Practical aspects of the constitutional crisis in Poland
The dispute over the Polish Constitutional Tribunal is ongoing and escalating. Even suggesting that the Constitutional Tribunal still exists and functions in Poland is risky, as it can be seen as taking sides in the dispute. The tribunal has recently dealt with politically charged cases, but a ruling handed down on 8 May 2024 was apolitical and resolved a nagging issue that had been on the tribunal’s docket for years.
An issue important for citizens but garnering little media coverage is whether the inability to appeal an order denying an exemption from court costs (the fee for filing an appeal), issued for the first time by the appellate court, is constitutional. In the judgment issued on 8 May 2024 (case no. SK 59/21), the tribunal held that this regulation is unconstitutional.
In 2019, the overhaul of Poland’s Civil Procedure Code reformed appellate procedures. One change was that ruling on whether an appeal complies with the formal conditions was shifted from the lower court to the appellate court. But that amendment was not accompanied by a corresponding change in the list of rulings by the appellate court that are themselves appealable. As the Ministry of Justice later admitted, there was no rational basis for failing to make an order denying exemption from the appeal fee appealable, and according to the drafters of the Civil Procedure Code reform this was a legislative oversight. This oversight was corrected by a further amendment effective 1 July 2023. But the change did not remedy the effects of the absence of this provision on many civil litigants between 7 November 2019 and 30 June 2023.
For example, the Ombudsman drew attention to the large number of complaints on this matter (Ombudsman letter of 7 January 2021 to the Minister of Justice, IV.511.351.2020.KP), and the Prosecutor General asserted the unconstitutionality of this regulation (e.g. in the pleading of 6 April 2023 in case no. SK 20/22 before the Constitutional Tribunal). Both businesses and individuals had argued in petitions to the Ministry of Justice that, for example, as a result of the Covid-19 pandemic, their material situation had significantly deteriorated, and the civil procedure rules at the time prevented them from learning the motives behind the denial of an exemption from the appeal fee. This in turn, they argued, deprived them of the right to appeal the ruling, due to their financial status (see Petition to the Minister of Justice of 22 April 2020 regarding amendments to the provisions on court costs).
In the judgment of 8 May 2024, the Constitutional Tribunal answered doubts about the compatibility of this rule with the constitutional principles of equality, the right to access the courts, the appealability of rulings, and the right to have a case heard at two instances. The tribunal declared the unconstitutionality of this provision, which could deprive many people of access to the courts, i.e. Art. 3942 §11 of the Civil Procedure Code, in the wording set forth in Art. 1(142)(b) of the Act of 4 July 2019 Amending the Civil Procedure Code and Certain Other Acts, “insofar as it prevents a person from challenging an order denying exemption from court costs contained in an appeal and issued for the first time by the court of second instance.”
This judgment may have implications for many other side issues such as the appealability of rulings, the notion of a “case,” incidental proceedings, or the principle of equality. Unlike other recent cases decided by the Constitutional Tribunal, it is not political, but could affect many potential proceedings in Poland. It addresses the issue of procedural formalism and the problem of finding the golden mean between expediting court proceedings and access to the courts, in accordance with the Constitution.
The tribunal was correct in finding that it was unconstitutional to bar an interlocutory appeal against the appellate court’s order denying an exemption from the appeal fee. Although the absolute principle of a right to appeal set forth in Art. 176(1) of the Constitution does not apply to incidental rulings (such as the one in question), in view of the principle of procedural fairness embodied in the right to access the courts, the parliament should not prevent challenges to certain incidental decisions having a significant impact on the merits of the case. Such a situation arises in the case of an order denying exemption from the appeal fee. The direct impact of such a ruling is that a party denied an exemption from the appeal fee, and without the means to pay it, will not be able to realise the constitutional right to appeal rulings by the court of first instance. This means that denial of an exemption from the appeal fee improperly restricts the individual’s subjective rights defined in the Constitution.
But will the judgment of 8 May take effect, and be recognised by other courts and in the legal literature? What will be the legal status of previous, similarly apolitical rulings, e.g. involving:
- Differentiation in the minimum fees for trial counsel depending on whether counsel is hired by the client or appointed by the court (case nos. SK 85/22 and SK 78/21)
- Refusal to restore a driver’s licence covering categories previously held by the driver and not covered by the criminal sanction of a driving ban issued against the driver (case no. SK 23/21)?
For many, the very fact that some of the aforementioned cases were ruled on by “usurpers” in the tribunal precludes the possibility of respecting the rulings suffering from this defect. Some go further and claim that no judgments entered by the Constitutional Tribunal in its current form should be recognised, even if the panel was comprised solely of “real” judges. But in practice, many of the judgments of the Constitutional Tribunal rendered by panels including persons of contested status are recognised by other courts and in the legal literature, for example being cited in commentaries.
In several cases, the European Court of Human Rights has categorically held that the Polish Constitutional Tribunal lacks the attributes of a court established by law when an unauthorised person sits on the panel (Xero Flor w Polsce sp. z o.o. v. Poland, Application no. 4907/18; Wałęsa v. Poland, Application no. 50849/21; M.L. v. Poland, Application no. 40119/21). But the practice seems to soften this categorical judgment and take into account that a dispute over flaws in the tribunal’s composition must not deprive citizens of the right to pursue a constitutional complaint in their ordinary human affairs. Constitutional courts exist in almost all democracies, sometimes in the form of a separate institution (e.g. in Poland or Germany), while sometimes this authority is vested in the supreme court (e.g. in the US or Israel).
The Constitutional Tribunal began its real activity in Poland in 1985/86, a period even more difficult for protecting the rule of law than the last eight years have been. The right to file a constitutional complaint over a final ruling based on an unconstitutional law has been vested in every citizen since adoption of the 1997 Constitution. But these aggrieved parties have no option to choose the composition of the tribunal hearing their case. Nor should they be held hostage by an ongoing political dispute that will not be resolved until at least mid-2025.
Tomasz Kisiel, Competition & Consumer Protection practice, Wardyński & Partners
