- The position of court president involves a range of powers that have a significant impact on the functioning of the justice system, which is why the possibility of dismissing a judge from this position is subject to a special procedure designed to protect the independence of the judiciary, requiring, among other things, the consent of the collegium of the court concerned or the National Council of the Judiciary.
- The former Minister of Justice, Adam Bodnar, repeatedly attempted to circumvent the requirements of this procedure, which led to the Constitutional Tribunal issuing a ruling indicating that the procedure was partially unconstitutional.
- Instead of amending the provisions challenged by the Constitutional Tribunal, the new Minister, Waldemar Żurek, decided to continue applying them and then openly announced that he also intended to violate the provisions that had not been challenged by the Constitutional Tribunal and dismiss the presidents despite the negative opinions of the court collegiums.
Attempts by the executive branch, in the person of the Minister of Justice, to exert extra-legal influence on the judiciary are, unfortunately, one of the main hallmarks of the so-called ‘restoration of the rule of law’ by the current government. This includes, in particular, attempts to take action without any legal basis or in serious violation of the law, contrary to the provisions of Article 7 of the Constitution (Public authorities shall act on the basis of and within the limits of the law).
Such actions, initially taken almost from the very beginning of his term of office by Minister Adam Bodnar and now continued by his successor, Waldemar Żurek, include announcing the dismissal of court presidents and vice-presidents. The function of the president of a given court is extremely important from the point of view of the daily work of the judiciary – in accordance with Articles 22 and 21 of the Law on the System of Common Courts, the president of the court, among other things, manages the court and represents it externally, ensures the proper internal functioning of the court, and is the superior of judges, assistant judges, court clerks and assistants to judges of the court, assigns and dismisses judges, assistant judges and court clerks, and (after consulting the court’s collegium) determines the assignment of judges, assistant judges and court clerks to court divisions, their duties, the manner of their participation in the assignment of cases, and the duty and substitution schedule. The latter competence is particularly important, as it has recently been used to circumvent the principle of random assignment of cases to judicial panels (Minister Żurek has recently presented a draft bill that directly restricts this principle, in a manner that is otherwise contrary to the law – if adopted, as we recently reported, the role of court presidents would become even more important).
It is therefore not surprising that ministers have attempted to influence the judiciary by dismissing presidents considered unfavourable to the government and appointing their own nominees in their place. The actions of Minister Bodnar, who, often guided by political motivations, attempted to announce the dismissal of court presidents, bending the applicable procedure, led to the Constitutional Tribunal issuing its ruling of 16 October 2024. K 2/24, which found that this procedure was partially unconstitutional. Meanwhile, Minister Żurek not only ignored this ruling entirely, but also openly and explicitly declared that he would not adhere to the applicable procedure set out in Article 27 of the Law on the System of Common Courts!
Procedure for dismissing presidents and vice-presidents of courts
At this point, it is worth briefly recalling this procedure. If one of the statutory conditions is met:
1) gross or persistent failure to perform official duties;
2) when the continued performance of duties cannot be reconciled with the good of the administration of justice for other reasons;
3) a finding of particularly low effectiveness in the performance of administrative supervision or the organisation of work in the court or lower courts;
4) resignation from office.
– The Minister may send a letter to the collegium of a given court (i.e. a body composed of the president of that court and the presidents of directly lower courts within the jurisdiction of that court) expressing his intention to dismiss its president, together with a written justification. When submitting such a letter, the Minister may simultaneously suspend the president or vice-president of the court from performing their duties.
If the collegium issues a positive opinion (agrees to dismiss the president or vice-president) or does not issue any opinion within 30 days, the Minister of Justice may dismiss the president of the court – there is no right of appeal against such a decision. However, if the collegium issues a negative opinion, this does not preclude the possibility of dismissal – in such a case, the Minister of Justice may present his intention to dismiss, together with a written justification, this time to the National Council of the Judiciary. Under the provisions of the Act, the objection of the National Council of the Judiciary is binding on the Minister only if it is expressed by a two-thirds majority within thirty days.
Minister Bodnar’s abuses and the Constitutional Tribunal’s ruling
In practice, therefore, the above solutions leave the Minister with a fairly wide scope to dismiss presidents and vice-presidents of courts – all he needs to do is convince more than one-third of the members of the National Council of the Judiciary to support his motion. Despite this, Minister Bodnar tried in various ways to circumvent the applicable procedureso that he would not have to submit his motion to the National Council of the Judiciary, which he unjustifiably refused to recognise. For example:
- he allowed a person appointed to perform the function of president in connection with his suspension, which suspension resulted precisely from a request for the college to issue an opinion on the dismissal, to participate in the meeting of the college of the courtin question,
- at the same time as the request for the dismissal of the president of the regional court, he submitted requests for the dismissal of all presidents of district courts operating in the given district, thereby suspending them from their functions and preventing them from participating in the regional court’s collegium,
- he considered that the college of the court had not issued an opinion due to the form of its position, even though the provisions of the Act do not establish any requirements in this regard.
Minister Bodnar’s actions led the Constitutional Tribunal to issue the above-mentioned judgment of 16 October 2024 in case K 2/24, in which it referred to the practices described above. In particular, the Constitutional Tribunal ruled that the following are unconstitutional:
- depriving the National Council of the Judiciary of participation in the procedure for suspending the president or vice-president of a court from performing their duties and failing to specify the duration of the suspension of the president or vice-president from performing their duties,
- depriving the National Council of the Judiciary of participation in the procedure for dismissing the president or vice-president of a court, in a situation where the collegium of the competent court issues a positive opinion or fails to issue an opinion within thirty days of the Minister of Justice presenting his intention to dismiss the president or vice-president of the court,
- limiting the binding nature of a negative opinion of the National Council of the Judiciary issued on the intention to dismiss the president or vice-president of the court to resolutions adopted only by a two-thirds majority.
On this occasion, the Constitutional Tribunal, referring also to its earlier case law, made a number of general comments on the significance of the rules for appointing and dismissing presidents and vice-presidents of courts from the point of view of the principle of judicial independence and the independence of courts:
“If the position of president is connected with the exercise of jurisdictional functions, entrusting the power to appoint and dismiss the president to an administrative body violates the principle of judicial independence.” […] Allowing the president or vice-president of a common court to be dismissed by a decision of the Minister of Justice that is not subject to any review, and therefore an arbitrary decision of the executive, leads to an unjustified violation of the principle of the separateness and independence of the judiciary and the independence of judges.
Importantly, some of the Constitutional Tribunal’s rulings were consistent with the proposals put forward in June 2024 by the Ombudsman, who pointed out that the procedure at that time had the following shortcomings:
- the irrevocability of the Minister of Justice’s decision in the event of a positive opinion from the college, which violates the right of the dismissed person to access the courts (Article 45(1) of the Constitution and Article 6 of the European Convention on Human Rights);
- the binding force of a resolution of the National Council of the Judiciary was limited to situations where it was adopted by a two-thirds majority, which was a repeat of the unconstitutional solution from 1993;
- the inability of the dismissed president or vice-president to appeal to the court against a resolution of the National Council of the Judiciary that is unfavourable to him or her, which violates his or her right of access to the courts (Article 45(1) of the Constitution and Article 6 of the European Convention on Human Rights).
The Ministry declared at the time that the Ombudsman’s proposals would be submitted to:
the Commission for the Codification of the Judicial and Prosecutorial System for possible use in its work on a comprehensive reform of the court system.
Open violation of the law by Minister Żurek
Despite this, to date, the Ministry has not presented any draft that would remove the above-described flaws in the procedure for dismissing presidents and vice-presidents of common courts, either before or, unfortunately, after the Constitutional Tribunal’s ruling. What is more, the new Minister of Justice, Waldemar Żurek, went a step further. Not only did he, immediately after taking office, decide to use the procedure without amending the regulations, completely ignoring the ruling, instead of adapting it to the Constitutional Tribunal’s ruling, but when, as part of this procedure, the collegiums of a number of courts expressed an unambiguously negative opinion, the Minister, instead of submitting new dismissal motions to the National Council of the Judiciary – he clearly and openly announced that he intended to violate the applicable provisions of the Act and dismiss the presidents despite the negative opinion of the panels, without referring the matter to the National Council of the Judiciary.
The grounds on which the Minister’s decision is based are clearly extra-legal and purely personal. The official announcement explicitly stated that:
The negative opinions of the court collegiums, referred to by the dismissed presidents and vice-presidents, came from bodies formed on the basis of provisions restricting judicial self-government, with the majority of the members of these collegiums having been appointed by former Minister of Justice Zbigniew Ziobro.
In other words, the fact that the members of the panels were appointed to their positions during the term of office of a particular Minister of Justice is sufficient grounds for the current leadership of that ministry to ignore the opinions of those panels without any legal basis for doing so! In turn, as the reason for not referring the motion to the National Council of the Judiciary, the Ministry again refers to the so-called case law of the European courts, even though this – regardless of whether it was issued in violation of treaty norms – is certainly completely irrelevant in this case.
In other words, the Minister’s action is, unfortunately, once again grossly contrary to the principle of legality contained in Article 7 of the Constitution, referred to at the beginning. As described in detail above, the Minister may dismiss the president or vice-president of a court only if the conditions set out in Article 27 § 5 and § 5a of the Law on the System of Common Courts are met:
§ 5. A positive opinion of the collegium of the competent court authorises the Minister of Justice to dismiss its president or vice-president. Failure to issue an opinion within thirty days of the Minister of Justice presenting his intention to dismiss the president or vice-president of the court does not prevent the dismissal.
§ 5a. If the opinion of the collegium of the competent court on the dismissal of its president or vice-president is negative, the Minister of Justice may submit the intention to dismiss, together with a written justification, to the National Council of the Judiciary. A negative opinion of the National Council of the Judiciary shall be binding on the Minister of Justice if the resolution on the matter was adopted by a two-thirds majority. Failure by the National Council of the Judiciary to issue an opinion within thirty days of the Minister of Justice presenting his intention to dismiss the president or vice-president of the court shall not prevent the dismissal.
If the above conditions are not met (and in this case they clearly were not), the Ministry is acting without legal basis and is thus exceeding its powers, which is an offence under Article 231 of the Criminal Code. It should therefore come as no surprise that today (17 September), the president of the ‘Lawyers for Poland’ Association, Judge Łukasz Piebiak, filed a report with the public prosecutor’s office alleging that Minister Waldemar Żurek had committed this very offence.
The report concerns the actions of the Minister of Justice consisting of:
- The unlawful dismissal of court presidents and vice-presidents, in violation of the statutory and constitutional procedure for appointing and dismissing these positions.
- The violation of the independence of the courts through political interference in organisational structures, including the enforcement of unlawful personnel decisions.
- Obstructing access to justice and destabilising the work of the courts through personnel changes leading to organisational chaos.
In the opinion of the Association, the actions of the Minister of Justice, Waldemar Żurek, meet the criteria of an offence under Article 231 § 1 and 2 of the Criminal Code, i.e. exceeding his powers and acting to the detriment of public and private interests.
It should be emphasised that the alleged dismissal of the presidents, carried out with such a flagrant and openly admitted violation of the law, is simply invalid and cannot have any legal effect.
In turn, judges who decide to apply for positions that are still legally occupied expose themselves to criminal liability under Article 227 of the Criminal Code (misappropriation of office) and disciplinary liability.
Summary
It is highly symptomatic that, acting ostensibly to ‘restore the rule of law’, Minister Żurek decided not only to openly violate the fundamental principles on which true rule of law is based, foremost among them the principle of legality, but also to completely ignore the opinion of the judicial community, guided solely by personal considerations. Thus, the Minister’s action became par excellence what the Constitutional Tribunal warned against, pointing to the partial unconstitutionality of the current procedure for dismissing court presidents and vice-presidents –
– a one-man, arbitrary and extra-legal interference of the executive in the administration of justice.
It is difficult to point to a more glaring violation of the principle of judicial independence (guaranteed by Article 173 of the Constitution), or even more broadly – the very principle of the separation of powers, on which, according to Article 10 of the Constitution, the system of the Republic of Poland is based. This makes it all the more important to hope that the actions of both the former and current Ministers of Justice will be duly accounted for as soon as possible.
Image source: Adobe Stock.
