The case of Maciej Berek being physically pushed out of the entrance to the rooms intended for Constitutional Tribunal judges is only the most spectacular part of the proceedings conducted by a special team of the National Prosecutor's Office. Its entirety covers suspicions of failure to fulfill duties by public officials of the Tribunal, resulting in actions to the detriment of the private interest of judges and the public interest related to the proper functioning of the judiciary.
In these proceedings, in September, the director of the Constitutional Tribunal's Chancellery, Zofia H., and the Commander of the Tribunal Guard, Piotr P., were brought up on prosecutors' charges for preventing judges from taking up work who were not recognized by the President of the Constitutional Tribunal, Bogdan Święczkowski.
The president of the Tribunal himself is beyond the reach of investigators because he is protected by judicial immunity. Only the Tribunal can overturn it. To achieve this, an application from the prosecutor's office is needed, and investigators from the special group of the National Prosecutor's Office are working towards its preparation more and more quickly.
According to Święczkowski himself, the Tribunal currently consists of only 10 instead of 15 judges. To make a decision on his immunity, the General Assembly of Judges of the Constitutional Tribunal, including a majority of 8 judges who would support the prosecutor's motion, is needed. The problem is that the meeting can be convened by President Święczkowski or, in its case, Vice-President Sochański, but both of them are of the opinion that the five judges whose oaths were not accepted by the President did not take office, so they cannot participate in the Meeting. In turn, in a 10-person panel, accepted by the president and vice-president, there is no chance of obtaining 8 votes in favor of lifting Święczkowski's immunity.
The eight votes required for this purpose are held by judges elected by the current Sejm. The problem, however, is that five of them are not recognized by the president, and then by President Święczkowski. Recognizing them as full judges would almost automatically mean an attempt to replace the president even without resorting to waiving his immunity in connection with criminal proceedings. However, since it is Świeczkowski who decides who is and who is not a judge of the Constitutional Tribunal, the vicious circle of the tribunal is closing.
This morning, the Prime Minister, who had previously announced the solution to the problems with the Constitutional Tribunal before the holidays, stated that in the case of the Tribunal "everything is going according to plan, as we expected", but immediately afterwards said "I will not say anything more".
Things are certainly heading towards a crisis in which the simplest solution would be for President Święczkowski to convene the General Assembly of Constitutional Tribunal Judges by Vice-President Sochański, with the participation of all 15 judges elected by the Sejm. Other variants of the situation will raise much greater legal doubts and will certainly not close the dispute, but will only take it to another dimension.
The eight judges elected by coalition votes, although they constitute a majority in the 15-member Court, have still not indicated an effective way to prove this. The president, who blocked the five of them from taking the oath, did not indicate any solution to the problem, and the Sejm washed its hands of the matter after electing them, and for several weeks there has been a continuous demonstration in front of the Tribunal's building, the participants defending something that is increasingly difficult to describe.
No one intends to give in or even partially accept the opponent's arguments.
