WEBINAR 8: HUNGARY & POLAND - Criminal Liability of Poland’s Highest State Representatives
Monika CZECHOWSKA
23 November 2020
Every power corrupts and absolute power corrupts absolutely. This phrase by the English historian, politician, and writer Lord Acton is still valid, even though it was spoken over 100 years ago (Lord Acton was to use it for the first time in a letter to Bishop Mandell Creighton on April 3, 1887).
In democratic countries, one of the methods of preventing the omnipotence of the authorities is to subject their actions and omissions to judicial control, and, if necessary, to expose the representatives of the highest state organs to political, constitutional and criminal liability. For the purposes of this article, we will limit ourselves to constitutional and criminal liability, disregarding political liability.
In the Polish legal system, the constitutional and – to a certain extent also criminal – liability of representatives of the highest state organs is regulated by the Constitution of the Republic of Poland of April 2, 1997 (hereinafter, the Constitution) and also in the provisions of the Act of March 26, 1982 on the Tribunal of State (hereinafter, the Act on the Tribunal of State). Pursuant to the above-mentioned legal acts, constitutional responsibility is imposed before an authority called the Tribunal of State.
This blog post deals with the criminal liability of representatives of the highest state organs in the light of the Polish Constitution and the current situation in Poland. The aim is to analyze Polish legal solutions regarding the possibility of prosecution of representatives of the highest state organs for both violation of the Constitution or statutes, as well as for crimes committed in connection with the position held. The subject scope of the analysis will cover types of liability, the mode of prosecution before the State Tribunal, as well as the proceedings before the Tribunal and the types of sanctions imposed. In conclusion, the author will try to answer the question of whether the State Tribunal can be an effective tool to enforce constitutional responsibility, or whether it is only a “political sword hanging over the heads of the rulers.”
The Tribunal of State
The Tribunal of State - apart from the courts and the Constitutional Tribunal - is an authority that is separate and independent from other authorities. The Tribunal of State consists of the chairman (who is also the First President of the Supreme Court), 2 deputy chairmen and 16 members elected by the Parliament (Sejm) from outside the group of deputies and senators for the duration of the Sejm's term of office. The deputy presidents of the Tribunal and at least half of the members of the Tribunal of State should have the qualifications required to hold the office of judge. Moreover, according to Art. 199 sec. 3 of the Constitution, Members of the Tribunal of State in performing the function of judge of the Tribunal of State are independent and are subject only to the Constitution and statutes.
This independence of the members of the Tribunal of State is further strengthened by the immunity granted to them. A member of the Tribunal of State may not be held criminally responsible or deprived of liberty without the prior consent of the Tribunal of State. Moreover, a member of the Tribunal of State may not be detained or arrested, with the exception of being caught in the act of committing a crime, if his detention is necessary to ensure the proper course of the proceedings. The chairman of the Tribunal of State shall be notified each time and immediately about the detention, who may order the immediate release of the detained person.
Personal Scope of Liability before the Tribunal of State
In the light of Polish law, for violations of the constitution or statute, in connection with the position held or within the scope of their office, constitutional liability before the Tribunal of State is borne by:
the President of the Republic of Poland,
the Prime Minister and members of the Council of Ministers,
the President of the National Bank of Poland,
the President of the Supreme Audit Office,
members of the National Broadcasting Council,
persons entrusted with the management of the ministry by the Prime Minister, and
the Supreme Commander of the Armed Forces.
In addition, deputies and senators also bear constitutional responsibility before the Tribunal of State. However, the constitutional responsibility of members of parliament is limited to situations consisting in running a business with the benefits from the property of the State Treasury or local government, as well as with the acquisition of such property.
The above catalog of subjects that may be held accountable to the State Tribunal is a numerus clausus, which means that no one else can be held constitutionally liable before the Tribunal of State. In other words, it is not possible to extend the scope of accountability to other office-holders. The only exception to this rule is in Art. 2 sec. 3 of the Act of Tribunal of State. It follows from this provision that constitutional responsibility before the Tribunal of State may also be borne, respectively, by the Marshal of the Sejm and the Marshal of the Senate, who temporarily perform the duties of the President.
Objective Scope of Responsibility before the Tribunal of State
The material scope of responsibility before the Tribunal is also limited. In the doctrine, the totality of behaviors the committing of which actualizes constitutional responsibility before the Tribunal of State is called a constitutional tort. This term is understood as an act or omission consisting in a breach of the Constitution or a statute, which is made in connection with the position held in the field of office.
It should be emphasized at this point that the concept of 'constitutional tort' is not the same as the concept of 'crime' used by the penal code, even though the scopes of application of these terms may overlap. As pointed out by the Constitutional Tribunal in its judgment of February 21, 2001 (reference number: P 12/00), the concept of "constitutional tort" cannot also be treated as a broader concept, “consuming” a crime. Constitutional liability and liability “for a crime” are two different regimes of liability that may, in certain constitutional situations, be applied simultaneously by the Tribunal of State to the same persons.
Moving on to the specific scopes of responsibility of individual representatives of the highest state organs, it should be noted that the scope of this responsibility is subject to differentiation. And so, the President of the Republic of Poland is definitely the office-holder most responsible before the Tribunal of State. According to art. 145 of the Constitution, the President of the Republic of Poland is responsible for the violation of the Constitution, statute or for committing a crime.
It is important that the President's liability before the Constitutional Tribunal covers all crimes committed during his term of office, and not only those committed in connection with the exercise of this office. The above means that the responsibility of the President before the Tribunal of State is sole and complete. Leaving within the jurisdiction of the Tribunal of State to judge the President's responsibility also for committing common crimes is a ‘judicial privilege’, as it is a departure from the principle of equality before the law. Moreover it is also an exception to the rule that adjudication on criminal liability is the domain of common courts.
A slightly narrower scope of responsibility before the Tribunal of State has been introduced in relation to Members of the Council of Ministers. Pursuant to Art. 156 of the Constitution, they are responsible before the Tribunal of State for violations of the Constitution or statutes, as well as for offenses committed in connection with their position. In relation to this category of persons, we are talking about the partial and competitive jurisdiction of the Tribunal of State in criminal cases. This means that only crimes committed in connection with the position held may be liable to a Member of the Council of Ministers before the Tribunal of State.
On the other hand, the remaining representatives of the highest state bodies are solely constitutionally responsible before the State Tribunal. These are:
the President of the National Bank of Poland,
the President of the Supreme Audit Office,
members of the National Broadcasting Council,
persons entrusted with the management of the ministry by the Prime Minister, and
the Supreme Commander of the Armed Forces.
It should be pointed out that such distinction in terms of responsibility for a crime and granting the Tribunal of the State of criminal jurisdiction in relation to crimes committed by the President and members of the Council of Ministers and, in a way, removing them from the jurisdiction of common courts results from the systemic position of these organs.
Procedure of Proceedings before the Tribunal of State
The procedure for initiating proceedings before the Tribunal of State also differs significantly from the common criminal procedure. In order to initiate proceedings before the Tribunal of State, it is not enough to commit a constitutional tort or commit a crime by the President or a member of the Council of Ministers. A necessary condition for the initiation of the appropriate procedure is the submission of a relevant request by the competent authority. If the President of the Republic is indicted, it is necessary to adopt a relevant resolution by the National Assembly (by a majority of at least two-thirds of the votes of the statutory number of members of the National Assembly) at the request of at least 140 members of the National Assembly.
On the other hand, bringing a member of the Council of Ministers to account before the Tribunal of State requires a resolution of the Sejm adopted at the request of the President of the Republic of Poland or at least 115 deputies by a majority of three-fifths of the statutory number of deputies. On the other hand, bringing other representatives of the highest state organs to justice before the tribunal of State depends on the initiation of proceedings by a minimum of 115 deputies or the President of the Republic of Poland. Moreover, it is necessary to adopt a relevant resolution by the Sejm by an absolute majority of votes in the presence of a quorum.
Consequently, the initiation of criminal liability before the Tribunal of State each time depends on a resolution of the Sejm or the National Assembly, whose members still have a significant impact on the selection of the composition of the Tribunal of State, probably contributes to the low effectiveness of the Tribunal.
Concluding Remarks
The possibility of bringing representatives of the highest state authorities to account before the Tribunal of State is undoubtedly one of the most important elements of the system of constitutional measures to protect the rule of law. However, the very manner of initiating proceedings before the Tribunal of State, as well as the manner of selecting a significant number of its members raises questions about the effectiveness of this institution.
Not infrequently, the doctrine indicates that in its present form the Tribunal of State is rather a “sword over the heads of the rulers” or a “court that does not adjudicate”, than an institution exercising real control over the observance of the Constitution and laws by the rulers. There is no way to argue with this view, because significantly, despite the fact that the Tribunal of State has been operating under Polish law for a century (the institution of constitutional responsibility was introduced by the March Constitution, adopted in 1921), so far only a few proceedings were pending before it, of which only two ended the conviction.
Nevertheless, it seems that this unique organ should exist despite its faint activity. However, in the longer term, it would be necessary to consider solutions that would improve the effectiveness of initiating the procedure before the Tribunal of State and eliminate doubts as to the facade nature of the constitutional responsibility borne by politicians.
Monika Czechowska is a Doctoral Candidate at the Department of Criminal Law, University of Wrocław, Poland; trainee advocate; representative of the University of Wrocław on the international rounds of the Phillip C. Jessup International Law Moot Court Competition (Washington D.C. 2017) and the Leiden Sarin International Air Law Moot Court Competition (Seoul, 2018). Her scientific and research interests concern criminal law (primarily criminal economic law), international law and human rights. E-mail: monika.czechowska@uwr.edu.pl.