Contrary to the Minister of Justice's announcement that neo-assessors appointed as neo-judges with the participation of the neo-KRS should not be afraid of changes in their status, the first ruling has appeared to question the composition with their participation. The territory Court in Słupsk, investigating complaints about the extension of detention, repealed the order of the court of First instance. The reason for this was the appointment of a "judge" who issued them for this position with the participation of the neoKRS, which resulted in a violation of the right to court, both in terms of impartiality and independence.
Neo-Judge Problems
The neo-Judge case is very emotional. The Codification Commission of the Judiciary and Public Prosecutor's Office is working on a solution to the problem, and the task is due to be ready in autumn. As the president of the committee announces, justice Prof. Krystian Markiewicz, the task will regulate the issue of neoKRS resolutions concerning judges' nominations.
"It doesn't substance if the justice who promoted is good, bad, more or little "deserved". It is simply: it is called defectively due to the authority that participated in this procedure. The bill should reverse that. That's the most crucial thing. These people must be given the chance to participate in fresh competitions and the chance to appeal a possible negative decision of the fresh KRS to an independent court," says Prof. Markiewicz.
However, any nominations can be maintained due to systemic circumstances, especially in the case of asessors after the judges' examinations, where the function of the KRS was marginal.
Asessor calling process
In order to become a court asessor, you gotta complete the application at the National School of Judiciary and Public Prosecutor's Office and pass the judge's exam. The KRS may object to the appointment of an Assessorian candidate, but practically does not interfere with the appointment. The president then presents the appointment acts, and the asessors service as justice for 4 years. Key is the visit of the asessor by the visiting justice and the evaluation of the KRS, which decides to transform the Asessorian position into a judge.
Judgment of the Słupsk Court
The court in Słupsk considered the complaint to extend the detention of a fishy for causing a traffic accident and calling for hatred. The defender pointed to an inappropriate court cast due to the participation of a justice appointed by the neoKRS. The Court of First Instance argued that the participation of a justice appointed by the neoKRS infringes the right to a court established by the Act and the principles of impartiality and independence.
"The participation in the procedure for appointing a justice of the National Court registry established under the Act of 8 December 2017 is adequate to violate this standard; without the request to examine and find any possible impact in the individual case", added the explanatory memorandum.
Reactions and Controversies
The ruling sparked controversy among the asessors. Maciej Swider, court assessor and press spokesperson of the Association of Graduates and Applicators of the National School of Judiciary and Public Prosecutor's Office Votum, points out that the ruling is not a test of independence, but an automatic exclusion of judges appointed by the neo-KRS.
"The Votum Society consistently reiterates that the problem must be resolved as shortly as possible. The statutory regulation on the KRS must be adapted to the requirements of the European jurisprudence which binds us,” says Świder.
Votum Association proposes verification of nominations in an individual procedure, completed by a disciplinary court ruling, alternatively of automatically withdrawing promotions.
Automaticism is not an option – "judge" is simply a judge
The Świder stresses that those appointed with the participation of the neoKRS are judges and their position cannot be contested without a disciplinary court ruling.
‘No automation can so be involved. However, these questionable cases request to be clarified where political influences have been utilized to become a judge," he concludes.
This message cannot be accepted due to the fact that the case law of the Polish and global courts clearly contradicts it. Moreover, in view of the broad case-law of the global courts in this regard, it must be concluded that it is contrary to the principles of the regulation of law which consequence from the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter of Fundamental Rights and on the basis of Article 267 TFEU and the rule of primacy of Union law aimed at complying with the case-law of global tribunals, which results in a deficiency of power to regulation on neo-judges.
The court omitted the resolution of the SN
Votum Association points out that the judgement of the court in Słupsk contradicts the resolution of the combined ultimate Court Chambers of 23 January 2020, which requires examination of whether the appointment of a neo-KRS justice could have had an impact on the result of the case.
‘The content of the resolution and its justification clearly show an work to examine, in a circumstantial case, whether the appointment of a justice with the participation of the National Court registry after 8 December 2017 could have had an impact on the result of the case,’ was noted.
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.
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.
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The court in Słupsk issued a precedent for questioning the neo-assessor nomination for the neo-judge
