On 7 September 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, found complaints against the resolution of the National Electoral Commission (PKW) of 30 August 2023 regarding clarifications on the authority of persons of trust and social observers to be justified.
The Supreme Court ruled that both the person of trust and the public observer have the right to be present during all activities of the electoral and referendum commission to which they are appointed, including prior to voting day.
The Supreme Court recalled that in accordance with the constitutional 'principle of principles', provided for in Article 2 of the Constitution of the Republic of Poland (Constitution), the Republic of Poland shall be a democratic state ruled by law. Although the Constitution does not specify either democracy or the principle of democracy, there is no doubt that a constitutive feature of a democratic state is the recognition of the existence of a collective subject of power in the state, in the case of the Constitution, the People, and the free election of the holders of power as a means of their appointment. The consequence of which is the recognition of the importance of citizens participation in political decision-making, also other than the mere election of the holders of power.
Incorporating the principle of democracy into the essence of the Republic of Poland dictates the assumption that the procedures of paramount importance to it, connected with the election of the holders of power and the referendum, should be of maximum transparency, as their results are an expression of the will of the Sovereign manifested in a direct manner. Ensuring the transparency of the aforementioned procedures is, therefore, the duty of a democratic state, and at the same time the implementation of its best interests.
When reviewing the challenged resolutions, the Supreme Court recalled that the PKW, while supervising the observance of the election law, issues guidelines and explanations as well as information on the law. While for the first two documents the Electoral Code (EC) provides for the form of a resolution and the possibility to appeal them to the Supreme Court, for information such form is not reserved, and consequently they are not subject to challenge. According to the Supreme Court's jurisprudence, the feature that distinguishes guidelines and explanations from information is, inter alia, their independent normative value manifested in the shaping of the legal situation of other entities. In the assessment of the Supreme Court, there is no doubt that the challenged documents, excluding the presence of persons of trust and public observers during electoral commission activities undertaken prior to voting day, was of such a nature.
Addressing the fundamental issue, the Supreme Court pointed out that in 2018, an amendment was made to the Electoral Code, which introduced an important change granting the person of trust (and the social observer) the right to be present during all activities of the electoral commission to which he or she has been appointed. Linguistic interpretation of the relevant provision of the EC unequivocally confirms the above right. At the same time, the use of the phrase "in particular" by the legislator and listing bellow specific activities of the electoral commission, contrary to the position of the PKW, does not result in any limitation of the general principle concerning the right of the person of trust and the social observer to be present during all activities of the electoral commission.
The result of linguistic interpretation is also confirmed by its functional interpretation. In the explanatory memorandum of the draft law introducing the indicated normative change in 2018, the authors unequivocally emphasised its importance, arguing that "this change is very important in the case of persons of trust at district electoral commissions, as they will be able to participate at the work of the commission also prior to the voting day, and not, as now, only during the activities of the district electoral commission on the voting day". Therefore, it cannot be assumed that the legislator's aim was to allow persons of trust and social observers to observe the activities of the electoral commission only on the day of the election or referendum.
In the above context, the Supreme Court emphasised that the principle of democracy is a dynamic principle that each time has to be referred to a specific social and cultural reality, social aspirations, traditions, as well as the vision of the democratic system of the authors of the Constitution. Thus, this principle does not operate in static conditions, but in societies that are changing, developing, and facing new challenges. Its content is consistently evolving, in particular through the introduction of new mechanisms for its implementation and protection. Therefore, the adoption as a principle of the right of the person of trust, and accordingly of the public observer, to participate in all the activities of the electoral commission, to which he or she has been appointed, should be considered a step in the right direction.