Association of Polish Judges IUSTITIA is critical to the changes adopted at the 61st session of the Sejm (Polish 1st Chamber of Parliament) and accepted without any further amendments by the Senate, during the deliberations on 16/04/2018. It should be noted, that the aim of these changes is not to improve the rule of law and strengthen the independence of the courts. The public opinion is misled as the intentions of the Legislative are concerned. In fact, these changes deepen and consolidate the state of unconstitutionality of the adopted solutions and destroy the principle of balance and three-partite divisions of the authorities. "IUSTITIA" maintains its negative position on the basic issues covered by these regulations. It is in principle consistent with the opinions presented by the First President of the Supreme Court on 9 and 12 April 2018.
I. The act of 12/04/2018 on the change to the Act on the system of common courts, the Act on the National Council of the Judiciary and the Act on the Supreme Court (Sejm Print no 2389).
a) The procedure for dismissing the presidents of common courts - IUSTITIA opinions in a negative way the two-step consultation procedure when dismissing presidents or vice presidents of courts. The need to consult the court's Collegium (the court organ consisted by the president of the court and 8 judges), and in the case of a negative opinion, also the position of the National Council of the Judiciary creates the appearance of democratizing the process of filling a post in the courts. The first opinion on this matter will be expressed by the Collegium, which will consist of two representatives of the Minister of Justice (president of the district court and the oldest vice-president of this court, both appointed by the Minister of Justice). The second necessary opinion is to be taken by a qualified majority of 2/3 votes by the National Council of the Judiciary. Currently, this body - in the opinion of constitutionalists - is inconsistent with the Constitution and international standards, it is to a large extent the representation of the executive, and in particular the Minister of Justice – Prosecutor General. This situation, under any circumstance, cannot be treated as an independent body. In this perspective, the proposed change is illusory, as it does not constitute any real restriction for the Minister of Justice - Prosecutor General (MS-PG) in dismissing court presidents. Additionally, it should be noted that it follows a period of completely arbitrary dismissal of about 150 presidents and vice presidents of courts.
b) Consent to continue to take the post of a judge - SSP "IUSTITIA" negatively opines changes introduced in this respect. They are of a cosmetic nature, because the possibility of taking the post of a judge after reaching a certain age (65 years) depends on the decision of the political body - the president in the case of the judges of the Supreme Court and the body controlled and elected by politicians, ie the National Court Register in the case of ordinary court judges.
In this respect, we uphold the previous opinion. The regulation was correct, which required the judge to submit a statement in this respect and to submit an appropriate medical certificate and did not make it dependent on the position to be taken further by decisions of other authorities.
It is characteristic that in both cases - dismissing the court`s Presidents and agreeing to continue taking office - there is an apparent restriction of the powers of the Minister of Justice-Prosecutor General to the newly elected National Council of Judiciary. This treatment is justified by the factual and legal connections of the members of the NCJ with the Minister of Justice-Prosecutor General (see https://iustitia.pl/nowa-krs). This is confirmed not only by the commonly known connections of the NCJ members with MS-PG, but also by the fact that only after the change in the composition of the National Court Register the parliamentary majority decided on such changes to the legal regulation.
c) Change in the rules for the retirement of women - judges (Article 69 (2b) of the Law on the System of Common Courts). The change in the scope of the age of the transition of judges - women to retirement and leaving them the right to decide as to the time of exercising their entitlements under retirement - deserves approval. We treat these changes as aiming to implement the principles of non-discrimination due to gender and age in the workplace.
II. The act of 12/04/2018 amending the act on the Supreme Court (Sejm Print no 2390).
The amendment contained in the Act amending the Act on the Supreme Court pursues three main objectives, i.e.
1) decree on the total budgetary autonomy of the (newly created) Disciplinary Chamber (change of Article 7 of the Act on the Supreme Court),
2) reducing the scope of competence of the First President of the Supreme Court (change regarding Article 73 § 2 of the Act on the Supreme Court),
3) preventing a situation in which circumstances not provided for in the currently applicable Supreme Court Act will not be possible for the President of the Republic of Poland to appoint a judge fulfilling the duties of the First President of the Supreme Court or the President of the Supreme Court managing the work of a given chamber (amendment of Article 111 of the Act on the Supreme Court).
SSP IUSTITIA continuously holds its negative position related to the new discriminatory regulation of disciplinary proceedings in common courts and the Supreme Court. Similar remarks apply to the rules of functioning of the non-professional judges in the Supreme Court. This law goes a step further in the politicization of the Supreme Court by introducing an unknown Constitution of the institution of the "First Judge of the Supreme Court." It should be strongly emphasized that the Constitution of the Republic of Poland entrusts only the First President to the Supreme Court appointed by the President of the Republic of Poland for a six-year term. from among the candidates presented by the General Assembly of the Judges of the Supreme Court.
In this respect, we fully support the position of the First President of the Supreme Court in the aforementioned opinion.
III. It should be added that similarly critical positions regarding the proposed changes have already been taken on April 16, 2018. The Assembly of representatives of the Katowice appeal judges regarding the National Council of the Judiciary and the publication of judgments of the Constitutional Tribunal and regarding subsequent amendments to the political system (see:https://iustitia.pl/resolutions/2206-katowiccy-judges-in-case-domestic-council-court-in-case-publication-judgments-tribunal-constitutional-and-in-case-subsequent-amendment-laws-laws) and Assembly of judges of appeal Krakow (see:https://iustitia.pl/uchwaly/2207-krakowscy-sedziowie-apeluja-do-sedziow-czlonkow-nowej-krs-o-rezygnacje-z-funkcji).