The anti-crisis law, as we all know, was enacted extremely quickly, which was necessary in view of the situation in which the economy was placed around the world. Unfortunately, the quality was not high.
As the Ombudsman points out, shields introduced 31 March 2020, 16 April 2020, 14 May 2020 and 19 June 2020, are not compatible with the Constitution.
The Ombudsman draws attention to the special procedure that must be taken into account when amending the Criminal Code, the Criminal Procedure Code, the Code of Offences, the Tax Criminal Code, the Implementing Criminal Code, the Civil Code, the Code of Civil Procedure, the Code of Commercial Companies and the Code of Administrative Procedure.
Shields changed the records of all of these codes, while failing to keep procedures.
The Rules of Procedure of the Sejm provide for minimum deadlines which must expire before individual readings of the Act and the possibility of setting up an Extraordinary Commission.
For all four The contested laws did not comply with the time limits resulting from the Rules of Procedure of the Sejm. Nor was the Extraordinary Commission appointed
And so by Article 89(2) the Rules of Procedure of the Sejm, first reading of draft amendments to the Code may take place no earlier than the fourteenth day following delivery of the draft to Members. For its consideration, according to Article 90(1) Rules of Procedure of the Sejm, the Extraordinary Commission may be appointed.
Subject to Article 95(1) the Rules of Procedure of the Sejm, second a project reading may take place no earlier than fourteenth from the date of service to the Members of the Extraordinary Commission report.
Article 95(2) provides, furthermore, that in the case of notification in second reading the amendment or the proposal, the proposal goes back to the Extraordinary Commission.
The purpose of this particular order is to ensure the consistency of the Codex rules developed by professionals. It is also about eliminating the possibility of an accidental amendment of the Code when adopting specific laws, which could be carried out by means of hasty and disintegrating draft parliamentary amendments – points out RPO, Adam Bodnar.
For all four The contested laws did not comply with the time limits resulting from the Rules of Procedure of the Sejm. Nor was the Extraordinary Commission appointed.
It was incompatible with Article 7 The Constitution that "public authorities operate on the basis and within the limits of the law". Moreover, it was contrary to Article 112 Constitution.
He points out that "the internal organisation and the order of work of the Sejm and the procedure for the appointment and operation of its organs, as well as the manner in which the constitutional and statutory duties of the state authorities towards the Sejm are carried out, shall be determined by the Rules of Procedure of the Sejm adopted by the Sejm".
Meanwhile 14 July 2020 The Constitutional Court issued a judgment (reference no. Kp 1/19) from the request of the President of the Republic of Poland for non-compliance with the Constitution of the Act on 13 June 2019 to amend the Criminal Code and certain other laws, introducing a comprehensive revision of the Criminal Code.
The Court held that the law was in full incompatible with Article 7 with regard to Article 112 and Article 119(1) The Constitution – precisely because of the violation of the Rules of Procedure of the Sejm in the course of its adoption, in particular the failure to comply with the deadlines required for the adoption of draft amending codes.
Although the Sejm may change its rules of procedure at any time, until it does, it is bound by the current rules of procedure – as the Constitutional Tribunal stressed. Infringement of these Rules in the course of the adoption of the Act is therefore a violation of the Constitution.
Analogue situation in four Act under appeal by the RPO.
Act of 19 June 2020 not only duplicated in part the unconstitutional bill of 13 June 2019, but it also duplicates the drawbacks of its adoption mode
Act of 19 June 2020 not only duplicated in part the unconstitutional bill of 13 June 2019, but it also replicates the drawbacks of its adoption mode.
In both of these laws there were, among others, provisions on the amendment of the rule of isolation penalties as ultima ratio – Article 37a K.k., continuous action – Article 57b K.k. and theft especially impudent – Article 115(9a).
Especially criticized first from these regulations. It limited the courts the freedom to rule on the possibility of waiving the sentence of imprisonment for criminal offences punishable by penalties to 8 years of prison (e.g. manslaughter or serious injury). The medical community expressed concern that this may mean more frequent imprisonment for malpractice.
The amendments to the Criminal Code do not combine in any substantive way with the matter of the Act with 19 June 2020 It is the Act ‘on advances to interest rates on bank loans granted to provide financial liquidity to entrepreneurs affected by the effects COVID-19”.
In addition, in the case of amendments to the Criminal Code in the Act of 31 March 2020 The spokesman accused the absence of any vacatio legis. The new provisions began to apply as early as the date of publication of the Act. This breached the obligation to correctly publish the normative act (Article 2 and Article 88(1) Constitution).
In turn with regard to some of the changes made to the Criminal Code in the Act of 19 June 2020 The Ombudsman alleged a breach of the principle third reading the bill - through the introduction of important amendments after first reading. This has breached constitutional requirements for the notification of a legislative initiative (Article 118(1) and Article 119(1) Constitution).
The introduction of amendments to the criminal laws with "anti-crisis shields" can therefore be accused of instrumental use of the epidemic situation for unthought-out changes to the sanctioning system and thus of a flagrant violation of the principle of correct legislation based on the principle of a democratic rule of law (Article 2 Constitution).
In a normal constitutional legislative process, these changes would have to be given an in-depth analysis and reflection. This would probably mean that they would either not be passed, or not be passed in the final form,” says Adam Bodnar in his motion to the Constitutional Tribunal.