Bodnar: The neoKRS neo-senior cannot be considered independent

The composition of the National Judicial Council, formulated by amendments to the KRS Act of December 2018, was challenged as incompatible with Article 187 of the Constitution. As a result, it does not meet the standards of independency from the executive and legislative authority. prof. Adam Bodnar, the fresh Minister of Justice, addressed a letter to the Judicial Coordinators for global Cooperation and Human Rights in Criminal and civilian Matters, in which he notes that a justice appointed with the participation of this body cannot be considered independent and impartial.

In 1 of the early papers addressed to the judges, the Minister refers to the legal precedents in the case-laws of the European Court of Human Rights (judgment of 22 July 2021 – complaint No 43447/19, Dolińska-Ficek and Ozimek against Poland of 8 November 2021 – complaint No 49868/19 and 57511/19, Advance Pharma sp. z o.o. v. Poland of 7 February 2022 — complaint No 1469/20, Broda and Bojar v. Poland of 29 June 2021 — complaint No 26691/18 and 27367/18, Grzępa v Poland of 15 March 2022 — Complaint No 43572/18, Wałęsa v Poland of 23 November 2023 — action No 50849/21), judgments of the Court of Justice of the European Union (of 19 November 2019 — Case AK of the combined actions C 585/18, C 624/18, C 625/18, judgement of the Grand Chamber of the Court of Justice of the European Union of 6 October 2021 in Case C-487/19), judgement of the Polish ultimate Court (judgment of 5 December 2019 III PO 7/18, OSNP 2020/4/38, order of the ultimate Court of 15 January 2020 III PO 8/18, OSNP 2020/10/114, resolution of the Joint Chambers of the ultimate Court of Justice of 23 January 2020 (BSA 1-4110-1/20) and judgement of the ultimate Administrative Court of 26 June 2019, Il GOK 2/18, judgement of 11 October 2021, Il GOK 9/18, judgement of Il GOK 10/18, Il GOK 11/18, Il GOK 11/18, Il GOK 12/18, Il GOK 12/18, Il GOK 13/18, Il GOK 21, Il GOK 20/18, Il 21).

Political nominations

The Minister stresses that in Poland the hierarchy of legal acts clearly indicates that the Constitution of the Republic of Poland constitutes the highest act of law, and then global agreements ratified with the consent of the Sejm, the Act, and lower order implementing acts, specified as regulations, are placed. Moreover, the bodies liable for interpreting European Union law and the European Convention on Human Rights are the Court of Justice of the European Union and the European Court of Human Rights. The Minister points out the problem of politicized selection of judges and the phenomenon of "freezing effect".

– Over the last fewer years, both the hierarchy of legal acts and the constitutionally guaranteed tripartition of power have been profoundly affected by the depreciation of the importance of a number of binding global agreements and a crucial weakening of the warrant of the independency of the judiciary. During this period, a number of legislative changes were introduced, which, following the regulation of effective constitutional control, sought, inter alia, to undermine the independency of the judiciary by politicising the selection of judges-members of the National Judicial Council, or to supply the Minister of Justice with excessively broad individual and procedural powers in disciplinary proceedings. Moreover, it is devoid of independency and operating in a defective composition (with the participation of judges, elected for seats previously decently planted) The Constitutional Tribunal has issued respective judgments challenging the application of European Union law in Poland, as well as the European Convention on Human Rights. The amendment of the law — the law on the strategy of common courts (the alleged 'mandatory law') enabled judges to be punished for the content of judgments aimed at implementing the standards resulting from binding Poland global agreements and the Treaty on European Union and implementation of the case law of global courts – writes.

In addition, he stresses in his speech that these tools have been utilized effectively by initiating unjustified disciplinary proceedings against judges who have appealed in their decisions to European Union law and the European Convention on Human Rights. This method of action clearly sought to trigger a ‘freezing effect’ among the judges.

– All of this led to an effective simplification in the level of protection of civilian rights and freedoms, including the right to a fair trial, which should be likewise protected in the light of both the Polish Constitution and Poland's binding global agreements, including Article 19 TEU, and Article 6 ECHR – notes.

The Minister points out that the justice should be acquainted with the case law concerning neo-judges.

At the same time, it calls on the coordinators, erstwhile fulfilling their obligations under Article 16d of the Universal Courts Act, which includes, inter alia, the provision of information to judges, judicial assessors, referees and assistants of judges at their request, on the content of standards resulting from the European Convention on Human Rights and the applicable current case law of the ultimate Court and global bodies, to attach peculiar importance to the case-law ‘regarding the position of persons appointed to service as judges with the participation of the neoKRS as constituted by the Act of 8 December 2017’.

– I would besides like to point out to you that there are presently more than 300 cases before the ETPC, whose background has been the revision of the laws on the judiciary over fresh years. A number of cases in this area are besides recognised by the Court of Justice of the European Union. I encourage you to follow closely the fast-growing case law of the EU Court of Justice and of the ECHR on 3rd power, and to participate in training on this issue, including in the events organised by the European Commission Representation as part of the educational task “CJEU case-law” – points out and announces the organisation of seminars and trainings on the importance of the case-law of the EU Court of Justice and of the ECHR in the close future.

We remind you that the case law issued by the neo-judges is repealed by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.

What is neo-KRS and neo-Judge

The National Judicial Council was elected in a manner incompatible with the Constitution of the Republic of Poland, which makes it impossible for the Court of Justice to recognise it in the light of the adopted line of the jurisprudence of the ultimate Court and the TEU as a body acting as acting and having the power to appoint judges. Any justice appointed by that unconstitutional authority and appointed by the president to execute is besides served by a noe-judge who has no legal capacity to issue judgment,

At this point it will be justified to rise that the problem of vocations of "judges" after the formation of the "National Judicial Council" as a consequence of changes in 2017 has respective aspects. The first is related to the provisions of the Constitution of the Republic of Poland, which impose on public authorities, including the legislator, the work of specified appointment of judges to judicial duties, which guarantees the essential minimum independency and independency of the bodies active in the nomination process. This body is the National Judicial Board. engagement in constitutional standards for shaping the judicial composition of this body, creating an chance for politicians to form the Council, i.e. the election of members of the judges of the Council in their entirety by parliament (excluding the 1st president of the SN and the president of the NSA), has caused this body to neglect to meet constitutional requirements. This makes in any event the appointment of a justice question arise, which accompanies any man who puts his case under the judgement of the court, whether this court is simply a constitutional court.

In addition, this is the second aspect – in the doctrine to which I have given my hand, and in the case-law, there has been a method of verifying the correctness of the appointment of judges based on tools that have been in the strategy since forever, but mostly not utilized to measure the fulfilment of minimum conditions of impartiality and independence. It is the institutions (in the case of preventive control) – iudex sspectus and iudex inhabilis, and in the case of follow-up control – the absolute appeal condition, which is the incorrect cast of the court. On this thought the position of the resolution of the 3 Joint Chambers of the ultimate Court of January 2020 was placed. The resolution contained not precisely the right differentiation: indicating that, in the case of an SN, due to the nature of that authority, judges appointed after a advice of the KRS formed after 2017, do not supply guarantees of independent and impartial ruling. For this reason, it was considered that only this organization flaw justifies the claim that specified judges are deprived of material votum. The resolution did not competition that these persons had obtained the position of SN judges, but it was found that they had no power to issue judgments.

The judgments of specified ‘judges’ so far have been affected by the defect, given the inadequate cast of the court, which should be regarded as a failure to fulfil the constitutional request of the competent court referred to in Article 45(1) of the Constitution of the Republic of Poland. Failed judges should not rule. From the date of the resolution, these judges shall be incapable to rule. They do not have a material votum, although they have the position of judges. In the light of the above, it should be considered that, pursuant to Article 91(2) and (3) of the jurisprudence of the Court of Justice of the European Union and of the ECHR, the rule of precedence of the application of the law

This is justified in the judgement of the Court of Justice of the European Union of 6 October 2021 in Case C-487/19, as well as in the erstwhile judgement of the European Court of Human Rights of 7 May 2021, action No 4907/18. I remind the hooded court that, in accordance with Article 9 of the Constitution, the Republic of Poland is obliged to respect its binding global law. In accordance with Article 91(2) of the Constitution, an global agreement ratified with the prior consent expressed in the Act shall take precedence over the law if that law cannot be reconciled with the agreement. The position of judges and the guarantees of the independency of courts, which constitute the essence of the right to a fair trial, are enshrined in the provisions of the European Convention for the Protection of Human Rights and are further confirmed in Article 6(3) of the Treaty on EU. In the present case, the judgement given on 7 October 2021 by the Constitutional Court in the present – defective – composition of the case in Case No. K 13/21, which reconciles the interests of citizens.

Our position on the neo-CRS and neo-Judges appointed by this unconstitutional body confirms the position of the European Commission, which decided on 15 February 2023 to mention Poland to the Court of Justice of the European Union in connection with the controversial ruling of the Polish Constitutional Court. The Commission opened infringement proceedings against Poland on 22 December 2021. – The reason was the judgments of the Polish Constitutional Court of 14 July 2021 and 7 October 2021, in which it declared the provisions of the EU treaties to be incompatible with the Constitution of the Republic of Poland, explicitly questioning the rule of primacy of EU law. Without doubt, in light of the content of the judgement of the Court of Justice of the European Union (Grand Chamber) of 19 November 2019 (Nos C 585/18, C-624/18, C 625/18) and the resolution of the full composition of the ultimate Court of 23 January 2020 (BSA I-4110-1/20), there is simply a basis for concluding that the institution designated to guarantee the regulation of law is breaking the law and commits the crime.

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