On 12 October 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, did not uphold the complaint lodged by the Election Committee of Krzysztof Kwiatkowski - Pakt Senacki requesting the repeal of two resolutions of the National Electoral Commission (PKW) of 3 October 2023.
The challenged resolutions of the PKW include guidelines:
- for district electoral commissions, on the tasks and procedure for preparing and conducting voting in polling districts established abroad and on Polish sea vessels (Resolution No. 226/2023), and
- for regional electoral commissions, on the tasks related to determining the results of voting and the results of the election as well as the result of the referendum, and the procedure and rules for appointing plenipotentiaries of regional electoral commissions (Resolution No. 227/2023).
As in the case I NSW 75/23, the charges raised in the complaint challenged the requirement to transfer the results of voting at district electoral commissions operating outside the Republic of Poland within 24 hours of the end of voting. The Supreme Court held that the guidelines in this regard correctly implement the explicit provision of Article 230(2) of the Electoral Code (EC). Modification of the guidelines in the direction suggested by the Complainant would amount to an unconstitutional interference of the PKW in a matter reserved for the legislator. The Supreme Court emphasised that an executive act, such as the PKW resolution, cannot amend universally binding provisions of the law.
The Supreme Court, as in the case I NSW 75/23, emphasised that neither Article 230(2) of the EC, nor the equivalent regulations in force between 1993 and 2011, have been applied so far. Moreover, the manner in which the elections scheduled for 15 October 2023 are organised, also reduces the probability of the event predicted in the complaint, as there will be significantly more electoral commissions operating and, statistically, each of them will cover a smaller number of voters.
The Supreme Court also emphasised that in the context of the overall reality of the work of the district electoral commissions (OKWs), the implementation of the Complainant's demands as to the manner of their organisation would lead to considerable complications and a serious prolongation of the time for the determination of the results of the vote, thus the need for the application of Article 230(2) of the EC realistic, which is currently very unlikely. Moreover, as the Supreme Court also noted in the case I NSW 75/23, the provision of Article 230(2) of the EC provides a guarantee that potential problems with the transfer of the results of the vote to the District Electoral Commission in Warsaw I, from small polling districts established outside the country (often in the areas of conflicts or natural disasters), will not block for an unspecified period of time the determination of the results of the elections and referendum on a nationwide scale.
At the same time, the Supreme Court reiterated that the assessment of the correctness of potential application of Article 230(2) of the EC can be effectively made when deciding on the validity of election protests and taken into account when ruling on the validity of the elections.
Polish original