Changes to National Judiciary Council in a Nutshell

  1. National Judiciary Council (NJC) has been established by the act of December 20t, 1989 in the result of the project prepared by Solidarity (anticommunist opposition) lawyers. Based on the best practices of free European countries, the objective of NJC was to protect the independence of courts and judges – a feature of the judicial system unknown to the communist regime.
    • -NJC was entrusted with nominations of judges, participation in the nominations of courts presidents and strengthening/protecting the independence of judiciary from other powers
    • -It has been agreed that NJC will be dominated by judges elected by judges. This rule was maintained by subsequent legislation.
  1. New Constitution of 1997 explicitly lists NJC as the constitutional body, which – according to art. 187 ust. 1 consists of 25 members elected for 4-years term of office:
    • -The First President of the Supreme Court, Ministry of Justice, President of Supreme Administration Court and representative of the President of Poland (all ex-officio)
    • -15 members-judges, elected from amongst judges of the Supreme Court, common courts, administrative courts and military courts,
    • -4 members of the Parliament (lower chamber) elected by the lower chamber and 2 members of the higher chamber of the Parliament, elected by the higher chamber.
  2. Up till December 2017, all the related legislation, detailing NJC procedures, maintained the modalities of the election of judges as stipulated by the constitution, according to recommendation 2010/12 of the Committee of Ministers of Council of Europe CM/Rec (2010)12, OSCE Kiev Recommendation, Opinion no. 10 of the CCEJ and European Charter on Status of Judges (see: https://twojsad.pl/wp-content/uploads/2018/03/opinia_KW_CDL-AD2017031-en.pdf).
  3. On December 8th 2017, the Parliament voted a new law on NJC. The most important changes include:
    • Unconstitutional shortening of the term of office of 15 judges-members of NJC
    • Unconstitutional election of 15 new judges-members of NJC by political parties.
  4. The new law, besides abolishing the election of judges-members of NJC by judges (which is a representative process), significantly reduces the formal requirements for to-be candidates to NJC. Currently the NJC candidate must demonstrate a support of 25 judges (out of over 10.000 in service, which equals to the support of 0.25% of the judges). Moreover, a candidate to NJC must get support of a political party in the parliament.
  5. The new law allows for supporting multiple candidates by single judge. They also allow non-adjudicating judges (employees of the Ministry of Justice – so called “judges seconded to the Ministry of Justice) to candidate and support candidates to NJC. Thus, 15 judges-candidates may support each other, and find another 10 judges supporting them, to get the right to apply for NJC post. The reality proved that such scenario has actually happened. Some NJC candidates supported each other (or proposed each other to NJC) and most of the candidates or their procedural representatives are current or past employees of Ministry of Justice or their relatives and newly appointed (by the Ministry of Justice) presidents of courts and/or their relatives. It is important to note, that a judge seconded to a Ministry of Justice and judge-president of the court, receive generous financial benefits in addition to basic salary.
  6. Despite the subsequent calls of non-governmental organisations, the lists of judges supporting the NJC candidates are kept secret. Their contents are only known to the Ministry of Justice and the Speaker of the Parliament – members of the ruling coalition, which by the way – proposed those candidates to the NJC.
  7. The judiciary effectively boycotted the unconstitutional changes – from amongst 10.000 judges, only 18 candidates were proposed to 15 posts in NJC. The associations of judges and numerous gatherings of the courts (bodies of judicial self-governance), repeatedly called judges to refrain from candidacy in this unconstitutional process.
  8. Finally, three opposition parties refused to propose their candidates to NJC, according to such unconstitutional procedure. In this situation, a list of candidates including 9 judges proposed by the ruling party and 6 judges proposed by their semi-ally, party “Kukiz 15”.
  9. On March 6th, 2018, the parliament, with the votes of the ruling party and without participation of the opposition, confirmed the selection of 15 candidates to „the new NJC”.

 

Interesting facts:

  • -Parliament member from Kukiz 15 in an interview with Polsat News TV said that „there was a meeting of Kukiz 15 with NJC candidates, as the condition for giving our political support to a candidates, was that the candidate must support our demands” (further refined that the demand was “to introduce “judges of peace””). It is worthwhile to note, that NJC has no rights to introduce such legislative changes.
  • -„New NJC” does not meet constitutional criteria, as there is no representative of military court and supreme court, explicitly listed by the constitution.
  • -New „members of NJC” includes judges with disciplinary sentences.