On 1 October 2024
National Polish Association of Judges „Sędziowie RP”
w Krakowie
Aleja Powstania Warszawskiego 15
31-539 Kraków;
e – mail:
kontakt@sedziowierp.pl
biuro@sedziowierp.pl
The Venice Commission of the Council of Europe
Directorate General
for Human Rights and Rule of Law (DG-I)
Council of Europe
67075 Strasbourg Cedex
France
Position of the National Association of Judges ‘Sędziowie RP’ in Krakow
in relation to the question of the Minister of Justice Mr Adam Bodnar on the regulation of the status of judges appointed or promoted after 2017.
Following the undertaken information that the Minister of Justice has asked the Venice Commission for an opinion on judges appointed after 2017, we would like to present our position. We would like to point out at the outset that we are not familiar with the Minister’s question and therefore our position may not be fully relevant to it. However, we hope that representatives of the commission will come to Poland and then we will be able to convey our position in person.
We would also like to point out that, contrary to the claim presented in the public space that the announced solutions were agreed with representatives of all legal circles, the judges and assessors affected by the project were not even invited to the meeting with the Minister of Justice and the Prime Minister, which took place on 6 September 2024. Moreover, our association, following the Prime Minister’s announcement that he wanted to meet with the legal communities, directly requested the Prime Minister to invite them to the meeting. Unfortunately, our request has remained unanswered until today.
As for the advisability of addressing at all the alleged problem of judges appointed after the entry into force of the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts (Journal of Laws of 2018, item 3) [referred to as judges appointed after 2017], it should be pointed out that this is an artificial problem created for the purposes of political struggle and the private interests of a group of judges gathered in the Iustitia and Themis associations. All judges in Poland elected after 2017 were elected in a procedure that is in accordance with the Polish Constitution. It should be recalled that according to Article 9a(1) of the above-mentioned Act, judges to the National Council of the Judiciary are elected by the Sejm. Pursuant to Article 187(1)(2) of the Polish Constitution, the National Council of the Judiciary is composed of, inter alia, fifteen members elected from among judges, without specifying who is to make this election (unlike in the case of deputies and senators, as here it is expressly stipulated that this is done by the Sejm and the Senate respectively). This issue is left to the discretion of the legislator on the basis of Article 187(4) of the Constitution of the Republic of Poland (the system, scope of activities and work procedures of the National Council of the Judiciary and the manner of election of its members are determined by statute).
No Polish court has challenged the constitutionality of the Act of 8 December 2017. The status of judges has also not been challenged by any European Court, i.e. the Court of Justice of the European Union and the European Court of Human Rights. The decision of the Court of Justice of 15 July 2021. (C- 791/19) concerned the Disciplinary Chamber of the Supreme Court (as a whole and not the status of individual judges) and, moreover, in this ruling, the Court stated that a body such as the National Judicial Council, which participates in the process of appointing judges and is composed predominantly of members elected by the legislature, cannot in itself lead to doubts as to the status of a court previously established by law and as to the independence of the judges selected in this process (104).
Also, the jurisprudence of the European Court of Human Rights does not concern the status of judges, but concerned one of the Chambers of the Supreme Court. Furthermore, it should be pointed out that the system of electing judges in Poland does not deviate from European standards. It is similar to the system of electing judges in Spain, and far less politicised than in Malta, where the Prime Minister has the deciding vote, and in Germany, where judges to the federal courts are elected directly by political bodies.
It should be noted that the European Commission also does not see the need to verify the judges, for on 29 May 2024 it terminated the Article 7 procedure of the EU Treaty against Poland, which was initiated in 2017. If it were otherwise, after all, there would be no basis for such a decision. Even in the situation where it is considered that judges should nevertheless elect judges to the National Council of the Judiciary (which our Association does not agree with), there are no grounds for concluding that judges elected after 2017 should be subject to any review or disciplinary proceedings. Indeed, according to Article 180(1) and (2) of the Constitution, judges are irremovable, and a judge’s removal from office, suspension from office, transfer to another seat or to another position against his or her will can only take place by virtue of a court decision and only in cases specified by law.
There can be no independent judges without the reality of these guarantees and such guarantees are an international standard and in many countries they are protected at a constitutional level e.g. in France, in Portugal, in Italy, in Finland, in Israel, in the Netherlands. The principle of non-removal of judges is treated very strictly by democratic countries. The CJEU judgment of 24 June 2019 should be recalled here. (C-619/18, in particular paragraphs 75-91) in which the Court held that a reduction in the age at which judges retire can be treated as a removal from office. Also linked to the principle of non-removal of a judge is the concept of vetting a judge. The vetting of a judge takes place when we reassess a judge, his or her level of knowledge, experience and ethical attitudes, and it is not about some act unworthy of a judge, but about an authoritarian acknowledgement that some group of judges or some judge is to be vetted because the legislature or the Minister so decided. It should also be assumed that what is at stake here is a forced vetting, failure to submit to which would be tantamount to demotion to a lower court or, in general, removal from the profession. Of course, an unsuccessful verification would entail the same result. Such a solution should be considered unequivocally as removal from office. Such an interpretation is due to the fact that the Constitution does not provide for such a form of evaluation of a judge and, moreover, the potential effect could be tantamount to a loss of position. This interpretation is based on the fact that the Constitution does not provide for such a form of evaluation of a judge and, moreover, the potential effect could be tantamount to loss of office. The review is not a disciplinary proceeding, but a reassessment of his or her qualifications, and this is prohibited.
Verification of judges is only possible in a situation of transition from a totalitarian to a democratic system. Such a situation occurred at the turn of 1989/1990, and even then it was not decided, despite the fact that judges were elected by a completely politicised body such as the Council of State and, moreover, it had no democratic legitimacy to exercise power (it did not come from free and democratic elections). It should also be added that the Constitution in force at the time allowed for the dismissal of judges. Therefore, the real motives of the Minister of Justice’s application to the Venice Commission are not fully known, since in the period from 2017 to 2023, the authority was legitimised by democratic elections and any changes were made in accordance with the procedure provided for by the Constitution adopted by the People in a referendum.
National Association of Judges ‘Sędziowie RP’ in Kraków also draws attention to the consequences of allowing the vetting of judges or initiating any disciplinary proceedings against them simply because they participated in the procedure for the appointment of judges after 2017 or participated in the procedure for the appointment of the National Judicial Council under the current Act on the National Judicial Council.
Indeed, it should be noted that at no time between 1997 and 2017 was there a law ‘on the National Council of the Judiciary’ that was fully compliant with the Constitution and international standards. Until 1997. The National Council of the Judiciary was a statutory body and its status was not regulated by the Constitution. After the entry into force of the Constitution, it became a constitutional body. However, it did not regulate active and passive electoral rights. Against the background of this regulation, attention should be drawn to the ruling of the Constitutional Tribunal of 18 July 2007. (K 25/07) in which the Court stated that ‘At the constitutional level, there is no restriction that any of the judges of the Supreme Court, common courts, administrative courts or military courts, indicated in Article 187(1)(2) of the Constitution, may not be elected or may not be elected to the composition of the NCJ. This also applies to presidents and vice-presidents of common courts’.
It is therefore necessary to look at how the procedure for electing judges to the National Council of the Judiciary looked. The General Assembly of Judges of the Supreme Court elected two members of the Council from among the judges of that Court. The General Assembly of Judges of the Supreme Administrative Court, together with representatives of general assemblies of voivodship administrative courts, elected two members of the Council from among judges of administrative courts. The Meeting of Representatives of the Assemblies of Judges of Appellate Courts elected two members of the Council from among themselves. The assembly of representatives of general meetings of circuit court judges elected eight members of the Council from among its members.
The Assembly of Judges of Military Courts elected one member of the Council from among its members. It is clear from these provisions that all judges of the Supreme Court, administrative courts and military courts had the passive right to vote. Judges of general courts, on the other hand, did not. It should be clarified here what the meetings of representatives were. The judges of courts of appeal elected 1/5 of their representatives from among themselves, and the judges of a given circuit elected representatives from among themselves in the amount of 1/50 of the total number of judges of a given circuit. It follows from this that the assembly of representatives of appellate judges comprised 1/5 of the total number of judges, and the assembly of representatives of the general assemblies of district judges comprised 1/50 of the number of judges.
We do not have exact figures, but it can be assumed that there are approx. We do not have exact figures, but it can be assumed that there are about 500 appellate judges, so their assembly could number about 100. There may have been about 8,000 district and circuit court judges, so their assembly may have numbered at most 160. It follows, therefore, that around 8,000 general court judges were deprived of their passive electoral right. Of course, it is possible to accuse any judge that he or she could have done a better job of persuading colleagues to elect them, but the problem is that this was a systemic solution and necessarily not all of them could have been elected. It must therefore be concluded, in the light of the Constitutional Tribunal’s judgment referred to above, that the provisions defining the method of election of Council members were clearly unconstitutional.
In addition, it should be pointed out that the same group of judges was deprived of active voting rights. Therefore, the slogan that until 2017 the National Council of the Judiciary was elected by the judges is not true. The National Council of the Judiciary was elected by the judges is not true. It was elected by a small group of judges. The problem of the election of the ‘old’ National Council of the Judiciary should also be looked at from the point of view of the principles of a democratic state under the rule of law. Even if we assume that the judges to the National Council of the Judiciary should be elected by the judges (a factor with which our association disagrees), this must take place in democratic elections. The conditions of universality and equality must therefore be met. We pointed out above that the premise of universality was not fulfilled, but neither was the election equal. The judges of the Supreme Court had two elected representatives (1 representative per 50 judges), the judges of the appellate courts also had two elected representatives (1 representative per 250 judges), the other judges of the common courts had eight elected representatives (1 representative per 1,000 judges). Analysing these figures, it is difficult to consider that we are dealing with democratic elections even among the judges themselves.
The issue of how the National Council of the Judiciary is constituted should also be looked at from the point of view of the constitutional principle of the supreme power of the nation. The judiciary is the third power. It has an extremely significant impact on the functioning of individuals as well as being able to influence the activities of the administration. It can intervene in people’s lives in a commanding manner. There is a whole apparatus of coercion to enforce the decisions of the courts. Is it possible, therefore, to create a system in which the public has no influence (even indirectly) on the selection of judges. Well, this creates an oligarchic system, which is very dangerous for democracy and for the functioning of the rule of law in general. Someone may say that, after all, the Sejm, the Senate and the President present their candidates. However, there are only seven in total. If we add to this the President of the Supreme Administrative Court and the First President of the Supreme Court, over whose election the President has some influence, and the Minister of Justice, there are 10 people with democratic legitimacy. Meanwhile, the elected judges themselves are 15 people, so they had an absolute majority and could marginalise the remaining group of members. We believe that the election of judges to the National Council of the Judiciary with total disregard for democratic control is contrary to the principle of the supreme power of the people.
A frequently raised argument as to how the current Council was elected is that the influence of political power on its composition is so great that it does not guarantee the fulfilment of the tasks of protecting the independence of judges and the independence of the courts. In this context, it is important to ask what the old Council did for the independence of judges and the independence of the courts. The elections to the Supreme Court before 2018 were clearly unconstitutional. This was due to the fact that a candidate applied for the Supreme Court and the matter went to the Supreme Court General Assembly. The Assembly presented at most two candidates to the National Council of the Judiciary (and could also present one). There was no appeal against the Assembly’s decision. Thus, the National Council of the Judiciary and the President (two constitutional bodies whose role in the process of appointing judges is clearly defined in Article 179 of the Constitution /judges are appointed by the President of the Republic, on the proposal of the National Council of the Judiciary, for an indefinite period of time/) were reduced to the role of accepting the decisions of the General Assembly of the Supreme Court Judges, and one must ask oneself how the ‘old’ National Council of the Judiciary fought for the rule of law in this area.
The answer is simple – it did not fight at all. One judge competed in a competition for a senior judicial position and, during the nomination process, objected to the visiting judge’s opinion of his performance evaluation. He was disciplined for this. A couple of years ago, the ECtHR punished Poland for this (judgment of 18.10.2020 No. 965/12). Everything happened under the ‘old’ Council. We have not heard anything that the Council defended this judge at the disciplinary stage. The question is why it did not defend this judge’s freedom of expression. Thus, it can be said that the ‘old’ Council did not provide any guarantees at all for the defence of judicial independence and judicial independence (despite being ‘elected by the judges’) and these are not mere theoretical divagations but conclusions drawn from concrete facts.
A separate group also consists of persons appointed and promoted by the Speaker of the Sejm, which is unconstitutional.
The guarantee of judicial independence is created by the principle of non-removability and non-assignability of the judge, and only such guarantees matter to the judge, only this gives freedom in the exercise of justice.
The above comments on the manner of selection of judges and the manner of selection of judges to the National Judicial Council before 2018. served to illustrate the consequences of carrying out any verification of judges or initiating any disciplinary proceedings against them simply because they participated in the procedure of appointing judges after 2017 or participated in the procedure of appointing the National Council of the Judiciary under the current Act on the National Council of the Judiciary. Well, considering it acceptable to try to verify judges appointed after 2017 or to initiate disciplinary proceedings against a certain group of judges (for acting in accordance with the law) will create a precedent which will be used in the future by successive governments, and they will find a strong justification for their actions precisely in the defectiveness of the appointments of judges and the National Council of the Judiciary up to 2017 and from the precedent which may be set in Poland.
Our concern is compounded by the legislative proposals presented – by the Minister of Justice – on 6.09.2024. Well, the Minister provided for the division of judges into three groups:
- those appointed to the profession after completing their training at the National School of Judiciary and Public Prosecution – no action will be taken against them;
- persons who have held some position in the courts, signed letters of support for candidates for the National Council of the Judiciary, stood for election to the Council and participated in promotion procedures or in the admission procedure. Disciplinary proceedings are to be initiated against these individuals, and it is unclear whether the consequence of disciplinary proceedings is to be removal from the profession or return to their previous position. What is interesting about this proposal, however, is that it is the law – in advance – that is to determine the punishment. Thus, it is not the disciplinary court that is to determine the consequences of a particular behaviour, but the law. It is the law that is to determine that a judge has committed a disciplinary tort, not the court. It should be noted that the currently permissible penalties are: warning, reprimand, fine, transfer to another court and removal from office. As of today, the penalty of demotion to a lower position does not exist at all;
- people who have not held any office will be able to submit so-called ‘active repentance’ an institution characteristic in Polish law for criminals. In fact, this is supposed to be an act of loyalty to the Minister of Justice. Special verification commissions will be set up to assess whether a judge qualifies for ‘active regret’. They will then be able to return to their previous position and no disciplinary proceedings will be initiated against them. It should be noted that the third group may include people who have been appointed to judicial positions from other professions and are offered a position – assistant judge.
This is surprising, as it is the allegedly defective formation of the National Council of the Judiciary that is supposed to be the reason for the vetting of judges, so it is unclear why judges are being differentiated. Interestingly, however, those who applied for a position on the National Council of the Judiciary but did not get it are also to be penalised. On the other hand, judges who participated in the nomination process but were ultimately not appointed will no longer be subject to any penalty.
It should be added at this point that the current judges in the disciplinary courts were appointed to the disciplinary courts with a significant legal defect and this was a deliberate action. Pursuant to Article 110a § 1 of the Act ‘Law on the system of common courts’, the Minister of Justice entrusts the duties of a judge of a disciplinary court at an appellate court to a judge of a common court having at least ten years’ seniority in the position of a judge, after consultation with the National Council of the Judiciary. It is clear from this regulation that the Minister of Justice may entrust the function of disciplinary judge only after obtaining the opinion of the National Council of the Judiciary. Meanwhile, all judges were entrusted with the duties of disciplinary judge without an opinion. Moreover, it should be noted that only judges appointed or promoted before 2018 were appointed to these courts.
In its ruling of 15 July 2021 (C- 791/19), the Court questioned the Disciplinary Chamber of the Supreme Court. One of the reasons was that this chamber was composed exclusively of judges appointed after 2017. (94). Thus, it should be explicitly stated that these courts do not have the status of courts established by law and do not guarantee the perception of these courts as independent and impartial bodies (Article 6 of the Convention ‘for the Protection of Human Rights and Fundamental Freedoms).
It should be mentioned that the proposed changes are accompanied by circumstances such as: the issuance on 13.12.2023 of instructions to coordinating judges on what answers to give to judges from other countries, the illegal and forcible takeover of public television, the illegal dismissal of some 80 court presidents, the illegal takeover of the National Public Prosecutor’s Office, the failure to allow Mr Dariusz Barski, the National Public Prosecutor, to remain in office despite the Supreme Court ruling.
The implementation of the proposed ideas will undoubtedly lead to a crisis in the rule of law for many years and, as has already happened in the history of Poland, may lead to the collapse of the state. The presented legislative assumptions are in clear contradiction with European values.
On behalf of
National Polish Association of Judges
Sędziowie RP’ w Krakowie
President
Judge of the Court of Appeal
Zygmunt Drożdżejko
