When the final decision has been given by the Supreme Administrative Court of Poland on the 28th of June, 2019 lists of supporters of the neo-National Council of Judiciary of Poland (neo-NCJ) should have been disclosed immediately by the Polish Speaker of the Parliament Office. Since the Supreme Administrative Court of Poland has pointed out that the access to public information is guaranteed in article 61 of Polish Constitution and its restriction can only take place “due to the protection of rights specified in legal acts of persons and business entities, protection of public order and safety or an important economic interest of a state.”
Even though none of these circumstances has been met, governing party is still abusing state institutions including the Polish Speaker of the Parliament (Sejm) Office, Polish Personal Data Protection Office and Polish Constitutional Court, which have been formerly captured by them, in order to prevent Polish citizens from learning about the content of the lists in question. What are their actions in particular?
Firstly, the Polish Speaker of the Parliament Office postponed disclosing the lists in question due to some technical obstacles which they couldn’t successfully clarify to the public.
Secondly, the President of Polish Personal Data Protection Office (former Law & Justice councillor) after having initiated two proceedings concerning processing personal data of the judges supporters of neo-NCJ issued interim order obliging the Parliament’s Office to refrain from disclosing the content of the lists in question. The Director of the Polish Speaker of the Parliament Office decided to obey this interim order simultaneously defying above mentioned final decision of the Supreme Administrative Court of Poland. The interesting thing is that these proceedings were initiated at the motion of judge Maciej Nawacki, member of the neo-NCJ and avid supporter, especially in social media, of so called reform of Polish judiciary imposed by ruling Law & Justice party.
Thirdly, a group of deputes from ruling Law & Justice party demanded the Polish Constitutional Court to check if the article 11a of the Statute on National Council of Judiciary of Poland (which has been adopted by Law & Justice party in 2017) is compatible with Polish Constitution. Article 11a of above mentioned Statute regulates the procedure of the nomination members of Polish NCJ and demands that each candidate is required to have support of at least 25 judges or two 2,000 Polish citizens. At the same time, the deputies requested the enforcement of judgement regarding the disclosure of the lists in question to be postponed by the Constitutional Court.
Subsequently, the above mentioned decision of the Director of the Polish Speaker of the Parliament Office is obviously baseless and infringes the law by disregarding court’s final decision by the state’s institutions. It is the first instance of so unprecedented disregard of the court final decision by constitutional bodies. Additionally, this situation exemplify the way the ruling Law & Justice party attempts to prevent unconstitutionally the disclosure to the public a piece of information which can be very harmful to them.
Meanwhile, the Association of Polish Judges IUSTITIA appealed to judges who have supported members of neo-NCJ to bring their names to light in person (read here: https://www.iustitia.pl/81-uchwaly/3218-uchwala-zarzadu-ssp-iustitia-w-sprawie-apelu-do-sedziow-o-ujawnienie-nazwisk-sedziow-popierajacych-kandydatury-sedziow-do-nowej-krajowej-rady-sadownictwa). Following this appeal of IUSTITIA, judges from all over Poland has been sending their statements in which they had supported individual neo-NCJ members. They emphasise in the statements that they do so to respect the final decision of the Supreme Administrative Court and generally admit that taking part in the unconstitutional procedure was a mistake. Additionally, neo-NCJ member, above mentioned judge Maciej Nawacki has admitted straightforwardly that he supported his own nomination on the list. Moreover, four judges have retracted their support for him the very day his list of supporters has been delivered to the Sejm’s Office all the same it was ignored by the Polish Speaker of the Parliament.
To sum up; there is therefore a certain concern that at least one member of the neo-NCJ has not been nominated lawfully. This may affect the validity of the election of the entire Council and result in invalidity of all its decisions. This situation constitutes another clear evidence for European Court which is dealing with Polish cases concerning independence of Polish judiciary that neo-NCJ does not meet European standards and that democracy and the rule of law are jeopardised in Poland.