This is the first appeal of its kind in the history of the National Council of the Judiciary, which was established in 1989. The NCJ was supposed to ensure the independence of the courts, which had been breached during the People’s Republic of Poland period. From the outset, it was assumed that judges will be involved in the NCJ.

The NCJ was then written into the Constitution of 1997, and the 15 judge-members were elected by the judges themselves. This was the case until 2018, when PiS violated the Constitution and dissolved the legal NCJ during its term of office, appointing a new one (the neo-NCJ) in its place, which was elected for the first time by MPs (from PiS and Kukiz’15).

However, the Neo-NCJ is unconstitutional for several reasons. It does not have representatives of all courts. Nor was the Sejm allowed to elect 15 judge-members to it. The Constitution states that the Sejm can only elect four of its own representatives.

Furthermore, the neo-NCJ consists mainly of judges connected with Ziobro’s ministry, including court presidents nominated by the minister. Therefore, it is connected to politicians and is not an independent body and does not safeguard the independence of the courts. This is what the Constitution obliges it to do.

For these reasons, in their judgments, the Polish Supreme Court and Supreme Administrative Court, as well as the European Court of Human Rights and the Court of Justice of the European Union, challenged the legality of the neo-NCJ and the nominations it had given to the judges. Approximately 1,500 neo-judges have already received such nominations.

And now 50 former members – judges of the legal NCJ – state the same. The appeal was signed by almost all members from the beginning of the Council’s existence, including former presidents of the Supreme Court Adam Strzembosz, Małgorzata Gersdorf and Lech Gardocki; Beata Morawiec, currently president of the Themis association of judges, and Waldemar Żurek, one of the symbols of free courts. As well as the last chairman of the old NCJ, which was dissolved by PiS, Dariusz Zawistowski (currently a Supreme Court judge).

The appeal is timely, because the term of office of the neo-NCJ ends in March and the Marshall of the Sejm has already ordered elections of its members for a second term. The Sejm already has all the candidates. Almost all current members of the neo-NCJ and Ziobro’s former deputy, Łukasz Piebiak, are running for office. However, the opposition wants to submit its bill to restore the rule of law.

We are publishing the appeal of the former members of the NCJ in full because of its importance.

‘We, judges, members of the National Council of the Judiciary of all terms of office in the years 1990–2018, including members of the Council, the term of office of which was interrupted in breach of the Constitution of the Republic of Poland, in connection with the election in 2018 of judges – members of the National Council of the Judiciary – pursuant to the Act on the National Council of the Judiciary of 12 May 2011 (consolidated text: Journal of Laws of 2021, item 269), declare that this election was made in breach of Article 187, para. 1, item 2 of the Constitution of the Republic of Poland.

The incompatibility of the appointment of judges – members of the National Council of the Judiciary – with the Polish Constitution resulted in judges, who enjoy prestige and recognition from the environment, not taking part in the elections; only judges supported by politicians and a small group of judges who had long concealed this support did so. The National Council of the Judiciary elected in 2018 had failed to fulfil its basic constitutional function of safeguarding the independence of the courts and the impartiality of judges (Article 186, para. 1 of the Polish Constitution), while its members participated in repressing judges, breaching their independence and undermining their constitutional position.

The fact that the legality of the membership of the National Council of the Judiciary was challenged and the Supreme Court, the Supreme Administrative Court, the Court of Justice of the European Union and the European Court of Human Rights contested the appointment procedures did not put a stop to the Council’s activities, so the number of defectively appointed judges is steadily increasing.

Their status is and will be contested, just like the legality and correctness of their rulings. This breaches the right of the citizens to a trial by an independent court, which is guaranteed by the Constitution of the Republic of Poland, as well as international treaties and conventions, and can bring about unpredictable adverse consequences in legal transactions.

The defective selection of judges and their attitude have also led to the expulsion of the National Judicial Council from the European Network of Councils for the Judiciary (ENCJ), a forum for European cooperation, of which the Council was a founder.

The maintenance of the current, unconstitutional model of electing judges – members of the National Council of the Judiciary – prevents the appointment of a body that is capable of performing the obligations set out in the Polish Constitution, safeguarding the independence of the courts and the impartiality of judges, enjoying the recognition and trust of the public and the judiciary.

Driven by the concern for the assurance of the right of citizens to the fair consideration of their cases by independent and impartial courts established by law, we therefore call upon the legislative and executive authorities to lay down the principles of election of members of the National Council of the Judiciary in accordance with the Constitution of the Republic of Poland and international laws that are binding on Poland, and upon judges to refrain from participating in the defective procedure for electing members of the National Council of the Judiciary in the name of fidelity to the Constitution of the Republic of Poland and out of a sense of responsibility for the State and the good of its citizens, until the appropriate statutory amendments are made.’

Former presidents, vice-presidents and members of the National Council of the Judiciary in the years 1990–2018

1. Andrzej Adamczuk
2. Grzegorz Borkowsk
3. Ewa Barnaszewska
4. Marek Celej
5. Ewa Chałubińska
6. Janusz Drachal
7. Teresa Flemming-Kulesza
8. Lech Gardocki
9. Małgorzata Gersdorf
10. Grzegorz Gładysz
11. Barbara Godlewska-Michalak
12. Katarzyna Gonera
13. Piotr Górecki
14. Jan Grzęda
15. Jacek Gudowski
16. Józef Iwulski
17. Andrzej Jagiełło
18. Mirosław Jaroszewski
19. Irena Kamińska
20. Andrzej Konopka
21. Michał Kopeć
22. Jan Kremer
23. Barbara Kurzeja
24. Jerzy Kuźniar
25. Wacława Macińska
26. Aleksandra Marszałek
27. Zbigniew Merchel
28. Beata Morawiec
29. Maria Motylska-Kucharczyk
30. Maria Myślińska
31. Andrzej Niedużak
32. Małgorzata Niezgódka-Medek
33. Gabriela Ott
34. Sławomir Pałka
35. Marek Pietruszyński
36. Irena Piotrowska
37. Ewa Preneta-Ambicka
38. Piotr Raczkowski
39. Jarema Sawiński
40. Krzysztof Strzelczyk
41. Adam Strzembosz
42. Janusz Trzciński
43. Jan Wasilewski
44. Krzysztof Wojtaszek
45. Marek Wolski
46. Dariusz Zawistowski
47. Janusz Zimny
48. Waldemar Żurek
49. Gabriela Gorzan
50. Roman Kęska

Translated by Roman Wojtasz