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VERIFICATION COMMISSION – CONSTITUTIONAL OR UNCONSTITUTIONAL ORGAN OF PUBLIC AUTHORITY?


On 9th May 2018 a first debate was held at the Law Faculty of the University of Warsaw within the frame of “State and Law Debate Club” – new regular project organized by the International Institute of the Civil Society (IICS) in cooperation with the Law Faculty of the University of Warsaw (partner) and the periodical - State and Law (media patron).

The debate titled “Verification Commission – constitutional or unconstitutional organ of public authority?” – was oriented towards both characterizing the commission as an institution and also towards considering whether and (if so, to what extent) this institution complies with constitutional standards arising from the Constitution of the Republic of Poland.

Following guests took part - as lecturers -  in the meeting: dr. hab. Ryszard Piotrowski (scientific employee of the Law Faculty of the University of Warsaw), legal counsel Sebastian Kaleta (member of the Verification Commission), legal counsel Arkadiusz Myrcha (a deputy of a Chamber of the Parliament -  Sejm). Maciej Pisz (vice-president of IICS and a PHd student at the Constitutional Law Faculty of the University of Warsaw) was a moderator of the debate.

As an introduction to the discussion the moderator indicated i.a. that the Verification Commission is a special organ of public authority, that has been introduced recently to the Polish legal system on the basis of the bill of 9th March 2017 on the special rules of eliminating reprivatization decisions concerning real estate in Warsaw that were issued in breach of the law. Moderator also emphasized that the introduction to the Polish legal order of such an organ as the Verification Commission reorganized significantly the conduct of the reprivatization procedures concerning real estate in Warsaw.

Within this part of the meeting it was pointed out that Verification Commission is a subject of many contrary opinions formed by representatives of doctrine of law and people engaged in the public life of Poland and that within the ongoing debate also critical opinions were formed towards the Verification Commission and that there were questions being formed whether this organ complies with the Constitution of the Republic of Poland.

Dr. hab. Ryszard Piotrowski – who was the first person out of the lecturers to share his opinion  – sparked off the debate by forming an observation that the Verification Commission concerns matters of a special public meaning, since it concerns consequences of war drama and undertakings which were for many people of a tragic character (so - called – reprivatization).

These two occurrences from the past, in the lecturer’s opinion, show the meaning of something else – they indicate that the Verification Commission pertains to the failure of the democratic state ruled by law suffered within the scope of procedures which the Commission deals with. As it was pointed out by the lecturer, the consequences of the said failure are connected with the transformation, with the creation of the social imbalance and are connected with the phenomenom which concerns law – with its social perception (in this meaning law is good for the strong and bad for the week). All these circumstances – in the light of the lecturer’s speech – raise a conflict.

Dr. hab. R. Piotrowski pointed out on the other hand that the Verification Commission is intended to repair democratic state ruled by law by such means which at the same time weaken this democratic state ruled by law. He indicated that Commission was provided with judicial power – and this cannot be perceived as complying with presented below art. 10 sec. 1 and 2 and art. 173 of the Constitution of the Republic of Poland.

Art. 10 1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.
Art. 173 The courts and tribunals shall constitute a separate power and shall be independent of other branches of power.

In dr. hab. R. Piotrowski’s opinion a question has to be raised whether it is possible to repair democratic state ruled by law (being convinced the repair may be successful) by breaching its rules? The lecturer indicated that as far as this issue is concerned there is politics involved and it is makes it immensely difficult to form a clear analysis, devoid of politics. Politics makes attempts to repair the weak, failing elements of the democratic state ruled by law by taking a shortcut (with the social approval at the same time).

As it was also indicated by dr. hab. R. Piotrowski, the bill from 9th March 2017 has its constitutional flaws and taking this into account he is of an opinion that the law has to be obeyed.

Member of the Verification Commission Sebastian Kaleta who was the second to take part in the discussion referred to stipulations of the Code of administrative procedure, indicating administrative aspects of the reprivatization procedures. He pointed out, i.a., that according to art. 163 of the Code the legislator may use other law stipulations which may eliminate an incorrect administrative decision.

The lecturer pointed out that on the grounds of the procedure - which was used until now in in reprivatization cases – the process of verifying such decision would be time-consuming and it would take 5 - 6 years, after which the case would come back to the President of Warsaw who would undertake actions in order to issue a new decision (which could be tackled by the same time-consuming procedure).

In Sebastian Kaleta’ s opinion the chain of actions within the procedure that was necessary to verify a case of reprivatization of only one building in Warsaw does not fulfil the standards of the democratic state ruled by law. Therefore a special procedure was created which allows to verify all administrative decisions concerning given real estate within only one proceedings.

The lecturer also pointed out that the subject of the proceedings conducted by the Verification Commission is a particular administrative decision (decision of President of Warsaw) and that art. 163 of the Code of administrative procedure allows to appoint other supreme body to analyze the decision – other than local government appeals board.

In the lecturer’s opinion since the Verification Commission may analyze all issued administrative decisions and at the same time its decision may be verified by the administrative court it has elements of an organ of public authority.

Deputy Arkadiusz Myrcha indicated that the creation of a special organ (such as the Verification Commission) in order to resolve a particular problem may raise doubts as for the future of the law system. In his opinion this situation may result in a rule according to which each authority will form new bodies outside legal system that will have judicial powers and powers of the organs of the public authority. This activity may lead in his opinion to a dangerous end in which the ruling authority may start questioning the sense of existence of judicial force and organs of public authority. He also stressed that instead of forming new quasi-judicial bodies there could be changes introduced to these existing law stipulations which are obstacles within the reprivatization process (for example: the deadlines for analyzing cases, the rules connected with the access to the documents).

According to the deputy Arkadiusz Myrcha the Commission exceeds the existing administrative and judicial order. In accordance with the said bill Commission is an organ of the public authority and this creates both powers and obligations. Therefore in the lecturer’s opinion a question has to be raised whether with respect to the Commission a rule is obeyed according to which administrative proceedings shall be two-tier, with provision for appeal. After giving a negative answer to such question the Deputy also indicated that Verification Commission has judicial powers and that is in his opinion the breach of the constitutional framework.

The Deputy Arkadiusz Myrcha pointed out that doubts are connected with the composition of the Commission. With such wide powers that are vested in the Commission its members should be of high competence. Members of the Commission however are not even required to have a higher (university) education (the experience connected with the management of state estate is sufficient).

After the series of speeches moderator pointed out that special doubt may be raised by the compliance of the Commission’s activity with the standards of ownership protection arising from the Constitution of the Republic of Poland (for the owners of the real estate in Warsaw). Therefore moderator asked the lecturers whether activity of the Verification Commission may raise such substantial doubts.

Dr hab. Ryszard Piotrowski indicated that art. 64 sec. 3 of the Constitution of the Republic of Poland allows limitations of the ownership right only in extraordinary situations. At the same time, in accordance with the bill erecting the Commission it issues decisions if the transfer of ownership right would be in blatant breach with the social interest. In his opinion the problem is connected with the fact that the Commission defines social interest now and refers to the facts from the past. In his opinion, taking into account the rulings of the Constitutional Tribunal, such solution cannot be introduced retroactively.

The Deputy Arkadiusz Myrcha stated that there are some special regulations that allow deprivation of the ownership – for example connected with the process of building motorways and roads - but the procedure connected with it satisfies constitutional standards to the contrary with the procedure of the Verification Commission.In conclusion of the debate moderator passed the last question concerning the topic of the discussion – is the Verification Commission a constitutional or unconstitutional organ of public authority?

Dr hab. Ryszard Piotrowski was of an opinion that the commission is unconstitutional organ, however not necessarily bad. It is crucial to take into account the degrees of the breach of the Constitution and the motives behind the creation of the said organ

Member of the Verification Commission Sebastian Kaleta was of an opinion that the reservations towards the Commission are not compatible with its construction.

The Deputy Arkadiusz Myrcha stated that taking into account the construction of the Commission it is needed to form a question whether there were no other activities that could be undertaken and which would comply with the stipulations of the Constitution of the Republic of Poland.