On 5 October 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, upheld the complaint against the National Electoral Commission (PKW) Resolution No. 211/2023 of 25 September 2023, concerning guidelines for district electoral commissions on the rights of public observers (I NSW 72/23).
The Supreme Court recalled that the right to challenge the PKW resolution on the guidelines is vested in the entity entitled to participate in the referendum campaign (see Supreme Court decisions of 7 September 2023, I NSW 14/23 and I NSW 15/23). The constitutional guarantees of the right to a court, under the Constitution of the Republic of Poland (Constitution), include the review of the principles of and procedures for the nomination of candidates and the conduct of the elections (and the requirements for validity of the elections) to the Sejm and the Senate (Article 100(3)), to the office of the President of the Republic of Poland (Article 127(7)), to the organs constituting local self-government units (the second sentence of Article 169(2)), as well as the determination of the principles of and procedures for the holding of a nationwide referendum (Article 125(5)) and a local referendum (the second sentence of Article 170). Both these institutions and procedures equally implement the constitutional rights of citizens and the principle of democracy and supremacy of the Nation (Article 2 and Article 4 of the Constitution).
The Supreme Court found that although the Act on the nationwide referendum fails to independently govern the status of public observers it explicitly refers to the provisions of the Electoral Code (Article 92 of the Act on the nationwide referendum), which establishes the institution of public observers (Article 103c(1) of the Electoral Code). At the same time, there is the lack of logical-linguistic, systemic and axiological rationale to conclude that the legislator deliberately excluded public observers from referendum proceedings. The democratic character of the state is implemented both in the representative forms and through referendums. The principles of democracy and the supremacy of the Nation are among the core constitutional principles, determining the identity of the constitutional order of the Republic of Poland (see judgments of the full composition of the Constitutional Tribunal of: 11 May 2005, K 18/04; 24 November 2010, K 32/09). The guarantee of a fair and transparent referendum process is equally important as the guarantee of fair and transparent elections to the Sejm and the Senate of the Republic of Poland. The institution of the referendum, alongside elections and the civic legislative initiative, ensures the participation of citizens in public life and serves the implementation of their constitutional rights.
The Supreme Court found that Point 15, sentence 2 of the Annex to Resolution No. 211/2023 of 25 September 2023, under which "The law does not provide for the right to appoint public observers in connection with a nationwide referendum", is not in conformity with the law. Such worded guideline is in direct violation of Article 103c(1) of the Electoral Code in conjunction with Article 92(1) of the Act on the nationwide referendum.
The Supreme Court noted that the challenged resolution is also not consistent with the good practice of the PKW itself, which has so far adopted the position that public observers may participate in local referendums (see PKW Resolution No. 61/2021 of 24 May 2021 on guidelines and explanations on local referendums concerning the dismissal of local self-government units, Monitor Polski of 2021, item 586, paragraph 33). Thus, it cannot be axiologically justified in a convincing way that greater transparency of the referendum process should be ensured at the local level and less at the nationwide one.
The fact that the issue of the participation of public observers was the subject of the guidelines for district electoral commissions on the tasks and procedure for the preparation and conduct of voting in polling districts, established in the country in the elections of the President of the Republic of Poland scheduled for 28 June 2020, also proved to be significant (see Resolution of the PKW No. 183/2020 of 10 June 2020, Monitor Polski 2020, item 565; item 13), as well as the guidelines for elections to the Sejm and the Senate in 2019 (see Resolution of the PKW No. 210/2019 of 2 September 2019, Monitor Polski 2019, item 890; item 13).
The Supreme Court, however, discontinued the remaining proceedings due to the amendment of the challenged resolution by the PKW Resolution No. 225/2023 and the withdrawal of the complaint. The PKW amended Point 20 of the Annex to read as follows: "Public observers shall have the same rights as the persons of trust, but shall not be allowed to submit comments to the voting protocols or be present during their transportation and transmission". This means that the PKW itself considered that the blanket (general) exclusion of allowing public observers to record the activities of district electoral commissions is excessive.