Venice Commission Backs Constitutional Tribunal Judges Swearing-In Without President

Judges of Poland’s Constitutional Tribunal whose swearing-in ceremonies have been blocked by Karol Nawrocki will take their oaths in an alternative format without the head of state, Sejm Speaker Włodzimierz Czarzasty announced on Tuesday during a meeting with voters in Tychy. Czarzasty stated that skończyła się cierpliwość regarding issues related to restoring the rule of law in Poland, adding that very efficient actions will be taken in the near future (Interia).

Venice Commission Opinion and Constitutional Dispute

The body indicated that if a president refuses to receive the oath from a judge chosen by the Sejm or delays it, making it impossible to complete the standard procedure, it is possible to complete the oath-taking act without the physical presence of the president (Interia). The opinion was adopted during the plenary session in Venice on Friday, October 9, and its text was published on Tuesday (Fakt). The document concerns regulations governing the powers of the President of the Republic of Poland regarding the receipt of oaths from judges of the Constitutional Tribunal and other appointments (Fakt). The Parliamentary Assembly of the Council of Europe (PACE) Monitoring Committee, which engages in monitoring the fulfillment of obligations towards the Council of Europe by member states, requested the opinion (Fakt). The Venice Commission, or the European Commission for Democracy through Law, is the Council of Europe’s advisory body on constitutional law, established in 1990 (Interia). It deals with assessing the compliance of legal solutions with the principles of democracy, the rule of law, and human rights (Interia). Its opinions are not binding, but they often influence developments (Interia). Presidential spokesman Rafał Leśkiewicz told PAP in commentary on the Venice Commission opinion that it has no legal force whatsoever, noting that the sources of law in Poland are the constitution and statutes (Interia). Donald Tusk published a video addressing the matter, stating Oceny Komisji Weneckiej są respektowane przez wszystkich, tylko nie przez prezydenta Nawrockiego and adding Panie prezydencie, nikomu pan łaski nie robi, to jest pana obowiązek: przestrzegać konstytucji (Onet). Constitutional law professor Marek Chmaj told “Fakt” that the Commission’s position represents a defeat for Karol Nawrocki and his chancery (Fakt).

Timeline of the Judicial Standoff

The dispute over the swearing-in of Constitutional Tribunal judges dates back to the beginning of April of this year, after the Sejm elected six new judges in March (Interia). Representatives of the Chancellery of the President argued that errors occurred during their selection (Interia). President Nawrocki invited two of the judges chosen at that time—Magdalena Bentkowska and Dariusz Szostek—and they took their oaths in his presence (Interia).

On April 9, those four uninvited judges took an oath in the Sejm’s Column Hall with the formula that they were doing so wobec prezydenta and subsequently forwarded written oath texts to the Presidential Chancellery’s office (Interia). They did not take up office, and Tribunal Bogdan Święczkowski stated that the Sejm events could not be recognized as an oath taken before the president (Interia). In June, the Sejm elected Sławomir Patyra, who took the oath in late July after an invitation from the president, while Maciej Berek was chosen as a judge in September and currently awaits an invitation from the president (Interia). Maciej Berek has appealed to Karol Nawrocki to “promptly” indicate the place and date for his swearing-in as a Constitutional Tribunal judge (TVN24). The four judges from March have filed a complaint with the European Court of Human Rights, and the National Prosecutor’s Office is conducting an investigation (TVN24).