On March 25th, 2019 Polish Constitutional Tribunal delivered a ruling in the case brought before it by the National Council of the Judiciary. In its motion, the Council questioned the constitutionality of, among others, the procedures of appointing its members and appealing against its resolutions to courts. The Tribunal’s judgement might be crucial for the preliminary reference proceedings before the Court of Justice of the EU, concerning the new chambers of Polish Supreme Court and the new Council’s competence to appoint judges of these chambers.

The Council’s motion

In its motion, the Council requested for assessment of several provisions of the controversial 2017 ammendment to the Act on the National Council of the Judiciary, which has changed, inter alia, the procedure of appointing its judge-members. Before the change, the 15 judge-members of the Council used to be chosen by judges themselves, whereas now their appointment is made by the lower house of the Parliament (by its 3/5 majority). The procedure under the new provisions has been boycotted by the largest judges’ associations and was carried out among numerous controversies (e.g. the lists of persons supporting the candidates have not been published so far).

However, the Council’s motion went even further and demanded the control of consitutionality of other provisions, relating to the procedure of nominating judges. The Council indicated that the provisions concerning appeals procedure against its nomination resolutions were unconstitutional. This was undoubtedly connected with the appeals of these judges who did not obtain a positive recommendation from the Council in August 2018 and questioned its resolutions before the Supreme Court or the Supreme Administrative Court.

The Tribunal’s judgement

Originally, the sentence was to be announced on March 14th – 5 days before the hearing in the Court of Justice of the European Union, concerning the preliminary references of Polish Supreme Court. However, the announcement was postponed by the Tribunal without a word of justification to 25th March.

In its judgement, the Constitutional Tribunal decided that:

• the process of appointing new judge-members of the National Council of the Judiciary was in compliance with the Constitution;
• the provisions allowing judges applying for the position in the Supreme Court to appeal against the decisions of the NCJ to the Supreme Administrative Court were unconstitutional.

When it comes to the process of appointing new judge-members of the Council, the Constitutional Tribunal decided that the Constitution did not specify how or by whom judges should be appointed to the Council. Secondly, the Tribunal’s judgement narrowed the scope of courts’ oversight on the National Council of the Judiciary’s resolutions. This decision may have influence on the pending proceedings initiated by a judge whose candidacy to the Supreme Court was rejected and who appealed against it to the Supreme Administrative Court.

The CT’s ruling has been delivered with participation of a person assigned for an already taken seat in the Tribunal (a so-called “double-judge”). There are also significant doubts regarding the process of assigning judges to cases by the Tribunal’s President: the commented one (like almost all politically important cases) has been heard only by judges appointed by the currently governing majority.

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Helsinki Foundation for Human Rights’ brief concerning the Act on the National Council of the Judiciary before the Constitutional Tribunal is available here (in PDF).