Warsaw, the 24th of August 2018
Polish President will violate the law if he appoints new, politically affiliated Supreme Court justices.
Judges associated in IUSTITIA, the biggest Polish judges association, hereby deliver a legal opinion by esteemed administrative law professor Jan Zimmermann of Jagiellonian University who clearly states that the President cannot appoint the justices within next two weeks since he is obliged to give disqualified candidates an opportunity to appeal. In case he appoints them regardless he can put their future decisions in jeopardy of being null and void.
At this point it should be emphasized that current National Council of the Judiciary of Poland which have been illegally appointed by the politicians is currently carrying out the recruitment of the Supreme Court justices and as a process goes several candidates for the Supreme Court has been already elected within a couple of days up to now. ‘We’re sure, the President will appoint the candidates picked by the NCJ quickly, before the decision by Court of Justice of the European Union is made’, would say prof. Krystian Markiewicz, the President of IUSTITIA ‘Accordingly, the President will break the law by not allowing disqualified candidates to appeal against these decisions. Future consequences can be devastating. Apart from personal responsibility of these justices, Polish ordinary citizens may suffer the consequences since decisions made by illegally appointed justices may always be challenged.’.
‘We will be soon presented with a fait accompli’, he would add, ‘Since we assume the politicians are aware of the EU Court of Justice’s decision which will be clearly negative and might prevent appointment of political affiliates to the Supreme Court. The simple reasoning behind this hastiness is to pack the Supreme Court with political hacks before Court of Justice of the European Union makes its decision and as a consequence to be in the position of verbally appreciating this EU Court’s decision but declaring that it is unenforceable since appointments have already been made.’.
IUSTITIA, Amnesty International, Forum for Cooperation of Judges, Association of professor Zbigniew Hołda, Helsinki Foundation for Human Rights, Forum for Civic Development, The Initiative ‘Free Courts’, The Osiatyński Archive, Association of Legal Intervention, Judge’s Association Themis, The Youngs 2017, Association of Prosecutors Lex Super Omnia, Open Rzeczpospolita and Workshop for Social Innovation ‘Stocznia’ urged the President on abstaining from appointing new justices.
The legal opinion by administrative law professor Jan Zimmermann of Jagiellonian University, who was the supervisor of the President’s doctoral dissertation can be found hereunder.
On provisions 43(1) and 43(2) in conjunction with provisions 37(1) and 44(1a) of the Act of 12 May 2011 on the National Council of the Judiciary (consolidated text Journal of Laws of 2018, item 389, as amended) - quoted further on as the Act.
1. Provision 43(1) of the Act introduces the principle according to which every resolution of the National Council of the Judiciary becomes final if it is not subjected to appeal. It is an obvious and accurate understanding of the concept of formal validity, which also translates into the issue of the enforceability of a resolution. Aforementioned provision is related to the entire resolution, regardless of the fact that the resolution on presenting the candidate for the Supreme Court justice to the President encompasses many individual decisions.
2. Nevertheless provision 43(2) of the Act introduces partial validity of the resolution which arises “unless the resolutions were appealed by all participants of the proceedings” (JZ). It concerns the part of the resolution containing unappealed decisions on refraining from presenting the candidates to the President. Apart from the far-reaching doubts that arise from this regulation, the most important issue concerning its application is the question of the certain time when this partial validity occurs. The aforementioned provision stipulates that this is the time when it can be determined with certainty that "the resolutions (yet - JZ's comment) have not been appealed by all participants". Taking into account provision 44(1)(a) of the Act, whereby the deadline for lodging an appeal is "fortnight", it should be stated that this term is tantamount to the expiry of the last day of the second week which has passed since the date of delivery of the resolution to the last participant. Only then should it be determined without any error that no one has appealed against the resolution, because all participants (including the last of them) might do so within two weeks. It is the only term when the "partial validity" stipulated in the Act may be deemed right and when this part of resolution is enforceable as to its positive and negative effects. Until then, this part of a resolution is not legally binding and therefore the entire resolution is not legally binding as well.
3. In the proceedings before the National Court Register, the provisions of the Code of Administrative Procedure do not apply, hence also the provisions of this Code on the right to waive the appeal (provision 127(a). Besides, it is worth noting that from the standpoint the theory of law any waiver of a legal measure is impossible. It is a subjective right that cannot be renounced, it can only be not exercised.