The final stage of the Constitutional Tribunal takeover: 20172018
Andrzej Rzeplinski’s term of office ended on 19 December 2016. Until the appointment of a new President, his duties should have been shouldered by Stanislaw Biernat, the then Vice-President of the Constitutional Tribunal.
Such a procedure would have guaranteed the lawfulness of the procedure for selecting a new President. Pursuant to the Constitution, he or she is appointed by the President of the Republic of Poland from among the candidates presented by the General Assembly of the Judges of the Tribunal. The General Assembly is chaired by the President (and in his or her place by the Vice-President). Unfortunately, the day after the end of Andrzej Rzephnski’s term of office, President Andrzej Duda decided to appoint Julia Przylebska (one of the December judges) as ‘the acting President of the Constitutional Tribunal’. One of Przylebska’s first decisions after taking over the actual leadership of the Constitutional Tribunal was to allow ‘stand-in judges’ to adjudicate and perform other judicial activities.The meeting of the General Assembly, the subject of which was the selection of candidates for the President of the Tribunal, was held on 20 December 2016. Six judges took part in the vote on the selection of candidates for the President. Eight refused to participate in the vote, indicating the procedural flaws of the convened General Assembly. One of the judges could not participate in the Assembly due to being on leave, but Przylebska decided not to postpone the appointment of candidates for the President of the Constitutional Tribunal (despite protests from some judges). In the end, J. Przylebska was supported by five of the 15 judges of the Constitutional Tribunal (three of these 15 were ‘stand-in judges’). On 21 December 2016, President Andrzej Duda appointed the President of the Constitutional Tribunal (Mariusz Muszyriski - one of the ‘stand-in judges’ - became the Vice-President).
The legally flawed appointment of Julia Przylebska as the President of the Constitutional Tribunal marks the beginning of the last phase of the ‘takeover of the Constitutional Tribunal’ by Law and Justice. It led to a significant decrease in judicial activity, the destabilisation of this body, a reduction in the number of cases (especially constitutional complaints and legal questions from courts), as well as a significant extension of the average longest deliberation period.[361] This proves the ineffectiveness of the ‘reforms’ of the Constitutional Tribunal introduced by subsequent amendments, which in fact had a negative impact on the functioning of the Polish constitutional court. The act on the organization and proceedings before the Constitutional Tribunal passed on 30 November 2016 (hereinafter the Act of 30 November 2016) prepared the legislative ground for the final stage of the Constitutional Tribunal takeover. Apart from the reorganisation of the current administrative structure of the Constitutional Tribunal (liquidation of the existing Constitutional Tribunal Office as of 31 December 2018), one significant consequence of this act was the provision amending the existing rules for excluding a judge from the adjudication panel. In practice, the new statutory regulations allowed Julia Przylebska to manipulate the panel of judges in numerous ways.[362]
Currently, the Constitutional Tribunal (composed of 15 judges) consists of 14 judges elected by the Sejm of the current term of office, and thus supported by Law and Justice. One of the so-called ‘old judges’ Leon Kieres will end his nine- year term on 23 July 2021. Of the 14 judges elected by Law and Justice votes, three are still ‘stand-in judges’, i.e. those who take the place of three judges legally elected in October 2015 (two of the ‘stand-in judges’ appointed in December 2015 have died, and the present parliamentary majority chose new ones to replace
them). The two candidacies (regarding non-stand-in judges) that caused the most controversy in the public debate were former parliamentarians associated with the current government: Krystyna Pawiowicz and Stanislaw Piotrowicz.
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