Polish Constitutional Tribunal crisis: political dispute or falling Kelsenian dogma of constitutional review

Last year in Polish constitutional law was a period of unprecedented crisis, related to the disputes over the Constitutional Tribunal. Initially, the dispute concerned the appointment of judges during the change of the parliamentary term of office. Afterwards, it expanded to further issues related to judicial control – whether the parliament can invalidate the choice of judges made by their predecessors, and finally entered the phase of total conflict – since the parliament passed the ‘recovery’ act which could have paralysed the work of the Constitutional Tribunal, and the Tribunal refused to implement it and ruled on its unconstitutionality – which in turn was not recognized by the executive and legislative authorities.

Since then, that is from 9 March 2016, the conflict over the Tribunal, in fact between the Tribunal and the Sejm, the government and the President, has reached an entirely new level. The Tribunal makes decisions on the basis of outdated law, its decisions are not published or recognized by the government, which in turn is a constitutional condition of their entry into force. The European Union and the Venice Commission became involved in attempts to influence the parliamentary majority and the government to alleviate the crisis. At the time of writing this article the parliament passed a new law on the Constitutional Tribunal, although on 11 August 2016, the Tribunal found some new regulations unconstitutional, so the crisis is still ongoing.