been submitted on 5 May 2016 yesteryear the Minister of Justice to the National Legislative Centre.]

II. Assessment

79. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, in that place volition move no effective scrutiny of compliance with the Constitution, including key rights, of legislative acts such as those referred to above. The Commission notes for representative that novel legislation (such as the media law49) [49 Law of thirty Dec 2015 amending the Broadcasting Law, published inward Official Journal on 7 Jan 2016, item 25.] raises concerns relating to liberty in addition to pluralism of the media. More specifically, the novel media police clit modifies the rules for the appointment of the Management in addition to Supervisory Boards of the world service broadcasters, putting them nether the command of the Treasury Minister, rather than an independent body. The novel police clit also provides for the immediate dismissal of the existing Supervisory in addition to Management Boards. In that honour the Commission questions inward special the possibilities of judicial redress for the persons affected yesteryear the law.

81. Legislation such as the novel Civil Service Act50 [50 Law of thirty Dec 2015 amending the Law on Civil Service in addition to for certain other acts, published inward Official Journal on 8 Jan 2016, item 34.] is as of import from the perspective of the dominion of police clit in addition to key rights. In that honour the Commission has asked to Polish Government virtually the possibilities of judicial redress for the persons affected yesteryear the police clit inward its letters of 1 Feb in addition to 3 March 201651. [51 Letter of 1 Feb 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro; Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] The Polish Government has so far non replied to the Commission on this point.

82. Also the Law on the Public Prosecution Service52 [52 Law of 28 Jan 2016 on the Prosecutor’s Office, published inward Official Journal on xv Feb 2016, item 177; Law of 28 Jan 2016 – Regulations implementing the Act – Law on the Prosecutor’s Office, published inward Official Journal on xv Feb 2016, item 178.] is of import from the perspective of the dominion of police clit in addition to key rights, in addition to requires a fully effective constitutional review, including inward private cases.

83. The police clit amending the police clit on the Police in addition to for certain other laws53 [53 Law of xv Jan 2016 amending the Law on Police in addition to other laws, published inward Official Journal on four Feb 2016, item 147.] may also enhance questions relating to its compliance with key rights, including privacy in addition to information protection. On 28-29 Apr 2016, a delegation of the Venice Commission visited Warsaw to hash out the amendments to the Law on the Police in addition to for certain other laws, with a catch to delivering an catch on 10-11 June 2016.

Conclusion

84. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, in that place volition move no effective scrutiny of compliance with key rights of legislative acts. This raises serious concerns inward regard of the dominion of law, notably as a number of peculiarly sensitive novel legislative acts get got been adopted lately yesteryear the Sejm for which constitutional review should move available.

6) Conclusion

85. For the reasons set out higher upwards the Commission is of the catch that in that place is a province of affairs of a systemic threat to the dominion of police clit inward Poland. The fact that the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review adversely affects its integrity, stability in addition to proper functioning, which is 1 of the essential safeguards of the dominion of police clit established inward Poland. Where a constitutional justice organisation has been established, its effectiveness is a key ingredient of the dominion of law.

86. Respect for the dominion of police clit is non only a prerequisite for the protection of all key values listed inward Article 2 of the Treaty on European Union. It is also a prerequisite for upholding all rights in addition to obligations deriving from the Treaties in addition to from international law, in addition to for establishing mutual trust of all European Union citizens in addition to national authorities inward the legal systems of all other Member States.

87. The Commission is of the catch that this threat to the dominion of police clit must move addressed as a affair of urgency. The Polish authorities should honour in addition to fully implement the judgments of the Constitutional Tribunal of 3 in addition to nine Dec 2015 concerning the appointment of judges. This agency inward special that the President should bring the oath of the 3 judges that get got been nominated yesteryear the previous legislature.

88. Moreover, it is necessary that the Polish authorities honour in addition to spot out the judgment of the Constitutional Tribunal of nine March 2016 concerning the rules on the functioning of the Constitutional Tribunal. They should also spot out in addition to comply with all judgments that get got been rendered yesteryear the Constitutional Tribunal since nine March or volition move rendered inward the future.

89. More generally, the Commission underlines that the loyal cooperation which is required amongst the dissimilar dry ground institutions inward dominion of police clit related matters is essential inward monastic tell to uncovering a solution inward the acquaint situation. This includes that all Polish authorities refrain from actions in addition to world statements which could undermine the legitimacy in addition to efficiency of the Constitutional Tribunal.

90. The Commission invites the Polish Government to submit its observations on the foregoing inside 2 weeks of receipt of this opinion. On the footing of these observations, the Commission stands ready to pursue the constructive dialogue with the Polish authorities with a catch to finding solutions to the concerns set out inward this opinion. If the concerns get got non been satisfactorily resolved inside a reasonable time, the Commission may number a recommendation.

Done at Brussels, 1.6.2016

For the Commission

Frans TIMMERMANS Member of the Commission

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