Commissioner for Human Rights withdrew from the Constitutional Tribunal the motion of the of 11 July 2016 for declaring certain provisions of the Act of 10 June 2017 on Counter-Terrorism Measures inconsistent with the Constitution. 

Procedural document

      Pursuant to Article 56(2)(1) and Article 56(3) of the Act of 30 November 2016 on the organization and conduct of proceedings before the Constitutional Tribunal (Dz. U. [Journal of Laws], item 2072), I hereby withdraw the motion of the Commissioner for Human Rights of 11 July 2016 (ref. no. K35/16) and I request the Tribunal to terminate the related proceedings (Article 59 (1)(1) of the Act of 30 November 2016 on the organization and conduct of proceedings before the Constitutional Tribunal).

Rationale

1.  According to Article 208(1) of the Constitution of the Republic of Poland, the Commissioner for Human Rights shall safeguard the freedoms and rights of persons and citizens, as specified in the Constitution and other normative acts. Before the assumption of his/her duties, the Commissioner takes an oath before the Sejm of the Republic of Poland to faithfully follow the Constitution of the Republic of Poland, to safeguard human and civil freedoms and rights, and to comply with the law and the principles of social co-existence and social justice. The Commissioner also pledges to perform his/her duties impartially with utmost conscientiousness and diligence, to protect the dignity of the office held and to maintain confidentiality as required under the law.

The possibility for the Commissioner to initiate proceedings before the Constitutional Tribunal is one of the tools used in performing the tasks entrusted to him/her by the Constitution of the Republic of Poland and the Act of 15 July 1987 on the Commissioner for Human Rights (Dz. U. [Journal of Laws] of 2017, item 958, as amended). By initiating abstract review of legislation the Commissioner may raise claims concerning its inconsistence with the constitutional values and principles, and raise issues related to the protection of human rights, without the need to relate them to specific individual judgments. By filing a motion with the Constitutional Tribunal, the Commissioner for Human Rights states that in his opinion, specific legal solutions provided for under the Polish legislation raise doubts as to their compliance with the Constitution of the Republic of Poland. The Commissioner for Human Rights never submits his motions hastily. He always does it in a responsible manner and after thorough consideration of all applicable arguments.

Similarly, the Commissioner for Human Rights, having analysed reasons relating to the care for the common good and the protection of the constitutional values, may consider it necessary to withdraw his motion from the Constitutional Tribunal, also in a situation when, before the issuance of a judgment on the case, no legislative changes have taken place and no change in the interpretation of the provisions in question has been introduced that would have resolved the Commissioner’s doubts regarding the compliance with the Constitution.

On 11 July 2016, the Commissioner for Human Rights filed a motion for declaring certain provisions of the Act of 10 June 2017 on Counter-Terrorism Measures (Dz. U. [Journal of Laws], item 904) inconsistent with the Constitution. Without questioning in any way the need to grant, to specific state services, the powers which make it possible for them to carry out the tasks necessary to ensure the security of the state and its citizens, the Commissioner pointed to the constitutionally-grounded necessity to meet the requirements that justify the limitation of, e.g., the right to privacy and other rights arising from the Constitution of the Republic of Poland, the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union.

Until today, no changes to the aforementioned Act have been introduced that would have removed the doubts described in the Commissioner’s motion. Neither does this procedural document describe any arguments relating to the substantive content of the Act on Counter-Terrorism Measures, that would have caused a change in the Commissioner’s position on the issue, as such arguments cannot be presented. However, the circumstances regarding the composition of the Constitutional Tribunal’s panel appointed to adjudicate in the case in question require the Commissioner for Human Rights, who is guided by the common good and the need to protect human and civil rights, as well as by the Constitution of the Republic of Poland and the oath taken by him, to submit the present procedural document withdrawing the motion relating to the Act on Counter-Terrorism Measures.

2.    The withdrawal of the motion by the Commissioner for Human Rights has been caused by the circumstances regarding the composition of the Constitutional Tribunal’s panel appointed to adjudicate in the case of the Act on Counter-Terrorism Measures. The circumstances entail a threat to civil rights and freedoms, in particular to the right to fair and just trial, referred to in Article 45 of the Constitution of the Republic of Poland, and to the principles of a democratic state of law, referred to in Article 2 of the Constitution of the Republic of Poland, that are discussed herein below.

     Allow me to recall that on 18 July 2016, the Commissioner was informed by the President of the Constitutional Tribunal of the initiation of proceedings in the case in question and of the fact that the case would be examined by the Constitutional Tribunal sitting in full court. In his letter dated 14 November 2017, President of the adjudicating panel Andrzej Rzepliński forwarded to the Commissioner a copy of the letter of Inspector General for Personal Data Protection, which had been sent to the Constitutional Tribunal in connection with the motion under consideration. In his letter of 20 December 2017 Michał Warciński, Chairman of the adjudicating panel forwarded to the Commissioner a copy of the statement of position on the case, taken by the Sejm of the Republic of Poland. In his letter of 13 February 2018 Jarosław Wyrembak, Chairman of the adjudicating panel forwarded to the Commissioner a copy of the statement of position on the case, taken by the Prosecutor General. On 24 April 2017 Jarosław Wyrembak, Chairman of the adjudicating panel informed the Commissioner that his motion would be examined in a closed session on 24 May 2018 and that the related judgment of the Constitutional Tribunal would also be announced on 24 May 2018.

     The above correspondence demonstrates that changes were made not only of the Chairman of the adjudicating panel, but also of the entire composition of the adjudicating panel of the Constitutional Tribunal. The full-court panel of the Constitutional Tribunal was replaced with a five-person panel which, according to the notification sent to the Commissioner on 24 April 2018, included, finally, three persons not authorized to adjudicate as judges of the Constitutional Tribunal: Mr Mariusz Muszyński, Mr Justyn Piskorski and Mr Jarosław Wyrembak.

     The situation described above has revealed two key problems that the Commissioner for Human Rights, being guided by the good of the citizens, should mention, also in relation to the Act on Counter-Terrorism Measures (and that have been mentioned previously in a procedural document by way of which the CHR withdrew his motion in the case no. K 9/16).

     Firstly, in the opinion of the Commissioner for Human Rights, there has been no legal basis for the aforementioned change in the composition of the adjudicating panel. According to Article 9(2) of the Act of 13 December 2016 implementing the Act on the organization and conduct of proceedings before the Constitutional Tribunal and the Act on the status of judges of the Constitutional Tribunal (Dz. U. [Journal of Laws], item 2074), procedural activities carried out as part of proceedings initiated but not completed before the entry into force of the Act of 30 November 2016 on the organization and conduct of proceedings before the Constitutional Tribunal (Dz. U. [Journal of Laws], item 2072) shall remain valid. This means that in the case in question, the decision on the composition of the Constitutional Tribunal’s adjudicating panel to sit in full court also remains valid. The lack of a legal basis for the aforementioned changes in the composition of the adjudicating panel is also confirmed by the fact that they were not notified to the Commissioner, as a complainant, by the President of the Constitutional Tribunal.

No provision of the Act on the organization and conduct of proceedings before the Constitutional Tribunal permits the introduction of any changes to the already appointed composition of the panel scheduled to adjudicate in a given case. According to Article 38(1) of the Act, judges-members of the adjudicating panel, including the panel’s Chairman and judge-rapporteur, are appointed by the President of the Constitutional Tribunal in the alphabetical-order system, taking into account the types, numbers and chronology of cases lodged with the Constitutional Tribunal. The President of the Tribunal may, in justified cases, in particular when so required by the subject matter to be examined, appoint a judge-rapporteur without the need to meet those criteria (see Article 38(2) of the Act on the organization and conduct of proceedings before the Constitutional Tribunal). However, the powers of the Tribunal’s President do not include the power to change the composition of an existing adjudicating panel that has already been appointed. In such cases, that is when the panel composition has already been determined, the Tribunal President’s powers are renewed only in the cases laid down in the legislation (i.e. the expiry of a judge's term of office – see Article 18 of the Act of 30 November 2016 on the status of judges of the Constitutional Tribunal, Dz. U. [Journal of Laws], item 2073; and the exclusion of a judge from the panel – see Articles 39-41 of the Act on the organization and conduct of proceedings before the Constitutional Tribunal).

It needs to be explicitly emphasized that according to Article 7 of the Constitution of the Republic of Poland, public authorities shall operate on the basis of the law and within its boundaries. This provision of the Constitution clearly gives rise to the requirement for the powers of individual bodies to be determined in relevant commonly binding law, and to the prohibition for such powers to be presumed and to be exercised and independently determined in an arbitrary manner (see: commentary on Article 7 of the Constitution of the Republic of Poland, ed. L. Bosek and M. Safjan, Warsaw, 2016, Legalis). The aforementioned requirement is reflected in the jurisprudence of the Constitutional Tribunal itself, which stated that "according to Article 7 of the Constitution, public authorities shall operate on the basis of the law and within its boundaries. This means, inter alia, that the powers of public authorities should be clearly and precisely defined in relevant legislation, that all activities of public authorities should be based on such legislation and that where interpretation-related doubts exist, public authorities’ powers may not be presumed. "(see: the Constitutional Tribunal’s judgment of 14.6.2006 in the case no. K 53/05, OTK-A [Journal of the Constitutional Tribunal Judgments] of 2006, No. 6, item 660). Therefore, it may not be presumed that the President of the Constitutional Tribunal is authorized to introduce changes or to take unjustified decisions regarding the composition of a panel that has been scheduled to adjudicate in a particular case. In the opinion of the Commissioner for Human Rights, it is not acceptable either to refer, by way of analogy, to cases that have been adjudicated upon under the former acts of Parliament that regulated the operation of the Constitutional Tribunal in the past.

Secondly, in the case in question, the composition of the adjudicating panel was determined by the President of the Constitutional Tribunal in a manner that was against the law. i.e. in a manner entailing a situation in which the panel included a person not authorized to a member thereof (see: Code of Civil Procedure, Commentary, vol. 1, edited by M. Manowska, LexisNexis, Warsaw, 2011, p. 713). Such circumstances occurred because the composition of the Constitutional Tribunal was against the highest-level legislation i.e. the Constitution of the Republic of Poland.

It should be recalled that by way of the resolutions of 2 December 2015 on the election of judges of the Constitutional Tribunal, the following persons were elected as judges of the Constitutional Tribunal: Mariusz Muszyński (MP, item 1184), Lech Morawski (MP, item 1183) and Henryk Cioch (MP, item 1182). Those resolutions were an attempt, taken by the Sejm in its 8th term of office, to elect M. Muszyński, H. Cioch and L. Morawski as judges of the Constitutional Tribunal although their judicial positions had already been filled by other persons in a proper manner.

By way of its resolution of 15 September 2017 on the election of a judge of the Constitutional Tribunal (MP, item 873), the Sejm of the Republic of Poland, acting pursuant to Article 194(1) of the Constitution of the Republic of Poland, Article 2(2), first sentence, of the Act of 30 November 2016 on the status of judges of the Constitutional Tribunal (Journal of Laws, item 2073) and Article 31(1) of the Rules of Procedure of the Sejm of the Republic of Poland, elected Justyn Pisorski to replace late Lech Morawski as a judge of the Tribunal.

By way of its resolution of 26 January 2018 on the election of a judge of the Constitutional Tribunal (MP, item 134), the Sejm of the Republic of Poland, , acting pursuant to Article 194(1) of the Constitution of the Republic of Poland, Article 2(2), first sentence, of the Act of 30 November 2016 on the status of judges of the Constitutional Tribunal (Journal of Laws, item 2073) and Article 31(1) of the Rules of Procedure of the Sejm of the Republic of Poland, elected Jarosław Wyrembak to replace late Henryk Cioch as a judge of the Tribunal.

The correctness of the procedure that was followed by the Sejm in its 7th term of office in electing the Constitutional Tribunal’s three judges mentioned in the resolutions of 8 October 2015 on the appointment of judges of the Constitutional Tribunal (MP, items 1038-1040), who commenced their term of office on 7 November 2015, has been confirmed by four judgments of the Tribunal (judgment of 3 December 2015, ref. no. K 34/15, judgment of 9 March 2016, ref. no. K 47/15, judgment of 11 August 2016, ref. no. K 39/16, and ruling of 7 January 2016, ref. no. U 8/15).

In its judgment of 3 December 2015 (ref. no. K 34/15), the Constitutional Tribunal concluded that the status of a CT judge is awarded when the Sejm’s procedure of candidate election as a CT judge comes to an end, which, in the case in question, took place on 8 October 2015. The Constitutional Tribunal also emphasized that the relevant resolution of the Sejm is final and that it is not subject to change. As a result, the Sejm may not annul the judge-election process it has conducted, consider it null and void, irrelevant or regularize it on a later date.

In the light of Article 194(1) of the Constitution of the Republic of Poland, the Sejm's power to elect a judge is renewed only when there appears a vacant position of a judge, that needs to be filled. Given that the term of office of the judges elected on 8 October 2015 was just starting, the Sejm did not have the right to use its power set out in Article 194(1) of the Constitution of the Republic of Poland in order to elect Mariusz Muszyński, Henryk Cioch and Lech Morawski as CT judges or, later, in order to elect Justyn Piskorski and Jarosław Wyrembak as CT judges. This fact is confirmed by the Constitutional Tribunal’s judgments mentioned earlier herein. Those judgments are still binding and final (see: Article 190(1) of the Constitution of the Republic of Poland). According to the Act, it is not possible to derogate Article 194(1) of the Constitution of the Republic of Poland, according to which the Constitutional Tribunal is composed of 15 judges. It has been rightly pointed out (see: M. Florczak-Wątor, P. Mikuli, “A jednak premier nie miała racji” [“And yet, the prime minister was not right"], Rzeczpospolita daily newspaper of 28 December 2017, A19), that (...) the Sejm has no power to elect a freely determined number of judges of the Constitutional Tribunal. It may only elect 15 judges, regardless of whether the president accepts their oaths or not. The election of the Tribunal judges, and the acceptance of the judges’ oaths, are two separate powers vested in two different bodies; thus, the legality of actions of those bodies should be assessed separately and independently for each of them. No person elected by the Sejm as a CT judge, in excess of the number of CT judges, as determined in the Constitution, may be considered a CHT judge as the Sejm has no power to elect such a judge if: the term of office of a previously elected CT judge has not yet expired; or a previously elected judge’s mandate has not been annulled before the end of the term. This principle may not be changed even by the fact that in Article 18(2) and Article 21(2) of the Act of 13 December 2016 implementing the Act on the organization and conduct of proceedings before the Constitutional Tribunal and the Act on the status of judges of the Constitutional Tribunal (Dz. U. [Journal of Laws], item 2074) the legislator made another attempt to change the composition of the Constitutional Tribunal by failing to include the judges who had been properly elected by the Sejm in its 7th term of office, and by replacing them with persons elected by the Sejm in its 8th term of office. That was against the Constitution of the Republic of Poland as the newly elected persons were elected to positions that were already filled by other persons.

The above-mentioned circumstances have forced the Commissioner to withdraw his motion of 11 July 2016 (ref. no. K 35/16).

The withdrawal decision is justified by the fact that the changes made in the composition of the Constitutional Tribunal’s adjudicating panel were not based on binding provisions of the law, and by the fact that persons appointed as members of the adjudicating panel are not authorized to adjudicate as judges of the Constitutional Tribunal.

It should also be emphasized that in the case in question, the decision to examine the case in a closed session of the Constitutional Tribunal has made it impossible for the Commissioner to file a motion for excluding the three judges from the process of adjudicating on the case. According to Article 56(3) of the Act on the organization and conduct of proceedings before the Constitutional Tribunal, if a case is examined in a closed session, then the withdrawal of any motion, legal question or complaint concerning non-compliance with the Constitution is possible only within 7 days of the delivery of the notification referred to in Article 92(3) of the Act. The Constitutional Tribunal’s notification that case no. K 35/16 will be examined in a closed session was received by the Office of the Commissioner on 24 April 2018. This means that the Commissioner’s motion for excluding the persons who are not authorized to adjudicate as CT judges would be examined after the deadline specified in Article 56(3) of the Act on the organization and conduct of proceedings before the Constitutional Tribunal as a deadline for motion withdrawal. Consequently, it would not be possible to fulfil the principle of disposability which is the main principle enjoyed by claimants in proceedings before the Constitutional Tribunal. It should also be emphasized that the Commissioner’s arguments regarding the impossibility to accept judgments issued by persons who are not authorized to adjudicate as CT judges are grounded in the political system of the Republic of Poland, in its Constitution and the existing judgments of the Constitutional Tribunal, and are therefore of key significance for ensuring proper guarantees of civil rights laid down in normative acts and guarded by the Commissioner for Human Rights in accordance with the Constitution of the Republic of Poland.

3. When taking the decision to withdraw his motion, the Commissioner had to carefully analyse the circumstances in support of that decision. The final decision has been taken bearing in mind the risks to the protection of human and civil rights and freedoms, which risks may occur, also in the described case, if judgments are issued by an incorrectly composed adjudicating panel of the Constitutional Tribunal. The resolution of the case in question by an incorrectly composed adjudicating panel of the Constitutional Tribunal might lead solely to greater legal uncertainty in Poland and, consequently, to increasingly serious violation of civil rights.

First of all, it should be emphasized that the right to court is protected by the Constitution, according to Article 45(1) of the Constitution of the Republic of Poland, which stipulates that everyone has the right to a fair and public hearing, held without unreasonable delay, by a competent, impartial and independent court. The Constitutional Tribunal in its judgment ref. no. K 8/91 of 7 January 1992 stated that one of the fundamental assumptions of a democratic state of law is the principle of citizens' access to court, making it possible for them to seek protection of their interests before an independent body whose operation is governed solely by the laws in force in the country. In its jurisprudence, the Constitutional Tribunal has indicated that the main elements of the right to court are in particular: the right of access to a court (the right to commence the procedure), the right to appropriately conducted proceeding (in accordance with the requirements of fairness and openness) and the right to a court judgment (the right to a binding resolution of the case); see the following judgments of the Constitutional Tribunal: of 9 June 1998, ref. no. K 28/97; of 16 March 1999, ref. no. SK 19/98, and of 10 May 2000, ref. no. K 21/99. Additionally, in its judgment of 24 October 2007, ref. no. SK 7/06, the Constitutional Tribunal pointed out that an element which is of great significance in the right to court is the right to properly composed judicial bodies that examine the case.

The Constitutional Tribunal, in general, is not considered by the Constitution of the Republic of Poland as having the same status as other courts. Yet, according to Article 10(2) of the Constitution, it constitutes an element of the judiciary system of Poland. The independence and impartiality of the courts and the Constitutional Tribunal, which form a separate and independent branch of power (see Article 173 of the Constitution of the Republic of Poland), is a standard that is commonly recognized in Europe. However, the issue of independence and impartiality of the courts and the Constitutional Tribunal should be viewed from the perspective of their constitutional obligation to protect the rights of individuals. Only a body that is impartial and independent of the legislative branch of power may effectively protect the rights of individuals. In view of the above, the protection of the independence and impartiality of the judiciary, including the independence and impartiality of the Constitutional Tribunal, is an inseparable element of the protection of human and civil rights, in particular the right to court, which, in the Commissioner's view, justifies the need to take action in the event of a risk that a judgment may be issued by the Constitutional Tribunal’s adjudicating panel which has not been composed in a correct manner.

The issuance of judgments by the Constitutional Tribunal’s adjudicating panels which have not been composed in a correct manner may make the judgments defective, and may even lead to a situation in which such a judgment will not be considered a binding judgment of the Constitutional Tribunal. As follows from the case law of the Supreme Court (the Supreme Court’s judgment of 17 November 2005, ref. no. I CK 298/05), in cases where judgments have been issued by a panel incorrectly composed, we may think of non-existent judgments (sententia non existens). As follows from the aforementioned judgment of the Supreme Court: "The term non-existent judgments generally applies only to such judgments which have been issued by unauthorized persons (who are not judges), issued without conducting a proceeding (in non-existing proceedings), or issued without ensuring the essential features required under the applicable act of Parliament (for example, without determining any resolution, or without the resolution signed by the members of th adjudicating panel)".

Such situations may bring about a legal chaos, and the issued judgments may be questioned by the parties’ proxies not only during proceedings before courts of other EU Member States, but also in complaints to the European Court of Human Rights (ECHR). It should be sufficient to remind at this point that the argument concerning incorrect composition of the Constitutional Tribunal’s adjudicating panel has already been raised in the complaint of the Polish Autocephalous Orthodox Church in its complaint against Poland (complaint no. 31994/03, judgment of 27 April 2010). In that case, the ECHR did not issue any ruling due to the change in the legal situation, but the European Court of Human Rights had no doubts with regard to its jurisdiction in the case. It is possible, therefore, to lodge complaints in which the argument concerning the incorrect composition of the Constitutional Tribunal will be recognized by the ECHR in the context of a possible violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is worth noting that the Commissioner’s withdrawal of his motion in the case planned to be examined by an incorrectly composed adjudicating panel of the Constitutional Tribunal will contribute not only to preventing legal uncertainty that might be caused by the Constitutional Tribunal’s judgment issued in such a manner and thus exerting a negative impact on civil rights, but also to the protection of the common good of all citizens hat is the Republic of Poland (see: Article 1 of the Constitution of the Republic of Poland) against the statement that Poland violates international law, that might be expressed by an international judicial body.

In this context it should be reminded that the issue of incorrect composition of the Constitutional Tribunal is referred to in the opinions and positions of the European Union institutions and of international bodies. It is sufficient to note that in its reasoned proposal of 20 December 2017 (document no. C0M (2017) 835 final) regarding the rule of law in Poland, the European Commission emphasized that the judgments of the Constitutional Tribunal of 3 and 9 December 2015 were still not implemented by Poland. The failure to implement the recommendations of the European Commission for Poland, including with regard to the possibility for the correctly appointed judges to adjudicate, has led to the Commission’s aforementioned evaluation of the situation and to launching, pursuant the provisions of the Treaty, of the procedure provided for in Article 7(1) of the Treaty on European Union to which Poland is a party and the provisions of which it is required to respect, also in line with Article 9 of the Constitution of the Republic of Poland. The evaluation by the Commission may also constitute an argument for the parties 'proxies and for courts in cases pending before the courts of other EU Member States as regards the possibility to undermine the correctness of the Constitutional Tribunal's judgments (see, for example, the Irish court's rationale of its question referred for preliminary ruling to the EU Court of Justice in Case C-216/18 PPU Artur Celmer).

The requirement for public authorities to cooperate is expressed in the preamble to the Constitution of the Republic of Poland in which the Constitution is defined as "the main law of the State, based on the respect for freedom and justice, cooperation of public authorities, social dialogue and the principle of subsidiarity in strengthening the rights of citizens and their communities”. The cooperation of public authorities is one of the foundations of a democratic state of law. The Commissioner and the Constitutional Tribunal are equally bound by the principle of cooperation of public authorities. The obligation of mutual cooperation, connected with the commonly applicable principle of "mutual supportiveness" may fulfilled solely when the state administration bodies perform their functions in accordance with the law including, in particular, the Constitution of the Republic of Poland. Undoubtedly, as rightly noted in the literature, actions of public authorities must be accompanied by their awareness that the aim of their actions is to ensure the good of Poland and the well-being of its citizens (see: W. Brzozowski, Współdziałanie władz publicznych [Cooperation of public authorities], "Państwo i Pawo", 2010 , No. 2). Persons who hold high-level functions in the state’s public authorities, including the Commissioner for Human Rights, should feel responsible for the state, which does not mean that their obligation to cooperate should be performed "blindly" and regardless of whether or not the Constitution of the Republic of Poland is respected by the other authorities. It needs to be emphasized that the Commissioner is a body that is independent of other authorities, including the judiciary. The requirement of mutual cooperation of public authorities should not be understood in a way that would compromise the independence of the CHR and require him to forget about his fundamental function of protecting human and civil rights. Certain public authorities have deliberately been made independent by the legislator. Therefore, the requirement laid down in the preamble to the Constitution of the Republic of Poland should not be interpreted as the requirement to give up one’s independence and to cooperate with authorities of which independence should be maintained, such as courts and tribunals, and to act in a manner expected by the other authorities. It should also be noted that the Commissioner should, as a rule, remain to some extent "in opposition" to the other authorities and to carry out tasks relating to their supervision and to ensuring legal protection. So-understood role of public authorities in the system of state is supported primarily by their functions (competencies) and the stability of the authorities throughout their terms of office, in particular when it is clearly separate from the term of office of the founding authority.

In conclusion, it should be reminded that the oath taken by me as Commissioner for Human Rights requires me to maintain impartiality, conscientiousness, diligence and dignity. In particular, the Commissioner’s obligation of conscientiousness requires him/her to carefully analyse every case, and to seek a solution that is the best one from the point of view of the protection of human and civil rights and freedoms. The dignity of the Commissioner’s office, protected by the Constitution, requires the Commissioner to act in accordance with his/her conscience and the high rank of the office.

Thus, in view of the oath taken by me, the necessity to choose the less disadvantageous solution which is the maintenance of the validity of the provisions of the Act whose consistency with the Constitution of the Republic of Poland remains doubtful, the possibility of undermining the legal certainty and of increasing the legal chaos by leading to a situation in which a judgment is issued by the Constitutional Tribunal’s adjudicating panel that includes persons not authorized to adjudicate as the Tribunal’s judges, I fell forced to withdraw my motion filed in the case no. K 35/16.

I also do hope that in the nearest future the legislator will take measures to ensure the compliance of the Act on Counter-Terrorism Measures with the Constitution of the Republic of Poland and with international law. The Commissioner for Human Rights trusts that his cooperation with other authorities, including ones empowered to take legislative initiative, will lead us to a situation in which civil rights in the area relevant to the present case will be fully respected. I would like to emphasize that the withdrawal of my motion filed in the case in question does not mean that as Commissioner for Human Rights I will neglect the possibility to take other steps, more effective from the point of view of the protection of civil rights, as provided for by the Act on the CHR and the Constitution of the Republic of Poland.

In view of the above I hereby request as indicated in the opening part of this document.

(signature on the original)