A report by the Venice Commission of the Council of Europe — a separate body from the European Union founded in 1949 to protect democracy, human rights and the rule of Law — has said that the decision by the PiS government — led by Prime Minister Beata Szydlo — to make changes to the country's Constitutional Tribunal is "inadmissible."
Opinion on the Polish Constitutional tribunal has just been adopted by the 106th plenary in Venice: https://t.co/cIrEx2VPSP— Venice Commission (@VeniceComm) March 11, 2016
In December 2015, the Polish Government added five 'politically friendly' judges to the country's Constitutional Tribunal, in a move seen by critics as making it easier to push through legislation with less opposition.
The amendment meant that the tribunal would need a two-thirds majority to take a decision on constitutional matters instead of a simple majority. The minimum number of judges needed to make a decision was also raised from nine to 13, making it more difficult to convene a quorum.
The changes stated that there should be a six-month period before the tribunal can examine a case, rather than two weeks, which critics say allows the government to pass legislation that will go unchallenged for months.
However, Chief Justice Andrzej Rzeplinski last week ruled that many sections of the law passed in December 2015 were "non-compliant with the Polish Constitution."
"[The law] prevents the honest and proper functioning of the… Constitutional Court, by interfering in its independence and separation from other powers, thus violating the principles of the rule of law."
However, the government in Warsaw said it would ignore the ruling, refusing to publish it — under the Polish constitution a ruling does not become final until officially published.
"A solution to the current conflict over the composition of the Constitutional Tribunal… must be found," the Venice Commission said.
"The Venice Commission calls both on majority and position to do their utmost to find a solution in this situation.
"Rather than speeding up the work of the Tribunal these amendments, notably when taken together, could lead to a serious slow-down of the activity of the Tribunal and could make it ineffective as guardian of the Constitution.
"Crippling the Tribunal's effectiveness will undermine all three basic principles of the Council of Europe: democracy — because of an absence of a central part of checks and balances; human rights — because the access of individuals to the Constitutional Tribunal could be slowed own to a level resulting in the nail of justice; and the rule of law — because the Constitutional Tribunal, which is a central part of the Judiciary in Poland, would become ineffective," the Venice Commission report stated.
The European Commission in January also launched an investigation because it believes the constitutional changes could break its 'rule of law mechanism' which seeks to is rein in EU member governments whose policies and legislation are seen to pose a "systematic threat" to EU values — particularly on justice, democracy and media freedom.