by Anna Wójcik

The President of the new National Council of the Judiciary (KRS), Leszek Mazur, submitted to the Polish Sejm his report on the activity of the new Council in 2018, the first year it was in operation. The report de facto encompasses a period of eight months, from May to December, as the former KRS was in office until then.

The President of the new National Council of the Judiciary (KRS), Leszek Mazur, submitted to the Polish Sejm his report on the activity of the new Council in 2018, the first year it was in operation. The report de facto encompasses a period of eight months, from May to December, as the former KRS was in office until then.

Mazur gave his report before Commissioner for Human Rights, Adam Bodnar, who yet another year submitted his report on the activity of the Commissioner’s office before an almost empty chamber.

The President of the new KRS gave a brief statement based on statistics. Such raw numbers can create a falsely positive impression on those unfamiliar with the numerous controversies surrounding the manner in which the neo-KRS was appointed and its functioning.

Mazur declared that within 8 months the Council had assembled 17 times and reviewed 1,302 candidates for the offices of judge and magistrate, issuing positive opinions on 322 candidates, with a majority of women (168) over men (154).

He also boasted that the new KRS included the largest number of judges from district courts in 30 years.

Background: for years, judges have stated that the Council should be more representative, by including judges from all levels of the court system. Unfortunately, the present large number of judges from district courts in the current Council is rather a product of the fact that the majority of Polish judges boycotted the recruitment process to the neo-KRS.

Surprisingly, Leszek Mazur also made mention of the fact that in September 2018 the new Council was suspended by the European Network of Councils for the Judiciary. He did, however, emphasise that membership can be restored (in August 2018 he commented that the suspension “was meaningless”).

The entire 117-page report on the activity of the KRS in 2018 is accessible here (in Polish).

Opposition MPs pressing concerns about holes in the report

Leszek Mazur’s report was reviewed positively by MPs of the ruling Law and Justice (PiS) party.

Opposition MPs pointed out elements of the activity and omissions of the new KRS that President Mazur failed to mention.

MP Arkadiusz Myrcha (PO-KO) declared that the President’s speech and the written report by the KRS might give the impression that everything in the Council is functioning like usual. But 2018 “was a year in which a revolution generated the deepest crisis in the history of the institution. It turns out that we are facing the destruction of an institution that is supposed to guard the independence of the judiciary. The question is, are we dealing with an accident, or was this your [Law and Justice’s] intention from the start?”

MP Robert Kropiwnicki (PO-KO) asked President Mazur about one of the most tightly-kept secrets of the present Parliament – the list of those who gave their support to judges-candidates to the KRS.

Mazur emphasised that he believes the verdict of the Supreme Administrative Court (NSA) requiring the lists to be disclosed to public opinion should be carried out, but only after the conclusion of proceedings initiated by the President of the Personal Data Protection Office and proceedings presently before the Constitutional Tribunal (TK).

Background: The Polish Constitution mandates that 15 judges form the KRS. Judges seeking a spot in the Council must receive the support of at least 25 other judges or 1,000 Polish citizens. After the election of the new KRS, publication of the list with the names of judges declaring their support for specific candidates was refused. The Supreme Administrative Court ruled that those names must be disclosed. However, the Chancellery of the Sejm has yet to carry out the NSA’s ruling. The Constitutional Tribunal (TK) and the President of the Personal Data Protection Office have been roped into guarding the secret.

Law and Justice MPs have submitted a motion to the TK for it to decide whether the interpretation of a provision cited by the NSA in its ruling is compliant with the Constitution. Meanwhile, President of the Personal Data Protection Office Jan Nowak has initiated two proceedings to determine whether disclosure of attachments with the names of those supporting candidates to the Council would be in breach of GDPR and provisions of Polish law. The proceedings initiated with regards to GDPR are groundless.

MP Marcin Święcicki (PO-KO) asked the President of the KRS about the harassment and repression of judges and what the new Council had done to defend them. In response, Leszek Mazur tried to downplay the matter.

He replied that over a thousand proceedings are initiated annually, of which only a few dozen result in the imposition of disciplinary penalties, with the lightest ones, i.e. reprimands, prevail. He also suggested that activities such as appearances by judges at rock festivals go beyond what is appropriate for members of the bench. Judge Arkadiusz Krupa (who was ultimately not punished) had to justify himself to the disciplinary spokesman for his appearance in his judge’s toga during a lecture at one such summer festival.

The toolbox of harassment and repression used against judges in Poland is rich.

An excellent summary of 2018 is given in the report “A Country That Punishes”, prepared by the Committee for the Defence of Justice (KOS). Read more: https://ruleoflaw.pl/a-country-that-punishes-pressure-and-repression-of-polish-judges-and-prosecutors-kos-raport/

In 2018, a new disciplinary system for judges was adopted, which has provoked the concern of the European Commission. In connection with this new system, in April 2019 the European Commission initiated proceedings against Poland for breach of EU law. The European Commission has moved to the second stage of the procedure. The next step will be to refer the complaint to the EU Court of Justice.

The President of the new Council also failed to say anything about the arbitrary exchange of presidents of common courts by the Minister of Justice, which was concluded in the first half of 2018.

A survey by the Helsinki Foundation for Human Rights in Warsaw, conducted among judges from all over Poland, shows that these changes have led to deficiencies in the work in courts and a declining sense of independence of judges.

An evaluation of the operation of the new KRS in 2018 was given by judges themselves. At the end of 2018, the vast majority wanted the new council to resign. This harshly negative assessment of the functioning of the Council by judges has become even worse.

When asked by opposition MPs about the reaction of the KRS to media reports that two judges sitting in the Council, Maciej Nawacki and Jarosław Dudzicz, as well as the director of the legal department, Tomasz Szmydt (husband of Emilia “Little Emi” Szmydt, engaged in online smear campaigns), were members of the “Kasta” discussion group on WhatsApp, Leszek Mazur replied that there was no evidence that these people had themselves smeared other judges.

KRS under fire since elections

The National Council of the Judiciary is a constitutional body responsible for safeguarding the independence of courts and judges.

In December 2017, the Sejm adopted a new law on the Council, slightly different from the version against which thousands of people across Poland protested in July 2017.

As a result of the amendment’s entry into force, before the end of the constitutionally mandated four years, the terms of office of all persons sitting in the old KRS were terminated.

The new Council was elected in March 2019 on the basis of the amended law. Judges to the NCJ were elected not by judges, but by parliament.

This “born in sin” neo-Council was aware of the poor legitimacy it enjoyed, leading it to file a case with the Constitutional Tribunal to rule on its status. The politicised Tribunal, led by Julia Przyłębska, “legalised” the new KRS in March 2019.

EU courts to rule on the status of the new KRS

The status of the KRS is the subject of a number of preliminary questions referred to the EU Court of Justice Supreme Court, the Supreme Administrative Court and common courts.

In June 2019, the Advocate General of the EU Court of Justice issued a crushing opinion on the new Council. The judgment of the Grand Chamber of the CJEU in joined cases C-585/18, C-624/18, and C-625/18 will be announced in the autumn.

On 24 September the Advocate General will issue another opinion on the KRS in response to questions referred for a preliminary ruling by Judges Beata Maciejewska and Igor Tuleya.
Read more: https://ruleoflaw.pl/disciplinary-regime-under-ecj-review-a-dispute-over-admissibility/
 

Later on, the Advocates General and then the Grand Chamber of the CJEU will answer further questions for guidance submitted by the Supreme Administrative Court and the Supreme Court. At the beginning of September, Judge Anna Bator-Ciesielska addressed further questions regarding the Council to the CJEU.

The European Court of Human Rights in Strasbourg has also lodged a complaint against the KRS.

During the debate on the report of the President of the new KRS, Jerzy Meysztowicz (PO-KO) asked Leszek Mazur whether, if the EU Court of Justice ruled that the new KRS had not been properly appointed, its members “would do the honourable thing and resign”.

It is worth quoting Mazur’s answer in its entirety (interrupted by voices of opposition MPs from the hall and the statements by the Speaker of the Sejm):

“[As members of the National Council of the Judiciary], we were appointed by the Polish Parliament. The ruling of the Court of Justice, however negative it may be, may lead us to resign only if this position of the CJEU is translated into a declaration of the legislature that would mean it is impossible to continue our work.

However, I do not see any possibility to react.

We are bound by the legal order. Honour is important. However, it is not a category that can change the legal order. Everyone can resign. The notion of honour is one we take into account unless there is a corresponding change in the legal system.”

[translated by Matthew La Fontaine]