An example worth following for us too: the Polish prosecutor can investigate the constitutional judge

Such an investigation could well be carried out in Romania too, because the constitutional court here is, to put it mildly, hardly the kind of institution that makes one immediately think of political impartiality and spotless public trust. In Poland, prosecutors are now investigating whether the president of the constitutional court improperly selected the panels of judges ruling on individual cases.

The complaint, moreover, was filed by one of the court's own members, Sławomir Patyra, against its president, Bogdan Święczkowski, and on September 29 Justice Minister Waldemar Żurek, who is also the prosecutor general, announced that the facts and evidence set out in the submission would be examined. According to Patyra, since January the president has on several occasions bypassed the statutory rules on assigning judges, thereby potentially influencing the outcome of cases; the complaint lists specific cases and personnel changes. So far there is no talk of formal charges being brought against Święczkowski.

Under Polish rules, the composition of panels must take into account alphabetical order, the nature and number of cases, and the order in which they were received. Among the contested cases are those concerning the prime minister's countersignature of presidential acts, and the recognition in Poland of same-sex marriages contracted abroad. In such matters it sure as hell isn't a minor detail whether judges end up in the deciding seats according to the order laid down by law, or whether someone works out in advance what outcome a given panel is likely to produce. On October 1, Patyra told TOK FM that he had analyzed the court's databases and case registers and found a pattern in them that requires explanation: certain judges are missing from panels dealing with cases sensitive to the structure of the state, while the same names keep coming up again and again. He specifically singled out the selection of the reporting judge and the panel chair, since these roles carry particular weight in the proceedings. In other words, he began comparing the documents with how things are supposed to work under the law, and found that the gap between the two was not just a printing error.

The constitutional court rejected the allegations and stated that the president had acted lawfully; of course, it also suggested that the complaint might be a personal counterattack, since Święczkowski had previously taken steps to initiate disciplinary proceedings against Patyra and two other judges, among other things for refusing to take part in judicial work. But cheap counter-accusations are no substitute for examining the case files: if the panels were properly composed, there should be a record of it; if they departed from normal procedure, it should come out on what basis that was done. A conflict with the person who filed the complaint is, on its own, no answer to whether the data he presented are accurate, and a constitutional court ought to know that invoking personal grievance is not a legal argument.

In Romania, too, it would be welcome if concretely documented suspicions of abuse were thoroughly investigated, and if not every awkward question could be swept aside by invoking the institution's authority. The constitutional court's authority should, after all, rest on fair conduct, not on the fact that nobody dares look into how it operates. A robe remains a piece of clothing even when worn ceremonially; it shouldn't automatically come with public-life sanctity and a “you wouldn't understand this anyway, so shut up” kind of absolution — or with Péter Eckstein-Kovács excusing his former colleague, the current constitutional judge Csaba Asztalos, on the grounds that he's known him forever and knows he's a good guy. Yes, in law a somewhat more thorough justification than that is needed, and Asztalos's cases practically scream for a bit of review.

Ugar