The Commissioner for Human Rights (CHR) in a letter sent on October 21, 2024, to Prime Minister Donald Tusk, addressed the opinion issued by the Venice Commission on October 14.

The CHR assessed that this opinion is fully consistent with the stance previously presented by his office, as well as with the views expressed by several non-governmental organizations, including the Helsinki Foundation for Human Rights.

The CHR emphasized that there is no basis for assuming that individuals appointed to judicial positions after 2018 are not legitimate judges and that the rulings they have issued are non-existent. He distinguished between:

– the irregularity in the establishment of a public authority, stemming from its appointment through a legally flawed procedure,

– and the non-existence of the authority or the non-existence of decisions made by it.

According to the Venice Commission and the CHR, the rulings of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) do not imply that judicial appointments or decisions issued by such judges do not exist or lack legal effect.

The CHR stated that implementing the rulings of the ECHR and the CJEU should involve:

– creating statutory provisions to regulate the status of judges appointed after 2018,

– and enabling, under specific circumstances, the reopening of cases through appropriate procedures.

The mechanisms adopted should comply with constitutional requirements regarding the status of judges, particularly Article 180, paragraph 2 of the Constitution, which stipulates that the removal of a judge from office, suspension, transfer to another location or position against their will, can only occur by court ruling and only in cases defined by law. These mechanisms must also respect the stability of final judicial decisions.

CHR Wiącek calls on the Prime Minister to respond to the opinion of the Venice Commission and to incorporate its recommendations in the reform efforts aimed at addressing the status of judges appointed between 2018 and 2024, as well as the judgments they have rendered.

Why is this important?

Poland must regulate the status of over 2,500 judges appointed since 2018 to the Supreme Court and other common courts with the involvement of the politicized National Council of the Judiciary (NCJ). The European Court of Human Rights explicitly ruled on this issue in December 2023, in a pilot judgment addressing systemic problems, in the case of *Wałęsa v. Poland*.

The Ministry of Justice, along with the Codification Commission for the Judicial System and Prosecution established within it, is working on draft laws concerning judges appointed through flawed procedures, the so-called “neo-judges,” and the legal effects of the judgments they have issued.

Emerging solutions

Two primary models have emerged from several months of discussions.

The first model, proposed by the Polish Judges Association “Iustitia,” whose president, Professor Krystian Markiewicz, also chairs the codification commission, suggests reverting the neo-judges to their previous positions and re-running the appointment competitions.

The Helsinki Foundation for Human Rights, on the other hand, argues that, in accordance with Polish constitutional requirements and international law norms, an individual review of judges appointed through flawed procedures is necessary.

Work on these draft laws continues, and the ministry has not yet publicly announced specific solutions.

The issue of the status of the so-called neo-judges is not only a constitutional problem but also concerns the functioning of courts, which, both at the European and national levels, rely on mutual trust. Many judges have expressed a lack of confidence in those who decided to apply for positions through the NCJ appointed between 2018 and 2022, under rules changed by the Law and Justice (PiS) party in 2017.

These doubts are particularly evident regarding judges who took such steps after the January 2020 resolution of three chambers of the Supreme Court. This resolution, which has the force of a legal principle, states that judges should conduct a test of the independence of those judges to whom cases are referred, evaluating the circumstances of their appointment.

Since 2021, both the Court of Justice of the European Union and the European Court of Human Rights have, in numerous rulings, indicated that judges appointed through flawed procedures involving the NCJ selected under politicized rules do not meet the criteria of an independent court as defined by EU law and the European Convention on Human Rights.

However, voices have emerged in the Polish public debate suggesting that the appointments of neo-judges never legally occurred, as the competitions before the flawed NCJ were defective from the outset.

According to this perspective, these judges were not appointed in accordance with the law. This view, however, is not supported by the rulings of the CJEU or the ECHR, which speak of the lack of independence of such judges, rather than the ineffectiveness or non-existence of their appointments. Nonetheless, this interpretation is shared by some lawyers and judges.

The CHR’s position aims to bring clarity to this debate.

Venice Commission Opinion

In July, Minister of Justice Adam Bodnar requested an opinion from the Venice Commission, an expert body of the Council of Europe.

On October 14, the Venice Commission issued its opinion, indicating that:

– Poland is obliged to regulate the status of judges appointed through a flawed procedure and the rulings they have issued, as required by the rulings of the European Court of Human Rights.

– Poland has the discretion to choose the measures, but these must comply with the standards of the European Convention on Human Rights.

– Any solution must address the status of all judges appointed through a flawed procedure.

– The assessment of the procedural flaws cannot be conducted by the government but must be carried out by an independent body, with the possibility of judicial review.

– The evaluation must be based on pre-established criteria and procedures.

– The assessment must be individualized and conducted as swiftly as possible.

– It is not permissible to introduce legislation declaring that all judicial appointments made by the neo-NCJ during a certain period are invalid.

– Mass retroactive invalidation (ex tunc) of all resolutions of the neo-NCJ does not align with the rule of law, as it fails to meet the requirements of proportionality.

– In cases where a judicial appointment or promotion is invalidated, there must be a right of appeal to a court; it is not sufficient that the individual merely be allowed to compete in a new competition.

– Temporary measures may be introduced to ensure the functioning of the judiciary during the review of the neo-NCJ’s resolutions, such as delegating judges to other courts.

– In certain cases, parties may be allowed to argue that a judgment issued with the involvement of a judge appointed through a flawed procedure is invalid.

Reactions to the Venice Commission’s opinion

The Venice Commission shared many of the concerns previously raised by the Helsinki Foundation for Human Rights. The foundation’s president, Maciej Nowicki, welcomed the opinion, emphasizing that the direction taken by the Venice Commission aligns with the analyses and demands the foundation has long put forward.

The Helsinki Foundation has firmly rejected the idea of automatically removing or demoting judges appointed after March 2018 by law and has advocated for the individual review of these appointments with guarantees of the right to a court.

The Polish Judges Association “Iustitia,” led by Krystian Markiewicz, also highlighted that the Venice Commission confirmed the need for a swift systemic solution to the issue of neo-judges in Poland. Markiewicz noted that the commission affirmed the necessity of a systemic approach, dividing the neo-judges into groups—an assumption adopted by the codification commission from the outset.

A new phase of debate

The Venice Commission’s position and the responses from institutions and social organizations mark a new phase in the debate on how mechanisms for grouping judges appointed through flawed procedures could be constructed and on what criteria they should be based.

The Venice Commission also emphasized that dividing judges into groups is permissible, but it is crucial to maintain some form of individual assessment for each case by a body independent of the government, with the possibility of judicial appeal. Furthermore, this process must be conducted swiftly. Grouping judges could streamline the procedure, and it would be possible to categorize the competitions for judges based on the type and degree of procedural flaws involved. At the same time, the work of neo-judges after their appointment, such as their judicial rulings, could be evaluated in the framework of new competitions overseen by an independent National Council of the Judiciary (NCJ).

Additionally, a decision must be made regarding which body will be responsible for assessing the status of neo-judges. Experts suggest that this responsibility should fall to a newly appointed, legally untainted NCJ, which would operate independently and in line with both constitutional and international standards. It is expected that this NCJ would have the mandate to conduct transparent verification procedures, with its decisions being subject to appeal in courts.

On October 17, Minister of Justice Adam Bodnar stated that the Venice Commission recommended a “middle ground” approach between the two proposed models—automatic removal by law and individual verification of neo-judges. The Commission advocated for a partial individual examination of judges within specific groups. According to the Minister, the evaluation of judges appointed through flawed procedures should be handled by a newly formed NCJ, but this will likely only be feasible after the presidential elections and the establishment of a new NCJ in 2026.

Conclusions

The debate on the status of neo-judges, their appointments, and the legal validity of the judgments they have issued is far from over. The Venice Commission’s opinion has provided a framework for how Poland should approach the issue, emphasizing that while Poland has some discretion in selecting the methods to regulate the status of these judges, it must ensure compliance with the European Convention on Human Rights. Both systemic and individualized approaches will need to be balanced to resolve this complex legal issue, which impacts the integrity of the judiciary, mutual trust within the court system, and Poland’s adherence to its obligations under international law.

The article was written by Anna Wójcik and published on OKO.press on October 23, 2024. Link to the original article.