On 7 December 2023, the Supreme Court, sitting in open session as a full Extraordinary Review and Public Affairs Chamber, adopted a resolution confirming the validity of the nationwide referendum held on 15 October 2023.
Prior to adopting the resolution, the Supreme Court reviewed the protocol on the result of the referendum and the report on the nationwide referendum submitted by the National Electoral Commission (PKW) as well as the opinions issued by the Supreme Court following the examination of the referendum protests.
In the Supreme Court special repertory, a total of 2275 cases arising from the lodging of referendum protests were registered. In 316 cases, the Supreme Court issued opinions on the merits of the charges raised in the protests, in 44 cases it found the charges to be unfounded, and in one case it only partially upheld the protest. Whereas in 1914 cases, the Supreme Court left the protests without further proceedings, due to the fact that they did not meet the formal requirements.
The Supreme Court considered the following charges of the referendum protests to be well founded: a) the charge of failure to register the voter in the National Registry of Voters, which resulted in the voter not being issued with a referendum voting card, b) the charge of not sealing the cards before they were issued to voters, c) the charge of failure to include in the voting protocol the manner of voting, d) the charge that the receipt of the voting card by two voters was not properly confirmed, e) the charge of preventing a person with a severe disability from voting in the referendum due to the erroneous action of the postal operator's employee delivering the electoral packet.
The Supreme Court considered the following charges of the referendum protests to be unfounded: a) the charge of allowing voting after 9 p.m., i.e. after the polling station closing time. The Supreme Court pointed out that, pursuant to Article 39(4) of the Electoral Code (EC), voters who arrived at the polling station before that hour may continue to vote after the closing hour. It means that the EC allows the situation of voting after the end of the election silence by persons who arrived at the polling station before 9 p.m. The complainants, however, failed to substantiate that the persons who voted after 9 p.m. had arrived at the polling station after the closing hour, b) the charge that some members of the local electoral commission (PEC) were absent during the recount of the voting cards before the voting started as well as during the sealing of the cards and the determination of voting results, c) the charge of violation of the principle of secrecy of the vote in one of the PECs by improper arrangements of its premises, d) the charge of unlawful exerting of influence on the entitled person's voting method as well as the charge of election agitation by the members of the PEC at its premises on the election day.
The Supreme Court, in the resolution, held that the charges concerning the questions addressed by the members of the PECs to the voters on whether they want to receive a referendum voting card or the issuing of a third card (i.e. a referendum voting card) only upon the express request of the voter do not infringe Article 52(2) in conjunction with Article 52(1) of the EC.
In the view of the Supreme Court, the legal interpretation of the aforementioned provisions leads to the conclusion that although the legislator has left it to the discretion of the PKW to determine (by means of guidelines) the process of verification of the voter's will to take part in a particular vote, nevertheless, only the circumstance of whether the voter, in accordance with his or her will, received a proper voting card is significant when considering the infringement of the EC provisions. Thus, under such circumstances, the interpretation that the wording of Article 52(2) in conjunction with Article 52(1) of the EC prohibits the PEC members from asking questions aimed at determining whether a voter wants to receive a particular voting card should be considered too far-reaching. Such a question would still fall within the process of 'issuing' voting cards.
Moreover, the charge of unlawful exertion of influence on the voting method of an eligible person and the charge of election agitation at the polling station on the election day were found to be unfounded. In this context, the Supreme Court emphasised the need to absolutely guarantee the apolitical nature of electoral commissions (understood as maintaining impartiality with regard to the subject of voting). Electoral commissions are public institutions that are supposed to ensure the reliability of the entire decision-making process of the sovereign (under the preamble of the Constitution of the Republic of Poland). Particular responsibility in this regard is vested in the National Electoral Commission, which supervises the hierarchical structure of the electoral bodies.
Dissenting opinions were submitted to both the resolution and its reasons.
Polish original