The entry into force of the amendment of the Act on the National Judicial Council (CRS) as passed by the Sejm will open the way to competition the appointments of about 2.7 1000 neo-judges and neo-assessors, and even to place them of their own motion, warns in the opinion given to the legislature by the Ombudsman.
The Act amending the way the judges were elected to the KRS at the last gathering was dealt with by the advanced Chamber. During the joint deliberations of the legislature committees: legislative and human rights committees and the regulation of law, the Bureau of Legislative Office of the legislature Chancellery presented comments on the novels. And it estimated that the intention to prevent judges appointed at the request of the current KRS from taking part in the election to the fresh council could violate the fundamental law. As the legislature legislators recall, the Constitutional Court, in its judgement of 18 July 2007 (Event No K 25/07), has already determined that "on a constitutional level, there is no regulation that 1 of the judges of the ultimate Court, ordinary, administrative or military courts... may not choose or be elected to the CRS."
Prof. Marcin Wiązek besides submitted his comments to the novel.
In its appeal, the RPO stresses that most of its comments have not been taken into account by the Sejm (except as set out in paragraphs 5 and 8 of the attached opinion). He so requested the legislature to reconsider them, in peculiar those relating to the choice and competence of the Social Council at the CoR (point 7 of the opinion), which, in the proposed version, would not give civilian society a real impact on the selection of candidates for judges.
Furthermore, the RPO stressed in his speech that after his submission of the opinion there had been a crucial change in the text of the Act. In the first version of Article 2(1) of the Law amending the Law on the National Court Register, 15 of the 25 members of the National Court registry provided for the termination of the word of office of 15 of the 25 members of the National Court Register, while in the current version of Article 3 of the Act provides that as from the date of announcing the results of the judicial elections of the members of the National Court Board of the persons elected by the Sejm, the word of office of 15 of the 25 members of the National Court Office shall cease to exist.
According to the RPO, this means that there is presently no body called ‘National
Judicial Council’. This is not a purely editorial change, but it may be crucial in future to measure the position of judges appointed under the resolutions of the National Court registry (NeoKRS) after 6 March 2018 and for their judgments.
In his speech, the RPO points out that what is different is the designation of the KRS as an existing but flawed body (which is justified by national and European jurisprudence and was also
the presumption adopted by the authors of the first bill), and what is different is the designation that the KRS does not have a constitutional state body at all.
Furthermore, the RP in his speech stressed that the case law of the European Court of Human Rights and the Court of Justice of the European Union did not give emergence to the claim that the KRS did not exist.
The RPO stresses that the noeKRS is simply a body whose composition has been shaped in violation of the warrant of the independency of judicial authority – which, of course, requires the intervention of the legislator – but does not overturn the fact that, legally speaking, that body exists.
It will be reasonable to rise that the position of the RPO in the absence of a legal basis to usage this problem is incorrect. This follows from Article 46 The Convention on the Protection of Human Rights and Fundamental Freedoms, which obliges Poland to respect the judgments of the European Court of Human Rights in Strasbourg, especially in matters concerning changes to the Constitution and laws governing the procedures for appointing judges and the structure of courts.
In the following part of the RPO's speech, it points out that the adoption of the presumption on which the wording of the Act adopted by the Sejm is based may in the future mean that all acts taken by the ‘non-existent’ KRS may besides be regarded as non-existent by law and, consequently, the resolutions requesting the appointment of a justice or asessor adopted in the last six years may besides be considered ineffective.
With the task of an ombudsman who has clearly become illegal “judges” appointed by Duda since 218, this will in turn open the way to competition the existence of around 2,700 neo-judges and neo-assessors, and even to submit them out of office by means of a parliamentary majority decision by means of a bill.
According to the RPO, this situation may lead to questions of the validity of millions issued by these unauthorised neojudges and neo-assessors of judgments.
Consequently, the RPO considers that the fresh wording of Article 3 of the Act amending the KRS Act should be considered incompatible with the rule of legal trade safety (Article 2 of the Constitution).
Furthermore, in his speech, the RPO added that Article 3 of the Act would make a dangerous precedent due to the fact that it would be
the first case in the past of the 3rd Republic, erstwhile Parliament declared the constitutional body of the state non-existent.
The RPO stressed that even during the political transition in 1989, erstwhile the National Judicial Council was established as the deciding body for the selection of candidates for judges, it was not decided to recognise the preceding State Council as a non-existent body.
The RPO stressed that at the time the constitutional legislature, in the name of legal certainty, did not competition the en bloc validity of the judicial appointments made by the Council of State, even though, of course, the appointments made by that body were carried out under conditions which had nothing to do with the guarantees of the independency of the judiciary and the independency of the judges.
The Ombudsman besides points out in his speech that the current neo-KRS has been flawed and that the judicial appointments made with it are subject to a legal defect but are not invalid;
non-existent. It is besides not possible to agree with the RPO’s claim in this respect due to the fact that the case law issued by the neo-Judges and neo-Asessors 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.
According to the RPO, the way in which the judges of the KRS were elected should be amended and the neo-judges appointed at the request of the defective Council should be subject to individual verification, in a circumstantial procedure governed by the Act ensuring a comprehensive and fair assessment of the judges of that group.
In view of the prevailing legal chaos in the scope of the NoeKRS, the Ombudsman stressed that he favourably assessed the proposed change in the way the judges of the KRS were elected, while I negatively assessed the form of termination of the current neoKRS, which would in future make it more hard to organise the position of the concerned
groups of judges respecting the Constitution.
The Ombudsman will besides stress in his speech that the neo jurisprudence referred to above – although called in violation of law – is inactive in his opinion a justice within the meaning of Article 180 of the Constitution, which is clear from, for example, the case law of the ultimate Court (see paragraph 46 of the Resolution of the 3 chambers of the ultimate Court of 23 January 2020, BSA I-4110-1/20).
This claim, as we pointed out earlier, is incorrect, as follows from the many case law of global tribunals and many judgments issued by the SN respecting the case law of the TEU and ETPC.
How do we reconstruct the regulation of law?
In our opinion, solving the problem of neojudges, which would be without prejudice to any legal rules, would require zeroing out everything these judges have done. For applicable reasons, it is unacceptable.
If we are to decide individually about the position of neojudges, we are faced with a choice: we can either search the most (apparently) legal solution, which, however, will contain a hidden political decision, or we can adopt a solution openly violating the legal rules, but not concealing its political character.
And this choice, in itself, is simply a political choice.
We remind you that not only we and a large part of the legal community believe that neoKRS is an illegal institution. A akin view is given by justice Pszczółkowski, who, in a distant sentence, stated that the present KRS was not a body shaped as required by the Constitution.
Its arguments are based on the provisions concerning the composition of the National Court Board, in peculiar concerning Article 9a of the Act on the National Judicial Council. Changes in the membership of the KRS introduced in 2017 are contrary to Article 187(1) of the Constitution, according to justice Pszczółkowski.
The justice stresses that, in accordance with the Constitution, compliance with the requirements for the formation of the body, including the NRS, is simply a essential condition for that authority's ability to exercise its powers. In this context, it lists the anticipation of making applications to the Constitutional Court in cases relating to the independency of courts and the independency of judges.
This position is applicable for the assessment of the legitimacy of the National Court of Justice in proceedings before the Constitutional Court, especially in the context of budgetary issues and the freezing of judges' salaries. justice Pszczółkowski points out the importance of complying with constitutional standards in the formation of bodies which play a key function in the legal system, specified as the National Judicial Council.
"National Judicial Council in a composition formed pursuant to Article 9a of the Act of 12 May 2011 on the National Judicial Council (Journal of Laws of 2021 item 269, as amended; hereinafter: KRS Act) – added pursuant to Article 1 point 1 of the Act of 8 December 2017 on the amendment of the Act on the National Judicial Council and certain another laws (Journal of Laws of 2018 item 3; hereinafter: the Act of 2017) – is not a body shaped in the manner required by Article 187(1) of the Constitution," wrote a separate justice Piotr Pszczółkowski.
Further on, the TK justice explains why the current mechanics for shaping the composition of the KRS "shades the constitutional structure of this body".
‘This is for at least 2 reasons. Firstly, the legislator, by abandoning the established constitutional practice, entrusting the judges themselves with the election of judges – members of the National Court of Justice, and transferring this competence to the Sejm, granted this political authority a decisive influence on the cast of an excellent majority of the Council (i.e. the selection of 19 out of 25 members). Secondly, the legislator, erstwhile introducing a fresh mechanics for the selection of judges – the members of the NRS did not comply with the request that representatives of each group of judges of all types of courts mentioned in Article 187(1)(2) of the Constitution should be included in the Council,” states the separate sentence.
In the erstwhile period (i.e. from the establishment of the National Court registry in 1989 until the amendments were made in 2017), the selection procedure for the members of the Council was as follows: those elected from among the judges were selected by the judges themselves. More specifically, the 2 members of the National Judicial Board were elected by a general assembly of judges of the ultimate Court of that Court; 1 associate of the National Court of Justice was elected by a general assembly of judges of the ultimate Court of that Court of Justice; 2 members of the National Court of Justice were elected by a general assembly of judges of appeal courts of that court; and 9 members of the National Court of Justice were elected from among its members by meetings of representatives of general assemblies of judges in provincial courts. Additionally, 1 associate of the KRS was elected by the General Assembly of Military Court Judges from among the judges of those courts.
In the opinion of Piotr Pszczółkowski, the breach of the structural balance of the National Judicial Council resulting from the Constitution occurred erstwhile the legislature, by means of the 2017 Act, entrusted the Sejm with the power to elect 15 judges to be members of the National Court Register. According to the judge, the transfer of 19 people (including members of the CoR) from 25 seats in the Council to a single political authority made the bulk of the Council's composition dependent on the decision of the current parliamentary majority.
The Constitutional Court justice cites the judgments of the European Courts of Justice and Human Rights, which state that the National Judicial Council has lost the essential independency from political power and is incapable to make independent and nonsubjective selection of candidates for judges, nor to apply to the president of the Republic of Poland for the appointment of judges.
‘I believe that these reservations should be duly addressed besides to the ability of the Council to exercise another powers in the field of safeguarding the independency of courts and the independency of judges, including its usage to the Court of Justice with applications under Article 186(2) of the Constitution. I besides have the impression that the Constitutional Court has already seen the problem itself, refusing to mention to the case. K 12/18 examination of the legitimacy of the National Judicial Council to request only to confirm its own legal position. “” states the judge.
Piotr Pszczółkowski draws attention to the issue of representativeness of members of the National Court Register, which has been examined by the Constitutional Tribunal.
"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 deficiency of power to give judgments by persons utilizing nominations issued on the basis of illegal competitions organised by a criminal body impersonating the KRS is besides justified in the case-law 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).
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 amendment to the National Court registry Act gives grounds to respect the position of neojudges and neo-assessors and their case law
