On Friday, April 12th, the Sejm passed in the third reading the amendment to the law on the National Council of the Judiciary. The project is a response to the crisis related to the formation of the Council (referred to as the neo-KRS), which has been functioning since 2018. According to the jurisprudence of the Supreme Court, the Supreme Administrative Court, the Court of Justice of the European Union, and the European Court of Human Rights, it is inconsistent with the Polish Constitution and does not meet international standards.

The main issue is that the judges who are members of the Council are elected by the Sejm, and the majority of them have strong ties to the executive branch. Additionally, they assumed their positions after the term of the Council prior to 2018 was interrupted before the constitutional deadline. The current KRS is considered a source of problems with the rule of law in Poland because both Polish and international jurisprudence question the status of judges appointed through procedures before this body.

The Ministry of Justice presented the KRS reform project in January. In February, after being reviewed by dozens of institutions (including courts and legal organizations), the project was submitted to the Sejm. Work on it lasted almost two months, and one of the stages was a public hearing held on March 26th.

The National Council of the Judiciary (KRS) to be elected by judges

The bill adopted today proposes that 15 member-judges of the KRS would be elected by judges, not by members of parliament, as has been the case since 2018. The elections are to be organized by the State Electoral Commission. The fifteen member-judges of the Council are to consist of:

– one Supreme Court judge,
– two appellate court judges,
– three district court judges,
– six regional court judges,
– one military court judge,
– one Supreme Administrative Court judge,
– one judge from the provincial administrative court.

Groups of judges would be able to nominate candidates – 40 district court judges, 25 regional court judges, and 10 appellate court judges. Additionally, candidates could be nominated by the National Bar Council, the National Council of Legal Advisors, and the National Notary Council. The right to support a candidate’s nomination for membership in the Council and to stand as a candidate for membership in the Council is not granted to retired judges. Also, judges appointed through procedures before the neo-KRS cannot run, unless they return to a position held through a procedure before 2018.

The bill also provides for the establishment of a Social Council operating alongside the KRS, which is to have an advisory character. It is to consist of one person nominated by the National Bar Council, the National Council of Legal Advisors, the National Notary Council, the Main Council of Science and Higher Education, the National Chamber of Judicial Officers, the Ombudsman, and three representatives of non-governmental organizations appointed by the Council for Public Benefit Activities.

The current KRS is to conclude its work on the day the election results for the Council shaped by the new law are announced.

President announced veto

Both the Law and Justice (PiS) party and the Confederation were against the amendment to the law. Arguments were raised that the new method of electing members of the KRS by judges themselves is a return to “judicracy” and also undermines Poland’s sovereignty because it is a response to international jurisprudence. Requests for the rejection of the law in its entirety were unsuccessful. Therefore, PiS proposed amendments, which included allowing the current KRS to complete its term, with new elections to be held only in 2026. Additionally, the so-called “neo-judges” would gain the right to stand in these elections. These proposals were rejected by the Sejm.

The President has already announced that he will veto this law. In an interview with Dziennik Gazeta Prawna, he stated that the current KRS is the only one in history that has not been challenged by the Constitutional Tribunal. The President refers, of course, to the “judgments” of the politicized Constitutional Tribunal under Julia Przyłębska, which in 2021 ruled that the KRS before 2017 was unconstitutional, while its new form is considered constitutional.

But in the conversation, an argument was also made regarding the participation of the so-called “neo-judges” in the selection procedure:

“This law will not gain my approval in this form because there is no basis for differentiating judges. Judges received their nominations from the President of the Republic of Poland, took oaths, and all have equal status,” said Andrzej Duda.

What about the exclusion of neo-judges?

Interestingly, during the drafting of the law, social organizations also drew attention to the issue of excluding so-called neo-judges from the first selection procedure. In an opinion on the project, analysts from the Civil Development Foundation recommended an amendment to delete such a provision.

“We consider this solution unjustified and disproportionate. It should be noted that the identified violations of the requirements for effective judicial protection and the right to a fair trial concern only the adjudication by judges appointed at the request of the current KRS and their sitting in court panels. None of the decisions binding the Republic of Poland have questioned their status as judges; moreover, the state itself honors this status, recognizing issued judgments and paying salaries to these judges. The fact that the participation of a certain group of judges in adjudicating panels results in a violation of the right to a court and entails appropriate procedural consequences does not justify depriving them of the passive electoral right in elections to the Council. This solution could be acceptable if the KRS itself were given the competence to reassess the nomination process of judges appointed at the request of the current Council, or the ability of these judges to ensure effective judicial protection.”

Similar views were also expressed by the Helsinki Foundation for Human Rights.

However, the solution contained in the project was deemed acceptable in an urgent periodic opinion prepared by the Office for Democratic Institutions and Human Rights of the OSCE.

“Such an approach may be justified as an initial, exceptional transitional measure applicable to the first elections of the KRS in its new composition, before resolving a much broader and more controversial issue related to the status of judges appointed or promoted by the KRS after its composition changed following the 2017 reform,” reads the opinion published on April 8th.

The OSCE emphasizes that the adoption of the project should be accompanied by “a more comprehensive judiciary reform aimed at addressing systemic deficiencies in the judicial system in Poland and the status of all judges appointed in flawed proceedings involving the KRS in its composition after the 2017 amendment.”

The draft law on the KRS is just one part of the rule of law restoration package announced by Minister of Justice Adam Bodnar. Also in preparation are laws that will address the status of the so-called neo-judges.

In its urgent opinion, the OSCE also addressed the issue of the termination of the current KRS’s work. Experts considered that in light of serious shortcomings in the formation of the Council, ending its work ahead of schedule “seems to be a justified solution, provided it remains an exceptional (one-time) measure in the given extraordinary circumstances.”

The article was published in Polish in OKO.press on 12 April 2024.