Problems with the Polish National Council of the Judiciary have been going on for more than seven years, when the method of electing judges – members of the National Council of the Judiciary (hereinafter: the NCJ)– was changed. Despite the fact that this amendment reversed the undemocratic selection of these judges by other judges into the selection by the Sejm, it has become the subject of constant criticism from the political opposition and legal circles, in particular the judiciary.
The ruling coalition in Poland[1], which has been in power since 13 December 2023 (which is for Polish People the symbolic date of the introduction of martial law by the communist military junta in 1981), continues its efforts to undermine the status of the NCJ. Despite the lack of any legal basis (in Poland, the words of the current Minister of Justice, Adam Bodnar, about "the search for a legal basis" for ministers' activities have become an icon of the government's unlawful actions) these actions are described as part of the campaign to "restore the rule of law".
So far, these actions have been reflected in the i.a. resolution of the Sejm on 20 December 2023 and the draft law amending the Act on the National Council of the Judiciary dated 11 January 2024.
The resolution of the Sejm, which has no legal power in Poland, states that the decisions of the Sejm concerning the election of judges – members of the NCJ were adopted in manifest breach of the Constitution. The Sejm also called on the elected members of the NCJ to immediately cease their activities „in this body”.
On the other hand, the draft law, which will soon be debated by the Polish parliament, provides that judges appointed after 2018 will not be able to stand as candidates for the NCJ and will not be able to nominate candidates for it, unlike, for example, other judges appointed before 2018, including judges appointed in the People's Republic of Poland by its communist Council of State. Thus, the bill assumes direct discrimination against one group of judges, treating them as judges of a "inferior category", deprived of the powers being held by other judges. This proposed regulation clearly violates Polish and international law[2].
This brutal attack on the currently functioning NCJ is based on the assumption that the Constitution demands that judges – members of the NCJ must be elected by other judges, whereas according to the law in force[3] "the Sejm shall elect fifteen members of the Council from among the judges of the Supreme Court, common courts, administrative courts and military courts for a joint four-year term of office".
Therefore, it is necessary to remind what the Constitution says about the NCJ and whether the law in force concerning the election of judges – members of the NCJ in fact is contrary to it.
Pursuant to Article 186(1) of the Constitution, the National Council of the Judiciary shall safeguard the independence of courts and judges.
Pursuant to Article 187(1) of the Constitution, the National Council of the Judiciary shall be composed as follows:
1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;
2) 15 judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts;
3) 4 members chosen by the Sejm from amongst its Deputies and 2 members chosen by the Senate from amongst its Senators.
According to Article 187(4) of the Constitution, the organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.
It is therefore clear that the Constitution nowhere indicates that the fifteen members elected from among the judges are to be elected by other judges or by judicial self-government bodies. The NCJ is neither a judicial body nor a professional self-governing body. It is clear from the wording of Article 187 of the Constitution that the method of electing the fifteen members referred to in Article 187(1)(2) of the Constitution has been deliberately omitted, leaving the discretion in this respect to the statutes, i.e. laws adopted by the Sejm.
The requirement from the NCJ to be as independent as courts[4] is a misunderstanding, since the NCJ is a constitutional organ of the State structurally located between the three separated powers, but not a part of the judiciary.
Nor is the NCJ an element of judicial self-government. The mixed composition of the Council, which includes representatives of the legislative, executive and judiciary powers, makes it a body that ensures the balance and cooperation of powers, and it should be perceived as such. It is a body in which different concepts and visions of the guarantee of the independence of courts and the independence of judges may clash. It is a specific, independent, central organ of the State. Hence, the independence of the NCJ is formed at the level of any other constitutional organ of the State.
Judges-members of the NCJ, in the course of its duties, shall not be independent as adjudicating judges[5]. They act there as members of that organ of the state, and their status of a judge is only a constitutional prerequisite for becoming a member of the NCJ. The members of the NCJ do not act individually, but as a collegiate body.
In Poland, the Constitutional Tribunal is the only body competent to assess the constitutionality of laws adopted by the Sejm. Pursuant to Article 190(1) of the Constitution, its rulings are universally binding and final.
Any doubts as to the constitutionality of the current method of electing judges – members of the NCJ – have been removed in this procedure. In the judgment of 25 March 2019, the Constitutional Tribunal adjudicated that the method of selection of judges-members of the NCJ by the Sejm is consistent with the Constitution.
This judgment of the Constitutional Tribunal enjoys the constitutional attribute of finality[6] and the Act on the National Council of the Judiciary enjoys the feature of constitutionality.
As a result, all judges – members of the NCJ – are legally elected, and this assessment cannot be changed by any unlawful expectations and postulates.
However, it is worth taking a closer look at the issue of the legality of the Polish NCJ before 2018.
The Constitutional Tribunal has repeatedly criticised the way in which the NCJ functioned before 2018. Contemporaneously, The Tribunal stated violations of the Constitution of fundamental importance.
By the judgment of 29 November 2007, ref. no. SK 43/06, the Tribunal found that the NCJ lacked the competence to independently determine the criteria for the evaluation of candidates for judges and that the statutory regulations in this area were unconstitutional[7].
Next, in the judgment of 16 April 2008, ref. no. K 40/07 The Tribunal stated that it was unconstitutional to replace the First President of the Supreme Court, the President of the Supreme Administrative Court and the Minister of Justice at meetings of the NCJ by authorised persons and the lack of the possibility of a secret ballot.
The most important was the judgment of 27 May 2008, ref. no. SK 57/06, where the Tribunal pointed out the lack of the recourse to the courts in the judicial nomination procedure[8].
Another ruling of the Constitutional Tribunal concerning the NCJ was the judgment of 19 November 2009, ref. no. K 62/07, concerning the unconstitutionality of a provision authorising the President to regulate, by means of a Regulation, the nomination proceedings being held in front of the NCJ.
Another ruling of the Constitutional Tribunal concerning the NCJ was the judgment of 20 June 2017, ref. no. K 5/17, which declared the individual terms of office of judges – members of the National Council of the Judiciary – to be unconstitutional. Moreover, the implementation of that judgment was the Act amending the Law on the National Council of the Judiciary of 8 December 2017, which resulted in the shortening of the unconstitutional individual terms of office of judges – members of the NCJ in 2018.
As is clear, rather these nominations from before 2018 may be questioned. They were made on the basis of provisions found by the Constitutional Tribunal to be unconstitutional, contrary to the currently applicable legal status. However the Tribunal every time pointed out that its judgments do not provide constitutional grounds for resuming proceedings conducted in order to fill judicial posts. Such an assessment, concerning the effects of the judgment, is supported by the need to ensure the stability of the functioning of the NCJ, as well as of other state bodies participating in the procedure of appointing judges. It is important to emphasize that all judges remained in their posts and no reform, in particular the one in 2018, has led to judges being stripped of their offices.
Reference
[1] which includes the Civic Coalition, the Left, the Polish People's Party and Poland 2050.
[2] in particular Article 18[3a] of the Labour Code, which prohibits treating an employee in a comparable situation less favourably than other employees, Article 32(1) of the Constitution of the Republic of Poland which guarantees the right to equal treatment by public authorities, and Article 14 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits discrimination "on any grounds".
[3] article 9a of the Law on the National Council of the Judiciary that is in force since 17 January 2018 (as amended by the Law of 8 December 2017).
[4] in the meaning of Article 173 of the Constitution.
[5] in the meaning of Article 178(1) of the Constitution
[6] Article 190(1) of the Constitution
[7] The Tribunal also stated that the regulation conferring on the NCJ the power to regulate matters of fundamental importance according to the constitutional law infringed the right of access to the public service on equal terms. Contemporaneously, the Tribunal pointed out that the judgment does not provide constitutional grounds for resuming proceedings conducted in order to fill judicial posts. Persons whose applications have been rejected on the basis of the evaluation criteria set out in the contested statutory provision will have the opportunity to re-apply for vacant judicial posts in subsequent competitions.
[8] It is important that for the first 18 years of the NCJ's activities, its resolutions could not be appealed against in any way. The Tribunal held that the procedure by which the NCJ assesses a candidate for the office of judge in a particular judicial post and decides whether to submit to the President of the Republic of Poland a proposal for appointment to that office relates to the right to apply for admission to the public service on equal terms, enshrined in Article 60 of the Constitution, and thus a right belonging to the category of constitutional rights and freedoms, to which the absolute prohibition of closure of legal recourse to the courts, as expressed in the Article 77(2) of the Constitution, refers. The Tribunal adjudicated that the total exclusion of the recourse to the courts by the contested provision of the second sentence of Article 13(2) of the Act on the National Council of the Judiciary is contrary to Article 45(1) and Article 77(2) of the Constitution in conjunction with Article 60 of the Constitution. However, the Tribunal emphasised that its judgment did not allow the applicant to appeal against the decision of the NCJ not submitting the applicant's candidacy for judge to the President of the Republic of Poland. Such an assessment, concerning the effects of the judgment, is supported by the need to ensure the stability of the functioning of the NCJ, as well as of other state bodies participating in the procedure of appointing judges. Applicants and, possibly, other interested parties will have the opportunity to re-apply for vacant judicial posts in subsequent competitions.
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