The neoKRS appeal time has passed. Now we request to decision on to concrete measures towards this illegal institution

Those critics of the improvement of the KRS are not convinced that the current members of the Council will resign voluntarily. They point to the request for a fresh law, and the President's good will plays a key function in this process.

An appeal to the head of the state was included in a draft resolution by the associate under the title "on the removal of the effects of the constitutional crisis in the context of the constitutional position and the function of the National Judicial Council in a democratic legal state", which went to the Marshal's staff.

Parliament besides called for neo-Judges elected to the neo-KRS to cease their duties in the Council. According to the authors of the draft resolution, as well as many commentators and legal experts, the resolutions appointing members of the KRS are contrary to the Polish constitution and European law standards, as confirmed by the rulings of global tribunals.

Is this a force test?

The Council itself maintains that its actions in the current configuration are compatible with the applicable law.

The neoKRS spokesperson Ewa Łosińska, in a commentary on the portal “Rz”, emphasises that, in the opinion of the president, Dagmara Pawełczyk-Woice, the draft resolution, in the form in which it was published on Tuesday on the side of the Sejm, “distorts the seriousness of the Chamber and has no legal effect”.

“The Sejm may amend the existing provisions by adopting a fresh law on the National Judicial Council and may mention the proposal to the Constitutional Court. The resolution, on the another hand, does not change the current legal state – recalls the legally demoralized Ewa Łosińska. He adds: – any members of the KRS may take it as an effort to exert force on them.

From the point of view of the spokesperson for Judges Themis, Maciej Czajka, it is crucial that the Sejm called on all public authorities to engage in the process of restoring the independency of the National Judicial Council.

– I read it as a call for all these bodies to halt cooperating with the illegal neo-KRS," the justice emphasizes. He explains: "We anticipate that in practice all competitions will be stopped, so that fresh neo-judges will not be "produced", and these vacant judges will be revoked by the decision of the Minister of Justice. Legal representatives elected to the National Court registry – due to the fact that present this full body is illegal – and since the adoption of the resolution the Sejm will cease to participate in the deliberations.

The justice further points out that, at the time, the Presidents of the Courts and another institutions should not cooperate with the National Judicial Council due to the fact that "any another proceeding will be a fixture of a state incompatible with the Constitution, as the Sejm informs in its resolution".

– The most crucial is so the call made to all state authorities to affect themselves in the recovery of the Council's independence, the first step being to completely refrain from cooperating with an illegal body. specified steps should be taken in practice after the adoption of this insufficient and only delicate resolution, as stated by justice Maciej Czajka.

"People absolutely committed to their political imagination and mission"

According to the Ombudsman, long-term observations of the current Council, which operates with political denominations, lead to the conclusion that they are "absolutely devoted to their political imagination and mission", which means that no appeals will prompt them to take constitutional action.

The justice stresses that concrete action and legislative acts are now needed, which will lead to a situation where an illegal authority will not be able to carry out the functions provided for by the actual KRS. In his view, specified an initiative may put force on another state bodies to take steps to establish, inter alia, a fresh law on the National Court Register.

In Maciej Czajka's opinion, the Parliamentary resolution is insufficient, as the time for appeals for voluntary resignation or non-action by members of the KRS has passed. The justice points out that the judicial community expects concrete action to prevent an illegal state being established in the event of an illegal body that should be constitutionally compatible. The decision is now in the hands of the President.

Professor Ryszard Piotrowski, a constitutionalist from the University of Warsaw, is skeptical of the call for neoKRS members to cease their activities. It notes that the current KRS Act does not supply for specified a design, although it allows the word of office to expire as a consequence of its resignation. It besides stresses that appeals may prove ineffective and that the arguments set out in the resolution concerning the infringement of the Constitution and of European law erstwhile selecting members of the Council have already been raised. The constitutionalist shares the view that a remedy for these problems would constitute the establishment of a fresh law and the creation of a fresh membership of the KRS, but stresses that an agreement between the parliamentary majority and the president is needed for this purpose.

He recalled, however, that it was Andrzej Duda who signed the amendment to the KRS Act in late December 2017, which, according to many, led to the politicization of this institution.

We remind that, according to the judge, Piotr Pszczółkowski draws attention to the issue of representativeness of the members of the National Court Register.

"The present model regulation makes the KRS, a body which, in accordance with Article 186 of the Constitution, is to uphold the independency of the courts and the independency of the judges, a body with much more crucial political support than the judge's."

The justice emphasises that, in accordance with Article 11a(2) of the Act on the National Judicial Council, entities specified as a group of at least 2 1000 citizens or twenty-five judges are entitled to apply for a candidate as a associate of the Council, excluding those who are at rest.

"There is now a request for very advanced political support in the selection of members of the CoR: Members who elect members of the Council (model 276, out of 460 Members), while requiring a very low minimum threshold of support for a associate of the Council expressed by the judiciary (only 25 judges of around 10,000 Judges). Similarly, the request for a candidate to be a associate of the Council to get the support of a minimum of 2,000 citizens of nearly 38 million people should be classified as a tiny representative," explains Piotr Pszczółkowski.

The justice recalls that the Constitutional Court, through its judgement in Case K 12/18 of 25 March 2019, decided to waive the constitutional review of Article 11a of the Act on the National Judicial Council, which gives emergence to a problem concerning the representativeness of the National Court of Justice and the procedures for collecting letters of support for candidates for that body. According to the judge, this decision was taken hastily and may lead to a misconception that the effect of the Constitutional Court ruling on the anticipation for politicians to elect members of the National Court of Justice means compliance with the Constitution besides in the remaining scope of the regulation on the selection of members of the National Court of Justice.

"A holistic knowing of the Constitution requires that, in order to effectively carry out the constitutional tasks of the National Courts: to diagnose the threats of the independency of courts and the independency of judges and to prevent specified threats, it is essential to have the legitimacy of a large part of the judicial community that can objectively measure the work and attitude of a candidate for a associate of the Council. The reason and experience of life propose that, in order to keep the constitutional balance of authorities, the participation and support of the judiciary community in the selection of members of a constitutional body to safeguard the independency of judges and the independency of courts should not be little than the participation and support of another authorities – those before which the KRS is tasked to safeguard the judiciary."

Thus, the justice of the Constitutional Tribunal confirmed our position regarding the deficiency of power to issue judgments by neo-Judges who usage an illegal body nomination.

The Court of Human Rights (Reczowicz v Poland of 22 July 2021 – complaint No 43447/19, Dolińska-Ficek and Ozimek v 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).