BARSKI AND ŚWIĘCZKOWSKI  v. POLAND
Inadmissible
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
1. The applicant in the first case, Mr Dariusz Barski (“the first applicant”), is a Polish national, who was born in 1968 and lives in Aleksandrów Łódzki. 2. The applicant in the second case, Mr Bogdan Święczkowski (“the second applicant”), is a Polish national, who was born in 1970 and lives in Sosnowiec. Both applicants were represented before the Court by Mr M. Górski, a lawyer practising in Łódź. 4. The applicants were high-ranking prosecutors. The first applicant had served, inter alia, as the Deputy Prosecutor General and the Deputy Minister of Justice. Both applicants acquired the status of a “prosecutor in inactive service” (prokurator w stanie spoczynku) in May 2010. 5. The applicants stood for election to the Sejm (the first Chamber of the Parliament) from the list of the Law and Justice party as nonpartisan candidates. 6. On 22 September 2011, during the electoral campaign before parliamentary elections, the National Council of the Prosecution Service (Krajowa Rada Prokuratury), a body composed of senior prosecutors, Members of Parliament, the Minister of Justice, the Prosecutor General and the representative of the President of the Republic, passed a resolution expressing a view on the participation of prosecutors standing for election in political activities. The National Council opined that prosecutors, including prosecutors in inactive service had the right to stand for election to Parliament. It noted that the prosecutors in inactive service enjoyed a privileged position in comparison to the prosecutors in service in that when elected members of parliament the former were not required to renounce their status of prosecutors in inactive service. The National Council recommended that this situation had to be addressed by the legislature. At the same time, it reminded all prosecutors of the statutory ban on engaging in political activity. 7. The applicants were elected members of the Sejm on 9 October 2011. The results of the elections were published on 12 October 2011. On an unspecified date the applicants were requested by the Speaker of the Sejm (Marszałek Sejmu) to renounce their status of prosecutors in inactive service. 8. On 18 October 2011 the National Council of the Prosecution Service passed a new resolution in which it opined that both prosecutors in service and prosecutors in inactive service could not hold their position and sit as Member of Parliament at the same time. The Council stated that its previous opinion of 18 September 2011 had only concerned the period of electoral campaign. 9. On 27 October 2011 the Speaker of the Sejm issued two respective orders declaring that the applicants had forfeited their parliamentary seats under Article 103 § 2 of the Constitution in conjunction with Article 249 § 1 of the Electoral Code. He observed that the prohibition of holding jointly a parliamentary seat and other public office (“incompatibilitas”) was the consequence of the principle of the separation of powers and of the political neutrality of the public service. The Constitution prescribed in Article 103 §§ 1 and 2 the absolute and directly applicable ban on joint holding of the office of a deputy with other positions listed in this provision. The scope of this ban could not be restricted by statutory regulations. 10. The Speaker noted that the ban on holding jointly a parliamentary seat and the office of a prosecutor was prescribed in Article 103 § 2 of the Constitution. This rule was also reflected in the statutory norms, namely section 30 § 1 of the Act on the Exercise of the Mandate of the Member of the Sejm and of the Senate (hereinafter “The Act on the Exercise”) and section 65a § 1 of the Act on the Prosecution Service. The scope of those various provisions was not identical, in particular with regard to the consequences of the breach of the impugned ban. The Act on the Exercise stated that deputies could not concurrently work in the position of a prosecutor and permitted in such a case for a prosecutor to benefit from an unpaid leave of absence. On the other hand, the Act on the Prosecution Service required that a prosecutor who had been elected to hold a position in a State organ forfeit his office of the prosecutor, unless he acquired the status of a prosecutor in inactive service. The Speaker acknowledged the above divergences in respect of the impugned ban between the statutory regulation on the one hand and the constitutional regulation on the other. Nonetheless, the Speaker considered that he was obliged to apply the constitutional rule prescribed in Article 103 § 2 and disregard the statutory provisions incompatible with that rule. 11. The next issue to determine was the interpretation of the term “prosecutor” employed in Article 103 § 2 of the Constitution and whether this term encompassed prosecutors in inactive service. The Speaker noted that this was an autonomous constitutional term which could not be limited to its statutory definitions. Having analysed the relevant provisions of the Act on the Prosecution Service as well as the case-law of the Constitutional Court and of the Supreme Court, the Speaker found that the term “prosecutor” employed in Article 103 § 2 of the Constitution encompassed equally prosecutors in inactive service. 12. The Speaker noted that within fourteen days of the final result of the elections the applicants could have declared that they had renounced their status of prosecutors in inactive service. In the absence of such a declaration, the Speaker held that the applicants had forfeited their parliamentary seats. 13. The first applicant lodged an appeal with the Supreme Court. He argued, inter alia, that the Speaker had erred in finding that the term “prosecutor” used in Article 103 § 2 of the Constitution comprised prosecutors in inactive service. He further maintained that the Speaker had suddenly adopted a new interpretation of the term which was inconsistent with its statutory understanding (section 65a § 1 of the Act on the Prosecution Service and section 30 of the Act on the Exercise) as well as contrary to existing practice. He further invoked the first resolution of the National Council of the Prosecution Service which stated that a prosecutor in inactive service could hold the office of a deputy jointly with his status of a prosecutor in inactive service. In addition, the Speaker’s finding that the first applicant had to irrevocably forfeit his status of the prosecutor in inactive service in order to keep his parliamentary seat breached the constitutional provisions on proportionality and equality. Lastly, invoking, inter alia, Article 6 § 1 of the Convention, the applicant submitted that the Speaker had not informed him about the procedure initiated in his case and had not offered him a possibility to make representations. 14. The second applicant appealed too. He alleged, inter alia, that the Speaker had wrongly applied Article 103 § 2 and other provisions of the Constitution regulating the right of access to the public service and the right to stand for election as well as the relevant provisions of the Electoral Code. He also invoked Article 14 of the Convention. His main contention was that the ban prescribed in Article 103 § 2 of the Constitution did not apply to prosecutors in inactive service. 15. On 9 November 2011, the Supreme Court, sitting in camera, dismissed the applicants’ respective appeals. 16. The Supreme Court first inquired about the existing practice with regard to judges and prosecutors in inactive service sitting as MPs. It established that there had been one case of a judge in inactive service who sat as a Senator (Member of the Senate, the second Chamber of the Polish Parliament) between 2001 and 2007. In that case no action was taken by the Speaker of the Senate. There had been no such cases concerning prosecutors in inactive service. In one case concerning a judge in inactive service, the First President of the Supreme Court objected to the participation of this judge in the capacity of an expert in the works of the parliamentary commission of inquiry, considering it being incompatible with the duty of political neutrality of judges. In the Supreme Court’s view, the existing practice was inconsistent and did not support the applicants’ contention that prosecutors in inactive service could sit as MPs. 17. The Supreme Court carried out a detailed analysis of the term “prosecutor” within the meaning of Article 103 § 2 of the Constitution. It noted first that this provision used the term “prosecutor” without any qualification which signified that it was applicable to all prosecutors, i.e. persons appointed to a post of a prosecutor. At the date of the entry into force of the Constitution, that is on 17 October 1997, the appointment to a post of a prosecutor ended with retirement. Subsequently, on 1 January 1998 the Amendment to the Prosecution Service Act introduced the status of a “prosecutor in inactive service” (in parallel to the status of a “judge in inactive service”). Following this amendment, the public-law employment relationship of a prosecutor began with his appointment and continued until his or her death (save for cases when a prosecutor renounced it or was divested of it as a result of a judgment). The said amendment altered the meaning of the term “prosecutor” and from its entry into force the term covered not only prosecutors in active service, but also “prosecutors in inactive service”. 18. This finding was confirmed by the case-law of the Constitutional Court (judgment of 6 March 2007, case no. SK 54/06) and of the Supreme Court (inter alia, judgment of 29 September 2005, case no. SDI 22/05). Both courts underlined that a prosecutor in inactive service (or judge in inactive service) did not cease to be a prosecutor (judge) and the holder of a public office. Prosecutors in inactive service continued their publiclaw employment relationship with the exception of the obligation to carry out their duties. The legislator wished to preserve the authority of the office of a prosecutor (judge) and thus bestowed particular privileges on those who had held those offices in exchange for the resignation from certain rights. The Act on the Prosecution Service linked the status of a prosecutor in inactive service with a number of obligations such as disciplinary responsibility, the limitation on taking any other employment or gainful activity, the requirement to uphold the dignity of the office and the ban on engaging in political activity. At the same time prosecutors in inactive service received a special pension (uposażenie) which was more favourable than an ordinary old-age pension. It was further clear that a prosecutor in inactive service could voluntarily renounce his status and all the corresponding rights and obligations. 19. In conclusion, the Supreme Court held that there was no doubt that the term “prosecutor” employed in Article 103 § 2 of the Constitution covered both prosecutors in service and prosecutors in inactive service. It noted that the interpretation of the provisions of the Constitution, like in the present case, could not be determined by the content of statutory norms, in particular by section 65a of the Act on the Prosecution Service. The ban on holding jointly a parliamentary seat and the position of a prosecutor, comprising prosecutor in inactive service, was directly prescribed in the Constitution. Accordingly, the fact of a prosecutor going into inactive service could not revoke the ban set out in Article 103 § 2 of the Constitution; it was necessary that a prosecutor in inactive service renounce his status the prosecutor in inactive service. 20. Furthermore, the Supreme Court noted that according to section 44 § 3 of the Act on the Prosecution Service, prosecutors were prohibited from joining any political party and from engaging in any political activity. In accordance with the Supreme Court’s case-law, this provision was also applicable to prosecutors in inactive service, while there was no doubt that sitting as a deputy was a political activity. In the Supreme Court’s view, the rules on disqualification were aimed at ensuring political neutrality of the public service and the transparent operation of the parliament free from undue influence and the conflict of interest. They were further proportional to those aims. The Supreme Court held that the constitutional provisions on the equality (Article 32 § 2), the right of access to the public service (Article 60) and the right to be elected (Article 99) had not been infringed. The ban which affected the applicant had its origin in the Constitution itself and the drafters of the Constitution had carried out a balancing exercise of the various competing interests. Furthermore, the applicants had had time to consider their options and the possibility to renounce their status of prosecutors in inactive service. 21. The Supreme Court found that no provision of the Convention, in particular Article 3 of Protocol No. 1 or Article 14, had been breached in the applicants’ case. In its view, Article 3 of Protocol No. 1 did not concern the rules on disqualification. The applicants had exercised their right to be elected a deputy, but in order to keep their parliamentary seat they had to renounce their status of a prosecutor in inactive service. The Supreme Court relied on the decision Briķe v. Latvia (no. 47135/99, 29 June 2000) in which the Court had dismissed the complaint of a judge who complained that in order to stand for election to Parliament she had had to resign from her judicial office. The Supreme Court found that the same approach was applicable, mutatis mutandis, to the situation of the applicants in the present case. 22. The Supreme Court further held that Article 6 § 1 of the Convention was not applicable to the proceedings at issue because they concerned political rights. It noted, in passing, that the applicants had been summoned to renounce their status of the prosecutor in inactive service. 23. The first applicant filed a constitutional complaint. He alleged that the relevant provisions of the Electoral Code breached the constitutional right of access to the public service (Article 60), the right to stand for election (Article 99 § 1) as well as Article 103 § 2 of the Constitution in that prosecutors in inactive service could not sit as Deputies. On 25 September 2013 the Constitutional Court discontinued the proceedings, having found, inter alia, that the ban on holding jointly the offices of a prosecutor in inactive service and of an MP was prescribed directly in the Constitution and therefore the Constitutional Court had no jurisdiction to decide the case (case no. SK 44/12). It noted, obiter dicta, that the inconsistent interpretation of Article 103 § 2 of the Constitution should be unified. 24. Article 99 § 1 of the Constitution provides: “Every citizen having the right to vote, who, no later than on the day of the elections, has attained the age of 21 years, shall be eligible to be elected to the Sejm.” 25. Article 103 § 2 of the Constitution reads as follows: “No judge, public prosecutor, officer of the civil service, soldier on active military service or officer of the police or of the services of State protection shall exercise the mandate of a Deputy.” 26. Article 247 of the Electoral Code, in its relevant part, provides as follows: “1. The expiration of the mandate of a Deputy shall occur in the following cases: ... 5) holding on the election day of an office or position, which according to the provisions of the Constitution of the Republic of Poland or statutes could not be held jointly with the office of a Deputy, subject to the provision of § 3.” 27. Article 247 § 3 states that an expiration of the mandate of a Deputy in the situation described above will take place if a Deputy did not submit to the Speaker of the Sejm a declaration resigning from his other office or position within fourteen days of the official result of the election being published. 28. Article 334 § 2 of the Electoral Code provides that a Member of the European Parliament cannot hold jointly his or her mandate with those offices or positions which according to the Constitution or statutes cannot be held jointly with the mandate of a Deputy. 29. Section 44 § 3 of the Act on the Prosecution Service provides that a prosecutor cannot join a political party or be involved in any political activity. 30. Section 65a § 1 of the same Act reads as follows: “A prosecutor who was nominated, appointed or elected to hold office in the State organs, local self-government, diplomatic service, consular service or in the organs of the international or supranational organisations acting on the basis of an international agreement ratified by the Republic of Poland shall resign from his position unless he goes into inactive service.”