This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses
The current government and the parliamentary majority supporting it are attempting to undermine the legitimacy of the National Council of the Judiciary and, consequently, the validity of judicial appoint-ments made with its participation since 2018;
The first action taken to this end was a December 20, 2023 Sejm resolution that questioned the constitu-tionality of the then composition of the NCJ and called on its members to “cease their activities.” However, the resolution has no legal force.
Another action was the issuance of a decree by the Minister of Justice on February 6, 2024, to exclude judges appointed since 2018 from adjudicating certain cases. The decree was declared unconstitutional in a May 16 ruling by the Constitutional Tribunal.
On July 12, 2024, the Sejm passed a law that, among other things, provided for the premature shortening of the term of the current NCJ and excluded judges who had been appointed since 2018 from running for the newly formed NCJ. President Andrzej Duda referred the law to the Constitutional Tribunal.
On September 6, 2024, the Minister of Justice presented a proposal for solutions that would, among other things, include an obligation for judges appointed since 2018 to file an “active regret” for those who wish to remain in their positions. The proposals have been criticized by, among others, the Iustitia as-sociation of judges and the Venice Commission.
Constitutional regulation on the functioning of the National Council of the Judiciary
According to Article 186(1) of the Polish Constitution, the National Council of the Judiciary (hereinafter: NCJ) upholds the independence of courts and the independence of judges. Its personal composition, however, is regulated by Article 187, according to which the NCJ is composed of: the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court, a person appointed by the President of the Republic, 15 members elected from among judges of the Supreme Court, common courts, administrative courts and military courts, four members elected by the Sejm from among deputies and two members elected by the Senate from among senators. The remainder of the Con-stitution’s provisions on the NCJ are rather laconic – namely, it stipulates that the NCJ: may petition the Constitutional Tribunal on the constitutionality of normative acts insofar as they relate to the independence of courts and the independ-ence of judges (Article 186 para. 2); elects a president and two vice-pr from among its members (Art. 187 para. 2); the term of office of elected NCJ members is four years (Art. 187 para. 3); and, most importantly, that the NCJ’s structure, scope of activities, mode of work and method of electing its members are determined by law (Art. 187 para. 4).
Significantly, the Constitution in no way specifies who is to elect these 15 members chosen from among the judges. This was clearly emphasized by the Constitutional Tribunal in its June 20, 2017 judgment , in which, incidentally, the Tribunal declared unconstitutional the then-current legislation, which provided for a rather complex procedure for the election of representatives of judges in curiae composed of representatives of different types of courts. In that judgment, the Tribunal noted that: “The authors of the Constitution, however, did not indicate who is to elect these judges[.] These issues have been delegated to be regulation by the law. Nothing prevents judges from being elected to the NCJ by judges. However, one cannot agree with the assertion that the active electoral rights in this area must necessarily and exclusively lie with the judicial branch…”
This position was upheld in a March 25, 2019 judgment , in which the Tribunal declared the constitutional-ity of the new procedure to elect judges’ representatives to the NCJ by the Sejm, as introduced under the Act of December 8, 2017 amending the Act on the National Council of the Judiciary and certain other acts (OJ 2018, item 3). In that judgment, the CC noted that: “The statement that Article 187(1)(2) “explicitly states that members of the NCJ may be judges, elected by judges” finds no basis in the text of the cited provision […]. Since the Constitution, in Article 187 (1) (1) and (3) of the Constitution, indicates exactly to whom the active right to elect NCJ members is granted, the fact that it does not do so with regard to rep-resentatives of courts allows us to conclude that it did not regulate this issue consciously and relegated it to the legislature. […] In fact, the fact of being a representation of the legal community is due not to the manner in which the NCJ members are elected, but to the fact that a large majority of them are judges , which is covered by the constitutional guarantee.”
On the other hand, with regard to the suggestion in the initiating motion that “the requirement that judges be selected exclusively by judicial bodies can be derived from the other enumerated [non-Article 187] con-stitutional provisions,” the Tribunal found that the amended legal provisions on the NCJ are compatible with Articles 2, 10(1) and 173 of the Constitution – a thought, however, that was not developed in detail in the justification.
Sejm resolution of December 20, 2023. – Undermining the status of the NCJ
On December 20, 2023, by a vote of 239 deputies The Sejm adopted a resolution to address the conse-quences of the constitutional crisis in the context of the constitutional position and functions of the Nation-al Council of the Judiciary in a democratic state under the rule of law. In this resolution, the Sejm took the position that “The election of representatives of the judicial community to the National Council of the Judi-ciary should […] have an autonomous nature and be carried out by the judicial community, without the pos-sibility of active participation of legislative and executive authorities.” In view of the above, the Sejm con-cluded that the resolutions concerning the election of NCJ members, adopted by the Sejm of the previous term, “were adopted in flagrant violation of the Constitution of the Republic of Poland,” and therefore called on the NCJ members to “immediately cease their activities.”
Such a resolution, adopted without an explicit legal basis, is of course not binding in any way. However, the NCJ presidium vigorously protested against its adoption, stating, in its own resolution of December 20, 2023 , that the Sejm’s resolution “undermines confidence in constitutional bodies, harms the legal order, and, contrary to its title, initiates a conflict with the hallmarks of a constitutional crisis.” In particular, it has been pointed out that the appeal to the NCJ’s member judges to cease activities constitutes a de facto encouragement to act in violation of the law, that is, not to perform their duties. Moreover, the Sejm’s ac-tion can be considered an attempt to pressure the body that upholds judicial independence, which would violate the principle of separation of powers and indirectly undermine judicial independence itself. Finally, the NCJ rightly pointed out that the allegation that the current composition of the Council is unconstitu-tional is not justified in light of the aforementioned judgments of the Constitutional Tribunal, which is the only body authorized to examine the compliance of legal acts with the Constitution.
Thus, if the current parliamentary majority wishes to change the procedure for appointing the NCJ mem-bers drawn from among judges, it should simply amend the law on the NCJ, rather than adopt this type of resolution, which has no legal effect.
Decree of the Minister of Justice of February 6, 2024, amending the decree on rules of procedure of common courts – discrimination against
judges appointed since 2018.
The Minister of Justice issued a decree , which provided for the addition to the decree of the Minister of Justice of June 18, 2019 – Rules of Procedure of common courts a new provision that would exclude from consideration of certain cases judges who took office on the basis of an application submitted by the reformed National Council of the Judiciary, whose members who are representatives of courts were elect-ed by the Sejm. Specifically, these judges were to be excluded from ruling on an application to exclude a judge based on circumstances surrounding the judge’s appointment. In practice, the idea was that judges appointed from 2018 onward would not be able to hear requests to exclude other judges appointed during the same period.
Already on February 14, the presidium of the NCJ passed a resolution on referring a motion to the Con-stitutional Tribunal to examine the decree’s compliance with the Constitution. The Constitutional Tribunal already ruled on the matter on May 16 , stating that all three paragraphs of the decree are unconstitution-al. First and foremost, the Tribunal pointed out that provisions of the decree clearly go beyond the statuto-ry authorization, and even attempt to regulate issues that, according to Article 176(2) of the Constitution, can only be regulated at the level of a law. The Tribunal also argued that the arbitrary exclusion of certain judges in certain cases constitutes a violation of judicial independence and a violation of the right to a court as set forth in Article 45(1) of the Constitution. The Tribunal even suggested that the content of the adopted provision is a sham, and is indeed intended to allow judges, appointed since 2018, to be excluded from ruling on all cases.
In addition, the Tribunal stated that the acts of appointment of judges by the President under his constitu-tional prerogative cannot be challenged in any way, either by law or, even more so, by sub-statutory acts.
Law of July 12, 2024, amending the Law on the National Council of the Judiciary – unconstitutionally shortening the term of the NCJ and prohibiting judges appointed since 2018 from running for the new NCJ
On April 12, 2024, the Sejm, by a vote of 240 deputies passed a law amending the law on the National Council of the Judiciary . The law aims to restore the mode of election of the 15 judge members of the NCJ by judges, except that it would be done by universal suffrage and not by the pre-2018 curial system, which, as indicated above, the Constitutional Tribunal declared unconstitutional. Importantly, however, the law provides for a shortening of the term (referred to in its Article 3 as “cessation of activity”) of the cur-rent NCJ, as well as (Article 2(2)) a prohibition on possible candidacy to the “new” NCJ of judges appointed at the request of the NCJ operating under current rules (with the only exception of judges who returned to the office of judge and the position held before 2018). Significantly, deletion of the latter provision, as argu-ably unconstitutional and contrary to the “Urgent Joint Opinion of the Venice Commission and the General Directorate of Human Rights and Rule of Law of the Council of Europe on the Draft Law Amending the the Law on the National Council of the Judiciary” , which stated that “the blanket exclusion of between 2,000 and 3,000 judges out of approximately 10,000 from being candidates lacks individual assessment, and thus raises questions of proportionality” , was proposed by the Senate as one of the amendments adopted to the law . However, the Sejm rejected the Senate’s amendment by a vote of 237 MPs .
On August 1, 2024, the President of the Republic of Poland referred the law in question to the Constitu-tional Tribunal under the so-called preventive control procedure, accusing it of: unauthorized restriction of the passive right of election of judges to the NCJ, questioning the prerogative of the President of the Republic of Poland to appoint a person to serve as a judge, violation of the principles of judicial independ-ence, balance of powers, adherence to the law and, above all, the permanence of the term of office of the NCJ as stipulated in the Constitution .
Following President Andrzej Duda’s decision, in a resolution dated October 11, 2024 the NCJ presidium decided to proceed before the Constitutional Tribunal, stating that the law’s provisions “lead to a violation of the principles of: democratic legitimacy of power, sovereignty of the nation, tri-partition of powers, bal-ance of powers, judicial independence and adherence to the law.” In addition to supporting the charges raised by President Duda, the NCJ also criticized the very main idea of returning to a system of election of judges’ representatives by judges, describing it as a change from “the current democratic model of electing the judicial portion of the National Council of the Judiciary to a co-optation-corporate model that does not meet the standards of Article 2 and Article 4 of the Polish Constitution.” According to the NCJ, it follows from the principles of a democratic state under the rule of law and the principle of the sovereignty of the people that the judges sitting on the NCJ must be elected either directly by the people or at least indirectly, as long as an “unbroken chain of democratic legitimacy” is maintained.
As long as the Constitutional Tribunal has not ruled on the above issue, the President cannot sign the law in question, thus it cannot be published and enter into force. It seems that, at least with regard to Articles 2(2) and 3 of the law, the Tribunal should declare it unconstitutional.
Minister Bodnar’s communication of September 6, 2024 – announcement of new solutions for changes in the judiciary
On September 6, 2024, Minister of Justice Adam Bodnar announced proposed statutory changes regarding the status of judges .The presented changes are to divide judges appointed after 2018 into three groups. The first of these, i.e. those who were first appointed to a judicial post after serving as an assessor, are to be given the status of “judges appointed in accordance with the Constitution” – their status will not be questioned in any way.
The second was defined as “people who have a so-called joint undertaking” in common, i.e. those who ac-tively participated in the reform of the justice system. These individuals will absolutely and irrevocably be removed from their positions and moved to those previously held. From the minister’s somewhat unclear announcements, it seems that such individuals will furthermore be barred from applying for promotion and will also be subject to disciplinary proceedings conducted by a new body specially established for this pur-pose – the “Disciplinary Council.”
Finally, the third group is made up of individuals who, although promoted in the judicial structure, “cannot be charged with participation in a joint undertaking.” It is envisaged to introduce an “institution of so-called active regret” for these people, namely that if they issue an appropriate statement declaring that “it was their mistake in life.” While their promotion will also be revoked, they will not, however, be excluded from applying for it again, nor will they be subject to disciplinary proceedings.
The above proposals have met vigorous opposition from many quarters. First, in a resolution dated Sep-tember 12, 2024. , the NCJ presidium took the position that the proposals directly violate constitutional guarantees of judicial independence and non-removability. Particular criticism was directed at the institu-tion of “active regret,” as “an obvious reference in its historical clarity to self-criticisms made by people who fell foul of authorities in the systemic realities of the Soviet Union or the Stalinist beginning of the People’s Republic of Poland.” The NCJ also noted that “Verification [of judges – of the type proposed by the Minister] […] was not carried out either [after independence was recovered in 1918] with respect to judges of the occupying powers, nor in 1989 with respect to judges appointed by communist authorities, and not even applied by Nazi Germany after the occupation of our country in 1939 with respect to judges of the Second Republic, and only carried out by the communists during the seizure of power in the second half of the 1940s.” Finally, the NCJ correctly argues that it is inadmissible to draw negative legal consequences against persons who merely used the procedure provided for by law, the constitutionality of which, moreo-ver, has not been challenged by the body authorized to do so (i.e., the Constitutional Tribunal). In view of the above, the NCJ urged the Sejm of the Republic of Poland to express strong opposition to the Minister’s proposal.
In a similar vein is the position taken by representatives of the legal community , which emphasizes that “The demand from judges by the Minister of Justice for an act of contrition in the form of ‘active regret’ – an institution taken from the norms of criminal law and intended for compliant criminals – should be read as obvious blackmail, leading to a violation of judicial independence and retention in the profession of only those who accept this violation of the Constitution and dependence on the executive power.” At the same time, it was warned that if the Justice Minister actually wishes to execute the above announcements, this could amount to a “constitutional tort, which is the basis for future liability before the State Tribunal […].”
Of particular note, opponents of the NCJ’s model of functioning in force since 2018, grouped in the judges’ association “Iustitia,” also spoke out against the institution of “active regret.” One of their leading repre-sentatives, Warsaw Regional Tribunal Judge Igor Tuleya, stated that he himself would never have made such a humiliating statement .
First and foremost, however, it should be pointed out that also the Venice Commission, in its opinion of October 14, 2024 , took a critical stance on the proposals put forward by the Justice Minister. The Com-mission stressed that the evaluation of the work of judges must always be individual, and group removal is not possible. It also pointed out that it is not possible under the Polish Constitution to remove a judge by law alone and without a court ruling. Judgments of the European Court of Human Rights or the Court of Justice of the European Union cannot be considered such rulings, as these courts do not have such powers. Nor can it be the Supreme Court’s December 5, 2019 ruling , in which it did not declare specific and indi-vidual actions taken by the NCJ invalid.
The Venice Commission further took the position that the evaluation of judges cannot be conducted by a body dependent on the government. If, on the other hand, such an authority is to be non-judicial, any nega-tive assessment must be subject to appeal to a court. The Commission also stated that the above cannot be replaced by merely retaining the right to participate again in competitions for a judicial position after a pos-sible negative evaluation resulting in deprivation of the current position.
The Commission also suggested that, in its view, there is no basis for concluding that judges who have been promoted since 2018 have thereby committed disciplinary torts entitling them to a reduction in their emoluments.
However, with regard to decisions made in individual cases by judges appointed after 2018, the Commis-sion took the position that here, too, an individual assessment of each case is necessary. It has been pro-posed to create a special procedure that would allow petitions for the rescission of rulings, but only within a certain time limit, after which the procedure would be revoked. The absence of such a deadline would mean the risk of legal uncertainty. Rulings can be overturned only if it has been shown that the manner in which the judge was nominated affected the outcome of proceedings.
Finally, the Venice Commission indicated that some of the proposals presented to it (for example, the gen-eral idea of returning judges to previously held positions) were overly general for it to take a comprehen-sive position on them and instead expressed its willingness to express an opinion when a full draft of the amendment to the regulations is presented.
Perhaps this above-mentioned opinion, which was strongly negative towards the proposals presented by the Justice Minister in September, although non-binding, is the reason why until now a specific bill in the subject area has not been published.
Supreme Court: The test of independence applies to all judges and can only take place under the law
There has also been a recent decision of the Supreme Court relevant to the status of judges appointed to office from 2018. The Supreme Court considered complaints against an earlier decision of its other panel on July 18, 2024, on the application of pre-trial detention, issued on the occasion of a cassation ruling , in which the Supreme Court remanded the case back to the first-instance court for retrial. The only basis for the July ruling was the Supreme Court’s finding that the sentence issued by the first instance court must be annulled by law on grounds that the court was improperly staffed within the meaning of Article 439.1.2 of the Criminal Procedure Code Act of June 6, 1997 . This improper staffing, on the other hand, allegedly consisted of a judge who was appointed to his position on the basis of a proposal from the National Council of the Judiciary functioning under the rules in effect since 2018, so that “the composition of the Regional Tribunal that ruled on the case as a court of first instance did not meet […] the criteria of independence and impartiality belonging to a ’court established by law’ in the constitutional and convention sense.”
In a decision in August, the Supreme Court strongly disagreed with the permissibility of such an outcome. First of all, it stressed that in the current state of the law, the so-called “test of a judge’s independence and impartiality” can only take place on the basis of Article 42a § 3. et seq. of the Law on the System of Com-mon Courts. These regulations (specifically, §6) grant the right to make such a request, in the case of crimi-nal proceedings, only to a party and only (§5) within 7 days of notification of the panel hearing the case. The Supreme Court further stated that this power can be exercised by a party against any judges, not only those appointed since 2018. It was pointed out that doubts about independence and impartiality can be raised especially against judges who were appointed until 1989 by the Council of State of the People’s Republic. However, also after this period, and before 2018, various constitutional concerns were raised against the procedure for appointing judges already with the participation of the NCJ. The above led the Court to conclude that “legislation has recognized that no judge of the Supreme Court, a general court, military court, Supreme Administrative Court or administrative court, regardless of the date of appoint-ment, meets the statutory and convention guarantees of independence and impartiality, and this resulted in – according to an amendment introduced by the law of June 9, 2022 – granting the parties and participants in any particular proceeding the right to file motions to examine the fulfilment of the requirements of inde-pendence and impartiality by a particular judge appointed to hear the case.” In turn, the entire argument about the Supreme Court’s July ruling was summed up by the following statement, bolded in the original text of the August decision: “In conclusion, it should be stated that the annulment of judgments of first and second instance courts by the Supreme Court reviewing the cassation, carried out […] in a procedure of an inquisitorial nature that is unknown to the law, constitutes a clear and flagrant violation of Article 42a § 3 – § 14 of the Law on the System of Common Courts and Article 7 in connection with Art. 87 of the Constitu-tion of the Republic of Poland, resulting at the same time in deprivation of the tested judge’s right to a court of competent factual and local jurisdiction established by law and in deprivation of the right to an effective remedy, and moreover in deprivation of the defendant’s right to have the case heard within a reasonable time – which constitutes a clear and flagrant violation of Articles 45(1) and 78 of the Constitu-tion of the Republic of Poland and Articles 6(1) and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”
Summary
Despite numerous rulings by the Constitutional Tribunal and the Supreme Court stating that actions taken by the new ruling coalition, especially by Justice Minister Adam Bodnar, to undermine the status of the NCJ operating under rules in effect since 2018 are legally flawed, the government is not giving up its pursuit of this goal. In doing so, it disregards obvious social consequences, such as undermining the confidence of citizens in the judiciary, judges, or the Polish state and law in general. Moreover, these activities can be viewed as a waste of public funds. The chaos created in this way is, unfortunately, also exacerbated by the attitude of a part of the judicial community, which openly supports the course set by the government, thereby undermining the coherence of the Polish legal system, especially when it comes to the division of the jurisdiction and competencies of the various bodies delineated within it.
All of the solutions adopted by the government that were legislative in nature, have either already been challenged by the Constitutional Tribunal as obviously contradictory to the Constitution, or, it is reasonable to assume, soon will be. One must agree with the position of the Constitutional Tribunal that the model for the election of judges to the NCJ, which has been in operation since 2018, does not contradict the Consti-tution, and in fact better realizes the principle of balance of powers (through so-called “checks and balanc-es”) and reduces the risk of an oligarchization of judicial power.
It should also be noted that attempts to undermine the status of individual judges lead to protracted pro-ceedings and legal uncertainty, which mostly harms ordinary people – the participants in proceedings in the first place. It is to be hoped that a consistent application of the current legislation allowing the so-called “independence tests” to be carried out against all judges (and not just a certain group of them selected for political reasons) on clear and unambiguous principles will contribute to mitigating the above negative phe-nomena.
In view of the above, recent actions by the Minister of Justice, including such curiosities as a proposal to require judges to file an “active regret,” can be considered another manifestation of the current govern-ment’s interference in judicial independence.
Jędrzej Jabłoński
