On Wednesday, the Sejm adopted a resolution aimed at restoring order to the illegal and politicised National Judicial Council. The resolution calls for the suspension of the activities of current neo-KRS members and calls for action by the President. During the Wednesday debate, the Sejm examined a draft resolution on "removing 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".
As a consequence of the vote, 239 Members voted in favour of the resolution, while 169 were against; no associate abstained.
Judgments can be challenged
The resolution provides for the anticipation to challenge the selection of neo-KRS members who have been elected to this illegal body in a way contrary to the constitution. The lower chamber called for them to halt immediately. Applicants and many commentators and legal experts indicate that the resolutions appointing neo-KRS members violate the Polish Constitution and European law standards, which is besides confirmed by the rulings of global tribunals. The resolution besides called on the president and another public authorities to take action, while stressing the request to adopt a fresh law on the National Court registry and to choose a fresh composition of that institution.
During the Wednesday meeting, MP Krzysztof Paszyk, representing the parliamentary factions of the KO, PSL, Poland 2050 and the Left, pointed out that the current legal situation in the country has the biggest losses for citizens.
– It must be made very clear – without stigmatizing the judges who have been appointed by the “neo-KRS” – that judgments that will be settled, and which apply to each Polish and all Pole, will not be final sentences. Whether in matters of property or household – very delicate – there will always be, unfortunately, a danger and hazard that someone, in the main or global courts, will competition this judgment," said Krzysztof Paszyk.
The question of legal implications
Other representatives of the current parliamentary majority expressed a akin position, supporting the content of the resolution during the debate. Unanimously they considered that the illegal and politicized National Judicial Council (neoKRS) in its current form had long lost credibility and independence. As a result, in subsequent years Poland may be forced to pay crucial compensation to people whose cases were settled by neo-judges appointed by the current KRS. This in turn brings crucial costs. Members besides thanked the judges who criticised the reform, bearing crucial professional consequences.
The contrarguments were presented by associate Sebastian Kaleta of the PiS parliamentary club, erstwhile Deputy Minister of Justice, who assessed that the resolution would have no legal effect. He pointed out that he would only become the origin of the fresh majority of parliamentary anarchy in the courts, while addressing political opponents: “For years, being in full opposition, you and a group of judges have destabilized the state; now you want to impose anarchy on Poles as a state policy.”
Justice Minister Adam Bodnar announced in the Sejm that the adoption of the resolution was only the first, symbolic step towards restoring the regulation of law.
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 illegality claim of the KRS is besides justified in the case law of the European Court of Human Rights (judgment in cases Reczkowitz v Poland of 22 July 2021 – complaint No 43447/19, Dolińska-Ficek and Ozimek v Poland of 8 November 2021 – complaints Nos 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).
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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The Sejm adopted a resolution calling for the neoKRS to immediately end operations. Sentences given by neo-Judges can be challenged:
