National Council of the Judiciary. Draft changes to the National Court Register. Position of the Ombudsman Marcin Wiącek

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Ombudsman Marcin Wiącek referred to the project of the Ministry of Justice amending the Act on the National Council of the Judiciary. He assessed that this is a “step in the right direction” from the point of view of implementing the standards of case law of, among others, European courts into Polish law. At the same time, he admitted that it did not solve the “key problem” of the status of approximately 2,300 judges and assessors appointed since 2018.

Draft amendment to the Act on the National Council of the Judiciary, prepared by Ministry of Justice, provides, among others, taking away the competences of the Sejm choice 15 judicial members of the National Council of the Judiciary and handing it back to the judicial community, as well as the organization of elections to the National Council of the Judiciary by the National Electoral Commission. The project was published on January 12 and went out for consultation.

Minister of Justice: the functioning of the National Council of the Judiciary should be thoroughly reformed

The Ombudsman writes about a “step in the right direction”, but a “key systemic problem” remains

The position on the project was provided by, among others, Ombudsman Marcin Wiącek. He writes that the government project is “a step in the right direction from the point of view of implementing into Polish law the standards of the case law of the Supreme Court, the Supreme Administrative Court, the European Court of Human Rights and the Court of Justice of the European Union.”

“Removing the power to elect 15 judicial members of the National Council of the Judiciary from the Sejm and handing it back to the judicial community is a good step towards implementing the judgments of the Supreme Court, the Supreme Administrative Court, the European Court of Human Rights and the Court of Justice of the EU. They agreed that the current composition of the Council is excessively dependent on from the legislative and executive authorities, which may have a negative impact on the independence of judges appointed on its recommendation,” said Marcin Wiącek, Commissioner for Human Rights.

At the same time, he pointed out that the project does not solve the “key systemic problem”, i.e. the status of approximately 2,300 judges and assessors appointed at the request of the National Council of the Judiciary in 2018-2023 and the hundreds of thousands of judgments issued by them, which may potentially be questioned due to the irregularity of the composition. “A situation in which citizens are unsure as to the legal force of judgments addressed to them is unacceptable in a state of law,” said the Ombudsman.

Comments by the Ombudsman

Wiącek postulates, among others: clarification of “which judges elect which judges to the Council”. It also proposes removing from the draft the article depriving judges delegated to the Ministry of Justice, the Ministry of Foreign Affairs or the Chancellery of the President of the Republic of Poland from participating in elections to the National Council of the Judiciary, and supplementing the draft with a provision clearly indicating the beginning of the term of office of judicial members of the National Council of the Judiciary.

In the opinion of the Ombudsman, the project should also include “a clear indication of the criteria that should be followed by the Council when selecting candidates for judges and a clear listing of the elements of justification for the resolution, including the requirement to indicate specific reasons for selecting a given candidate and the requirement to refer to the opinion of the Social Council.” “.

Positions of the Supreme Court and the National Electoral Commission

They also issued their positions on this matter NEC and Supreme Court.

In the opinion submitted to the Ministry, the Chairman of the National Electoral Commission, Sylwester Marciniak, noted that the National Electoral Commission should not be the body managing elections to the National Council of the Judiciary because “it does not order any elections under the currently applicable regulations” and “is only competent to conduct general elections and a national referendum.” Moreover, as it was emphasized, the National Electoral Commission “does not have any supervisory powers over court presidents, who are also supposed to perform tasks related to conducting them (elections – ed.), including appointing electoral commissions and ensuring the proper conduct of voting.”

However, the position of the Supreme Court emphasized that the solutions proposed in the draft National Council of the Judiciary raise constitutional concerns, primarily in relation to the proposed composition of the National Council of the Judiciary, “specifically, the assumed introduction of restrictions resulting in the exclusion of certain judges from the possibility of standing for election and holding the mandate of a member of the National Council of the Judiciary.”

“Additional doubts of a systemic nature also relate to the method of determining the properties and powers of the new entity, which is to be the Social Council operating at the National Council of the Judiciary. The presented comments complement the reservations regarding the planned expiration of the mandates of judges-members of the National Council of the Judiciary elected to perform this function by the Sejm on the basis of existing regulations. statutory” – says the position of the Supreme Court.

Project on changes to the National Court Register

Members of the National Council of the Judiciary will be elected by judges, a Social Council will be established to support the National Council of the Judiciary in the performance of its tasks, and the mandates of judge-members of the National Council of the Judiciary elected after 2017 will expire after the announcement of the results of the elections for new members of the Council – these are the main assumptions of the reform of the National Council of the Judiciary presented by the head of the Ministry of Justice. Adam Bodnar.

The draft amendment to the Act on the National Council of the Judiciary assumes that the judges themselves, with the support of the National Electoral Commission, will elect 15 judges – members of the National Council of the Judiciary in direct and secret elections. A Social Council is to be established as a body to support the National Council of the Judiciary in performing constitutional tasks, including issuing opinions on candidates for judicial and assessor positions.

The right to nominate candidates – apart from a specific group of judges – will also be available to the Supreme Bar Council, the National Council of Legal Advisors, the National Council of Prosecutors, bodies authorized to award academic degrees in the field of legal sciences, as well as a group of at least two thousand citizens. However, this right will not apply to persons appointed to judicial positions with the participation of the National Council of the Judiciary in the composition established by the Act of December 8, 2017. It introduced provisions that it is the Sejm that elects judicial members of the National Council of the Judiciary.

Only professionally active judges may be nominated as candidates for the National Council of the Judiciary; Judges will be excluded from the right to stand for election to the National Council of the Judiciary who are, or within three years before the date of announcing the date of elections to the National Council of the Judiciary, were delegated to the Ministry of Justice or to another office subject to the executive power or appointed with the participation of the National Council of the Judiciary in a composition established by the Act of 8 December 2017.

In December last year, the Sejm adopted it resolution on eliminating the effects of the constitutional crisis in the context of the political position and functions of the National Council of the Judiciary in a democratic state ruled by law. It was indicated that three resolutions of the Sejm from 2018, 2021 and 2022 regarding the election of judges-members of the National Council of the Judiciary were adopted in gross violation of the Constitution of the Republic of Poland. “The result of their decision was to shape the composition of the National Council of the Judiciary in a manner inconsistent with the Constitution of the Republic of Poland, the Treaty on European Union and the Convention on Human Rights and Fundamental Freedoms, and, as a consequence, the loss of the ability of the National Council of the Judiciary to implement its constitutional functions and tasks, in particular the ability to stand “guarding the independence of courts and judges,” it said.

Then, Minister of Justice Adam Bodnar announced that a draft bill would be presented, which would propose a procedure for electing members of the National Council of the Judiciary in accordance with three projects prepared by the Iustitia and Themis associations and two years ago by the Senate.

Main photo source: Leszek Szymański/PAP



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