Wyrok z dnia 27 kwietnia 2005r (P 1/05)
Art. 607t § 1 ustawy z dnia 6 czerwca 1997 r. – Kodeks postępowania karnego
(Dz. U. Nr 89, poz. 555 ze zm.) w zakresie, w jakim zezwala na przekazanie obywatela
polskiego do państwa członkowskiego Unii Europejskiej na podstawie europejskiego
nakazu aresztowania, jest niezgodny z art. 55 ust. 1 Konstytucji Rzeczypospolitej
Przepis wskazany w części I traci moc z upływem 18 miesięcy od dnia
Judgment P 1/05 of 27 April 2005
Unofficial translation of the judgment
Article 607t § 1 of the Act dated 6 June 1997 – the Code of Penal Procedure
(Journal of Laws - Dz. U. No 89, Item 555 with amendments), within the scope allowing
the surrender of a Polish citizen to a Member State of the European Union subject to
the European Arrest Warrant, is incompatible with Article 55 Paragraph 1 of the
Constitution of the Republic of Poland.
The provision of the law indicated in Section I shall have no legally binding
force upon the lapse of 18 months from the date of publication [of this judgment].
Partial translation and discussion in EN, FR and DE
PRINCIPAL REASONS FOR THE RULING
1. Constitutional notions have an autonomous nature in relation to binding acts of lower rank. The meaning of terms contained in ordinary statutes may not determine the in-terpretation of constitutional provisions; otherwise the guarantees contained in these
provisions would lose any sense. On the contrary, it is constitutional norms that dictate the manner and direction of interpreting statutory provisions. The starting point for the interpretation of constitutional notions is the understanding of terms used in the text of the Constitution, shaped historically and defined within legal doctrine.
2. Traditionally, the terms “extradition” and “surrendering” were treated as synonymous within Polish legal discourse. This was true as regards the Criminal Procedure Code of 1969 and 1997 (until its amendment of 18th March 2004). Accordingly, it should be assumed that, within the currently operative 1997 Constitution of the Republic of Po-land, the constitutional legislator identified “extradition” with “surrendering” as legal institutions consisting in the transfer of a prosecuted person upon the request of a for-eign State, for the purpose of conducting a criminal prosecution against them or exe-cuting a penalty previously imposed upon them. In using the term “extradition” in the 1997 Constitution and in vesting a constitutional rank to the prohibition on extraditing Polish citizens, the constitutional legislator could not have taken into account provi-sions concerning the European Arrest Warrant, even when envisaging Poland’s future membership of the European Union. It was only the Council of the European Union Framework Decision of 13th June 2002 on the European arrest warrant and the surren-der procedures between Member States (2002/584/JHA) that created the obligation for EU Member States to surrender their own citizens prosecuted on the basis of the EAW.
3. Significant discrepancies between “surrendering” on the basis of the EAW and “extra-dition” on the basis of the Criminal Procedure Code, as amended in 2004, do not pre-clude the possibility that the former does not constitute extradition within the autono-mous constitutional sense, as contained in Article 55(1) of the Constitution (cf. point 1 above). The Constitution fails to regulate those aspects which would determine the differences between both of these institutions on the basis of the Code. This indicates that it would only be possible to consider the surrendering of a person prosecuted on the basis of an EAW as an institution distinct from extradition, as referred to in Article 55(1) of the Constitution, where the essence of each of these institutions was different. Since the essence (core) of extradition lies in the transfer of a prosecuted, or sen-tenced, person for the purpose of conducting a criminal prosecution against them or executing a penalty previously imposed upon them, the surrendering of a person prosecuted on the basis of an EAW for the purpose of conducting a criminal prosecu-tion against them or executing an imposed custodial sentence or another measure con-sisting in the deprivation of liberty, on the territory of another Member State, must be viewed as a form of extradition within the meaning of Article 55(1) of the Constitu-tion.
4. The prohibition on extradition contained in the aforementioned constitutional provi-sion expresses a right for Polish citizens to be held criminally accountable before a Polish court. Surrendering a citizen to another EU Member State on the basis of an EAW would entirely preclude enjoyment of this right and, ipso facto, would amount to an infringement of the essence of this right, which is impermissible in light of Arti-cle 31(3) of the Constitution. It should, therefore, be recognised that the prohibition on extraditing Polish citizens, as formulated in Article 55(1) of the Constitution, is abso-lute in nature and the personal right of citizens stemming therefrom may not be subject to any limitations.
5. When Poland became a Member State of the European Union, Polish citizens also be-came citizens of the European Union. This circumstance constitutes an argument justi-fying the overturning, by means of an appropriate amendment to Article 55(1) of the Constitution, of the prohibition on extraditing Polish citizens to EU Member States. However, it does not constitute a sufficient prerequisite for concluding that such over-turning has already occurred, by virtue of a dynamic interpretation of this provision. It is crucial that the Constitution links a certain set of individual rights and obligations (independent of the rights and obligations vested in “everyone” falling within the ju-risdiction of the Republic of Poland) with the possession of Polish citizenship. In con-sequence, the possession of Polish citizenship must constitute a significant criterion when assessing an individual’s legal status – concerning both the obligations of the State vis-à-vis the citizen (particularly, when they are formulated as categorically as in Article 55(1) of the Constitution) and the obligations of the citizen vis-à-vis the State, coupled with the former (cf. Articles 82 and 85 of the Constitution). Furthermore, it should be noticed that the surrender procedure on the basis of an EAW is not so much a consequence of introducing the institution of “citizenship of the Union” but rather an answer to the right of EU Member States’ citizens to move freely and reside within the territory of another Member State, which preceded creation of the aforementioned in-stitution.
6. The Code does not contain any norm stating expressis verbis that the transfer of a per-son prosecuted on the basis of an EAW from the territory of the Republic of Poland shall also apply in respect of Polish citizens. Such a norm should, however, be derived from Article 607t § 1, read in conjunction with Article 607p, of the Criminal Proce-dure Code, which does not include the prosecuted person’s possession of Polish citi-zenship as one of the enumerated prerequisites for obligatory refusal to execute an EAW.
7. Whilst the obligation to implement secondary European Union law, including frame-work decisions adopted within the Union’s Third Pillar (cf. Article 34(2) point b of the Treaty on European Union, as amended by the Amsterdam Treaty), has its basis in Ar-ticle 9 of the Constitution of the Republic of Poland, the fact that a domestic statute was enacted for the purpose of implementing secondary EU law does not per se guar-antee the substantive conformity of this statute with the norms of the Constitution.
8. The obligation to interpret domestic law in a manner sympathetic to EU law (so as to comply with EU law) has its limits. In particular, it stems from the jurisprudence of the Court of Justice of the European Communities (ECJ) that EU secondary legislation may not independently (in the absence of appropriate amendments in domestic legisla-tion) worsen an individual’s situation, especially as regards the sphere of criminal liability. It is beyond doubt that the surrender of a person prosecuted on the basis of an EAW, in order to conduct a criminal prosecution against them in respect of an act which, according to Polish law, does not constitute a criminal offence, must worsen the situation of the suspect.
9. The basic function of the Constitutional Tribunal within the Polish constitutional sys-tem is to review the conformity of normative acts with the Constitution. The Tribunal is not relieved of this obligation where the allegation of non-conformity with the Con-stitution concerns the scope of a statute implementing European Union law.
10. Given the content of Article 9 of the Constitution, and the obligations stemming from Poland’s membership of the European Union, an amendment of the currently opera-tive law is inevitable, enabling a full and, concomitantly, constitutionally compatible implementation of the Framework Decision of 13th June 2002. In order to enable ful-filment of this task, an appropriate amendment of Article 55(1) of the Constitution may not be excluded so that this provision will envisage an exception to the prohibi-tion on extraditing Polish citizens, so as to permit their surrender to other Member States of the European Union on the basis of an EAW.
11. The possibility, envisaged in Article 190(3) of the Constitution, for a judgment of the Constitutional Tribunal to delay the loss of binding force of a provision found noncon-forming to an act of higher rank, is not limited to cases of the abstract review of norms but may also be applied within the procedure for review of norms initiated by a question of law referred by a court or by a constitutional complaint.
12. Article 190 of the Constitution endows the Tribunal with significant discretion in ex-ercising the competence to delay the entry into force of its judgments – both as regards the grounds for such a period of delay and the specified duration of such delay (within the limits indicated by the discussed provision). However, this discretion does not sig-nify arbitrariness. The aforementioned delay is equivalent to temporarily leaving in force the provision found nonconforming to an act positioned higher in the hierarchi-cal system of the sources of law and, ipso facto, must always be applied as an excep-tion, permitted by the constitutional legislator, from the principle of the hierarchical conformity of the legal system and the principle of the supremacy of the Constitution. Each decision concerning the application of such a delay should be based on a balanc-ing of, on the one hand, values infringed in consequence of a prolonged application of unconstitutional provisions and, on the other hand, values served by this delay.
13. The regulation contained in Article 31(3) of the Constitution, concerning the limitation of an individual’s constitutional rights and freedoms, does not refer directly to the ap-plication of the delay envisaged in Article 190(3) of the Constitution. Accordingly, it is also permissible for the Tribunal to take advantage of the possibility to delay the en-try into force of its judgments for reasons other than the values enumerated in Article 31(3) of the Constitution (security and public order, protection of the natural environ-ment, health or public morals, or the freedoms and rights of other persons), even where it is inevitable that this leads to the temporary maintenance in force of provi-sions limiting constitutional rights and freedoms.
14. Whilst a judgment of the Constitutional Tribunal delaying the loss of binding force of an unconstitutional provision does not immediately eliminate this provision from the legal system, it does create an obligation for the legislator to undertake actions aiming at rapid elimination of the defects of the legal regulation indicated by the Tribunal, in-sofar as possible before the lapse of the time period stipulated in the Tribunal’s judg-ment. The loss of binding force of the provision following the lapse of this period may be conceived as a specific sanction for failure to fulfil the indicated obligation.
15. Taking into account the complexity and more stringent requirements (also regarding the relevant time periods) governing the procedure for amending the law, as well as the fact that Poland’s obligation to implement the Framework Decision of 13th June 2002 only exists from the date of Poland’s accession to the EU, i.e. from 1st May
2004, the Tribunal decided (in part II of the ruling) that the loss of binding force of the unconstitutional provision shall be delayed for 18 months, i.e. for the maximum period of delay, as envisaged in Article 190(3) of the Constitution.
16. If, as a consequence of the present judgment, an amendment of the Constitution is introduced, it will be necessary, in order to ensure the compatibility of domestic law with EU law, to re-introduce legal provisions concerning the EAW which were found unconstitutional on the grounds of the hitherto constitutional provision.
17. The institution of the EAW has crucial significance for the functioning of the administration of justice and, primarily – as a form of cooperation between Member States assisting in the fight against crime – for improving security. Accordingly, the Polish legislator should give the highest priority to ensuring its functioning. The absence of appropriate legislative actions undertaken within the time period specified in part II of the judgment summarised herein will not only amount to an infringement of the constitutional obligation for Poland to observe binding international law but could also lead to serious consequences on the basis of European Union law.
18. The Constitution does not envisage any exceptions from the principle of the univer-sally binding force of Constitutional Tribunal judgments, as expressed in Article 190(1) of the Constitution. In particular, the Tribunal’s judgments are binding upon all courts.
19. The delay of the loss of binding force of Article 607t § 1 of the Criminal Procedure Code has the effect that, during the period of 18 months following publication of the present judgment, this provision should be applied by organs administering justice, provided that the legislator does not earlier quash or amend this provision. Whilst this provision remains in force, Polish courts may not refuse to apply it for the rea-son that it fails to conform to Article 55(1) of the Constitution.
20. In light of the fact that the Constitutional Tribunal is bound by the limits of the re-ferred question of law (Article 66 of the Constitutional Tribunal Act), whose scope is, in turn, determined by the substance of the case before the court referring the question (Article 193 of the Constitution), the issue raised in various writings as to whether provisions permitting the surrender, on the basis of an EAW, of a person suspected of committing an offence for political reasons, without the use of violence, conforms to Article 55(2) of the Constitution, may not be adjudicated on in the present case.
Content of Table No 4