On July 10, 2008, the Polish Sejm (lower house of Parliament) passed an act authorizing the President of the Republic of Poland to deposit a statement acknowledging the adequacy of the Court of Justice of the European Communities (hereafter: ECJ) on the basis of Article 32 of Act 2 of the Treaty of the European Union (Dziennik Ustaw; 2009 nr 33, position 253).  The deposition of such a statement would result in a change in the breadth of the effect of the Treaty of the European Union (hereafter: TEU) on the Republic of Poland.  The foremost consequence of the deposition of such a statement would be an acknowledgement by Poland of the Court of Justice’s adequacy in terms of pre-judicial pronouncements on the validity and  interpretation of framework decisions and  based on or interpretations of conventions, drafted within the bounds of the title concerning police and judicial cooperation in criminal cases as well as the validity of the means available to enforce those conventions.

The pre-judicial procedure covered by Article 35 of Act 2 of the TEU pertains to police and judicial cooperation in criminal cases, i.e, the so-called third pillar of the EU.  The procedure cannot cover evaluations of the importance and proportionality of the actions of the police and other public forces undertaken in the interest of enforcing order and protecting domestic security.  The procedure also bars questioning the legitimacy and usage of domestic law, as well as whether domestic law is in accord with EU law.

The jurisdiction intended by Article 35 of Act 2 of the TEU is optional in nature.  Acknowledgement of the adequacy of the ETS comes as a part of the member state’s pronouncement; an institution characteristic to public international law, as opposed to supranational law (Community law).

In a proposition submitted on September 2, 2008, the President of Poland requested that the Constitutional Tribunal assess the conformation of Article 1 of the aforementioned act with Article 45 of Act 1 of the Polish Constitution.  In the opinion of the President, allowing every court (including trial courts) to consult pre-judicial questions with the ECJ within the scope of the thrid pillar of the EU is incompatible with the individual right to an efficient trial.  The other participants of the Constitutional Tribunal’s proceedings presented a differnet viewpoint, however.  Both the Marshal of the Sejm and the Attorney General moved in favor of  ruling that the law codified in Article 1 of the July10, 2008 act conforms to Article 45 of Act 1  of the Polish Constitution.

The Constitutional Tribunal, after identifying the matter, ruled on February 18, 2009 that Article 1 of the act empowering the President of Poland to deposit a statement on the basis of Article 35 of Act 2 of the TEU is compliant with the right to an efficient trial, as expressed in Article 45 of Act 1 of the Constitution of Poland.

In the justification of its’ verdict, the Constitutional Tribunal emphasized that the procedure of pre-judicial consultation serves to ensure interpretation and homogenous usage of EU law in the member states and enables cooperation between domestic judicial vehicles and the ECJ.  The Tribunal also recalled the assignations codified in the May 11, 2005 verdict in Case K 18/04, in which the Tribunal determined that the obligation of courts to pre-judicial consultation is a legal consequece of the sovereignly accepted international commitments of Poland as a member state of the EU, as well as the division of duties in terms of the organizational system of the EU.

The Constitutional Tribunal did not share the views of the mover, who claimed that a result of depositing the statement from Article 35 of Act 2 of the TEU would be a ceding of the authority of courts, or a limitation of the verdict-pronouncing powers of Polish courts on behalf of the institutions of the international organizantion.  In the opinion of the Tribunal, the statement would be an update to the authority to conduct pre-judicial procedures in accord with the law of the third pillat of the EU, not the creation of such authority.

The basic reproach to the presidentially-criticized July 10, 2008 Act was the possibility of delays in court proceedings during which the court would opt to submit a pre-judicial question to the ECJ. The Constitutional Tribunal, agreeing that the efficiency of court proceedings has a significant effect on the successful enforcement of the rule of law and individual liberty guaranteed in the Constitution, also observed that the pursuit of a swift trial should not have a negative impact on the correct interpretation and usage of legal norms.  It was also emphasized that the   judicial institutions would be forced to strike a balance, so as to prevent the proceedings from being excessively protracted and to protect the litigant parties from the consequences of a protracted trial.

The Constitutional Tribunal also recalled several verdicts of the European Court of Human Rights, in which the ECHR ruled that extending legal proceedings in order to refer pre-judicial questions to the ECJ should not be considered a delay of the trial.  In consideration of that, the waiting period for an answer to a pre-judicial question cannot be counted as a part of the duration of the trial for which the state is responsible.

As a result of the Constitutional Tribunal’s February 25, 2009 verdict, the President of Poland signed the July 10, 2008 act, which was entered into the Dziennik Ustaw (Journal of Statutes) on February 28, 2009.  From the time the statute was enacted (i.e, since March 15, 2009), the President of Poland holds the authority to submit a statement, referred to in Article 25 of Act 2 of the TEU.  Considering the verdict of the Constitutional Tribunal, there are no legal obstacles preventing the submission of a statement concerning the procedure of pre-judicial confrontation in the third pillar of the EU; an institution which, as the Constitutional Tribunal stated, helps protect the freedoms of the individual.

The current situation, in which such a statement has not yet been submitted, is forcing Polish courts to use the ECJ’s verdicts as guidelines, while being unable to independently contribute to the return of such verdicts (see the July 20, 2006 Supreme Court resolution, signature: I KZP 21/06).  The Constitutional Tribunal has rightly assented, in light of the above, that creating the possibility of pre-judicial consultation expands the authority of Polish courts, instead of decreasing it.  The Tribunal also reached the conclusion that the pre-judicial consultation procedure would have a strengthening effect on the freedoms of the individual.

Bearing on the assignations embodied in the Constitutional Tribunal’s February 18, 2009 verdict in the case denoted Sygn. Akt Kp 2/08 and the position taken by the doctrine of Community law in relation to the jurisdiction of the ECJ within the scope of the Third Pillar, the Helsinki Foundation for Human Rights hopes that it will soon be possible for the President of Poland to submit a statement acknowledging the jurisdiction of the ECJ in terms of court and police cooperation during criminal cases.  The consequences of the lack of a possibility for pre-judicial consultation with the ECJ were pointed out, among others, by the Supreme Court in their aforementioned verdict, stating: „Unfortunately, Polish courts are deprived of the legal possibility for formulating pre-judicial questions to the ECJ on the basis of Article 35 of the TEU, as Poland has not yet issued a declaration acknowledging its’ adequacy  in terms of the institutions of the Third Pillar of the EU based on Article 35 of Act 2 of the TEU.  Meanwhile, the issue of using the European Union’s arrest directive in cases against minors is a question concerning the scope of the binding force and validity of the June 13, 2002 framework decision.  Keeping in mind this normative conditionality, the Supreme Court must take an independent position on said issue.”

Due to the fact that pre-judicial judgments in the Third Pillar of the EU involve, among other things, cases in which a statute is declared invalid, we are dealing with a situation during which such verdicts produce erga omnes effects which pertain to all of the member states of the EU, even those states that did not issue a statement acknowledging the adequacy of the ECJ.  To this date, the judicial decisions of the ECJ have included motions to invalidate legal acts drafted in the bounds of the Third Pillar; for example, a framework decision of the Council denoted 2002/584/WSiSW involving the European arrest directive and the procedure of transferring convicted citizens between member states.  Judgments pronounced as a result of pre-judicial questioning by the courts of individual member states led the ECJ to assess  the concordance of the issue of rescinding from the dual criminal responsibility requirement codified in the framework decision with the basic laws of the EU.  The ECJ came to the decision that removing the requirement to verify dual criminal responsibility does not violate the „no crime, no punishment without a previous penal law” maxim (see the May 3, 2007 verdict in the case (C-303/05)  of Advocaten voor de Wereld VZW vs. Leded van de Ministerrad).

Furthermore, a significant portion of the judgments given during the pre-judicial consultation procedure involved Article 54 of the Convention implementing the Schengen Agreement , which has raised many doubts in recent judicial practice.  One can get a sense of the complicated nature of the law by examining the fact that the ECJ has pronounced numerous judgments concerning the law. Based on their judgments in these cases, the ECJ concluded that the maxim stating „not twice for the same [offense]”is a fundamental right and that mutual acknowldgement of court judgments serves to strengthen the cooperation of EU member states as well as the rights of the individual.

Dur to the fact that the negative consequences of not depositing the statement acknowledging the jurisdiction of the ECJ in terms of third pillar cases will be reflected first and foremost in the rights and freedoms of individuals, chiefly citizens of the Republic of Poland, the best course of action seems to be an immediate usage by the President of Poland of the competences granted to him through Article 1 of the July 10, 2008 Act, i.e the deposition of a statement acknowledging the adequacy of the European Court of Justice in terms of cases concening te so-called third pillar of the EU.  In the assessment of the Helsinki Foundation for Human Rights, this will result in Polish courts gaining real influence on the judgments passed by the ECJ in terms of police and judicial cooperation in the criminal cases of the EU member states.  Maintaining the legal status quo, conversely, leads to the limitation, and occasionally deprivation, of Polish courts of that influence.

To conclude, the Helsinki Foundation for Human Rights hopes that the President of Poland  will, in the near future, decide to submit the statement required by Article 35 of Act 2 of the TEU, and in doing so will be instrumental in increasing the level at which human rights and liberites are protected.

Danuta Przywara,

Adam Bodnar