The Ombudsman (RPO) decided not to take part in the case before the illegal Constitutional Court (CCC) disassembling the case of deficiency of power to appeal against the decision not to take into account the request for exemption from judicial costs. In addition, the RPO indicated that specified action would proceed if the Court had a alleged ‘dubler judge’.
The decision of prof. Marcin Więck, the Ombudsman, may constitute a turning point and the beginning of effective force on the illegally functioning Court. This is peculiarly crucial in view of the function of the RPO as a constitutional body of key importance in the state's legal system. In addition, it is worth noting that prof. Wiązek was elected to this position in 2021 as a consequence of a political compromise, erstwhile both the governing PiS organization and the opposition at the time supported his candidacy.
The Ombudsman withdrew his participation in a case concerning the refusal of dismissal from court costs which was a good place last week. As a justification, he gave the fact that there was a justice elected to the Constitutional Court in a way contrary to the Constitution in the ruling on the matter. Here we are talking about Jarosław Wyrembak, who is 1 of the alleged "doublers judges".
– This condition was formally established by the Polish Parliament in its resolution of 6 March 2024. The Sejm, as a constitutional authority empowered to elect the judges of the Constitutional Tribunal, stated, among others, that the resolution of 26 January 2018 on the election of Jarosław Wyrembak as a justice of the Court is out of force – Wiątek argues.
The March Resolution of the Sejm on the Constitutional Court was implemented
We remind you that the resolution, which is part of the government's plan of fundamental changes in the TK, known as the four-pack Bodnar, expresses the position of Members who have stated that Julia Przyłębska is not entitled to direct the Court, and that 3 alleged "double judges" should not regulation as judges of the TK.
Wiązek, utilizing this resolution, interpreted it as partially resulting from Article 190(4) of the Constitution, which serves to enforce the decisions of the Constitutional Tribunal. As a result, the RPO considered that the resolutions of the Sejm on the election of alleged "doublers judges" were annulled, eliminating them from the legal circulation.
Although any lawyers, erstwhile examining the resolution of the Sejm of March, suggested that it would not have real legal effects, the decision of the RPO to retreat from proceedings before the Constitutional Tribunal suggests that this resolution may, however, have legal consequences. Marcin Wiązek announced that he would resign from taking part in cases before the Constitutional Tribunal, if the alleged "speaker judges" were involved.
There's gotta be a first time
– There's always a first time. Indeed, this is in practice the first case for the State to comply with this resolution of the Sejm. However, the RPO had a work to do so and simply made the correct explanation of this resolution. He applied the law reasonably – commented the constitutionalist Dr. Tomasz Zalasinski.
He pointed out that only the Sejm could officially confirm that the resolutions concerning the election of Constitutional Court judges were invalid.
– In this case, the Sejm, by means of a March resolution, annulled the election of double judges and thus executed both the judgments of the Constitutional Tribunal and the European Court of Human Rights. The consequence is to destruct all resolutions which form the basis for the functioning of the alleged doubles from legal trading. At the moment, they have no legal basis to participate in the work of the Constitutional Tribunal – says Dr. Zalasinski.
Dr. Zalasinski believes that another state institutions that appear before the Constitutional Tribunal should follow the example of the RPO and resign from taking part in cases if the Court is simply a "dubler judge".
Professor Maciej Serowaniec of the Nicolaus Copernicus University in Toruń expresses a akin position. In his opinion, the solidarity of state institutions towards the Constitutional Court is desirable and can be an effective tool for "soft" but effective impact on the Court.
"The initiative taken by the RPO is simply a step towards restoring the regulation of law. This is the first clear signal that shows the change of the cautious constitutional approach of the authorities to the TK case – says Prof. Serowaniec.
In his opinion, the Ombudsman, utilizing the resolution of the Sejm, made the right choice in the way he acted and set the right way to change.
The Constitutional Tribunal is devoid of the characteristics of the Tribunal established by the Act, as it is composed of an unauthorised person. On this basis, it should be considered that the ‘order’ issued in a composition established in breach of the basic rule applicable to the selection of judges of the Constitutional Court and consequently affecting the essence of the right to a court established by the Act does not have legal effect.
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"There must be a first time." The RPO resigned its participation in an illegal TK meeting
