Minister of Justice Adam Bodnar on July 10 requested the Venice Commission of the Council of Europe to provide an opinion on European standards governing the status of judges.

He sought an opinion regarding two proposed models for addressing the issue of 2,500 neo-judges in Poland, as presented by the Polish Judges Association “Iustitia” and the Helsinki Foundation for Human Rights.

The model proposed by “Iustitia” suggests that due to the defects in the judicial appointment competitions before the neo-National Council of the Judiciary (KRS), all nominations made with its participation should be deemed invalid. Neo-judges would be returned to their previous positions and could undergo a form of verification by participating in competitions before a reformed KRS.

The model advocated by the Helsinki Foundation for Human Rights proposes an individualized assessment procedure for neo-judges, addressing both the nomination process and their subsequent fulfillment of judicial duties. This procedure could result in either the confirmation of the judge by the KRS or a motion to a court for the removal or reassignment of the judge to their previous position.

A codification committee for common courts and the prosecutor’s office was established at the Ministry of Justice, chaired by Prof. Krystian Markiewicz, a judge and president of “Iustitia”. On July 18, Prof. Markiewicz assured that a draft law concerning neo-judges and two neo-chambers in the Supreme Court would be presented in September or October.

Minister Bodnar has repeatedly emphasized that he will use the Venice Commission’s opinion and that European legal standards will guide the justice reform.

In his letter to the Venice Commission, he notes that its opinion would clarify which values and principles should be prioritized when regulating the status of improperly appointed judges and the limits of this process. The goal is to mitigate the risk that the adopted solution may conflict with the European Convention on Human Rights and EU law.

The Venice Commission has already assessed one element of the planned judicial reform, the National Council of the Judiciary (KRS) Act. The Senate passed an amendment incorporating the Commission’s recommendation not to deprive neo-judges of passive voting rights to the KRS. This sparked opposition from judicial and prosecutorial circles. On July 11, based on the recommendation of the Minister of Justice, the amendment was removed, and on July 12, the Sejm passed the KRS Act which now awaits the President’s signature.

Does the Venice Commission’s opinion on the KRS Act imply that it has approved the neo-judges? Not necessarily. At the time of preparing this opinion, the status of neo-judges in Poland was not regulated. No Polish court or European tribunal has ruled that neo-judges were not appointed to judicial positions—only that they are not independent.

Therefore, the debate on justice reform has advocated presenting a comprehensive package of laws concerning the KRS, neo-judges in the Supreme Court, and common courts.

However, it was decided to start with the KRS Act itself. Political considerations were likely significant: the European Commission unlocked funds for the National Recovery Plan based on the promise of gradually implementing the Action Plan for the restoration and strengthening of the rule of law. Additionally, some judges are exerting pressure on the Minister of Justice, criticizing what they perceive as the slow pace of change.

The Venice Commission

The Venice Commission, officially the European Commission for Democracy through Law, is an advisory body of the Council of Europe.

It consists of experts in constitutional and international law, judges from supreme courts and constitutional courts of member states, members of national parliaments, and civil servants. It includes 59 states:

• All member states of the Council of Europe
• Algeria, Brazil, Chile, Israel, Kazakhstan, the Republic of Korea, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia, and the United States.

The main task of the Venice Commission is to provide opinions on proposed and enforced legal acts.

Its opinions are not binding on the states that request them, and there are no direct sanctions for non-compliance.

However, the Venice Commission is a crucial element of the human rights protection system, and its opinions are referenced by EU bodies, including the Court of Justice of the EU and the Council of Europe, including the European Court of Human Rights.

Minister of Justice Highlights the Uniqueness of the Neo-Judges Issue

In a letter addressed to Simona Granat-Menghini, Secretary of the Venice Commission, Minister Bodnar points out that the specific issue of neo-judges cannot be resolved merely by the typical vetting process used in democratization efforts, which is generally applied to assess the suitability of individuals whose appointment is not in question.

Minister Bodnar assesses that due to the number of neo-judges (over 2,500), attempting an individualized assessment would lead to a protracted paralysis of court proceedings, potentially undermining trust in the judiciary. This could also hinder the differentiation between circumstances affecting the assessment of a judge’s independence and impartiality and those constituting disciplinary offenses.

He also notes the challenges related to the body conducting this assessment, which would need investigative powers to determine the factors influencing the decisions of the improperly appointed KRS.

This, according to the minister, increases the likelihood that the individualized assessment process would be further prolonged. He also points that such a procedure could create significant risks of inducing a sense of retaliation.

Minister Bodnar explains to the Venice Commission that the group of neo-judges is diverse and includes:

• Assessors who completed judicial training at the National School of Judiciary and Public Prosecution (without any other path to the profession);
• New judges (former lawyers, legal advisors, prosecutors);
• Judges promoted to higher courts through competitions boycotted by most judges;
• Judges in the Supreme Court;
• Judges in administrative courts and the Supreme Administrative Court.

He further points out that EU institutions, the European Court of Human Rights, and the Committee of Ministers of the Council of Europe have not specified the exact nature of the desired changes regarding neo-judges. He explained that during the expert debate in Poland, two competing models for solving this issue were proposed. He clarifies these models and indicates the associated doubts.

Questions to the Venice Commission

The Minister of Justice has asked the Venice Commission to provide an opinion addressing the following questions:

1. Can the resolutions of the National Council of the Judiciary concerning the appointment of judges be annulled ex tunc, meaning that the appointee was never legally appointed?
2. Is it in accordance with the rule of law to require judges and other legal professionals to return to their previous positions after such resolutions are annulled?
3. Do such individuals have the right to pursue their claims through the courts?
4. Is allowing these individuals to participate in new judicial selection processes, subject to judicial review, sufficient to ensure their right to a fair trial?
5. Is the system of assigning judges to courts where they served before the enactment of the law, until their pending cases are resolved, for a period of two years, consistent with the principles of the rule of law and legal certainty to maintain judicial effectiveness during the re-evaluation period?
6. Finally, is it consistent with the principles of legal certainty and the rule of law to allow parties who have challenged the impartiality or independence of a judge based on their appointment by the current Council to appeal the decisions made by those judges?

The Neo-Judges Issue

Following the parliamentary elections in October 2023, there has been intense debate about mechanisms for restoring and strengthening the rule of law in Poland.

A key element of this discussion is how to address the issue of neo-judges, referring to over 2,500 judges appointed or promoted through procedures involving the National Council of the Judiciary (KRS) constituted under principles altered by PiS in 2017. Unlike previously, 15 KRS members are now chosen by the Sejm (politicians), not by judges themselves.

The National Council of the Judiciary constituted under ruled changed in 2017, commonly known as neo-KRS, operated during a four-year term from 2018-2022 and continues to do so since 2022. President Andrzej Duda appointed judges recommended by the neo-KRS even after the parliamentary elections. Minister of Justice Adam Bodnar has not announced competitions for vacant judicial positions.

The Supreme Court, the Court of Justice of the European Union, and the European Court of Human Rights have ruled in several cases that neo-judges in the Supreme Court chambers do not meet independence standards due to the involvement of the politicized neo-KRS in their appointment or promotion processes.

European courts have not yet ruled on neo-judges in lower-instance common courts. However, in 2020, three combined chambers of the Supreme Court ruled that Polish courts should examine whether judicial panels involving neo-judges are independent. In 2022, the Criminal Chamber of the Supreme Court clarified how such assessments should be conducted.

Under the United Rights government, the “muzzle law,” enacted in February 2020, allowed disciplinary action against judges, among other things, for conducting what was termed a test of independence and refusing to adjudicate in panels with neo-judges. The disciplinary actions were launched against, for instance,  Judge Krzysztof Chmielewski from the District Court in Warsaw or Judge Maciej Ferek from the District Court in Kraków. In April 2024, the new Chamber of Professional Responsibility in the Supreme Court (that replaced a contested Disciplinary Chamber) acquitted Judge Chmielewski and dismissed the case against Judge Ferek. Moreover, the neo-KRS reported the alleged overstepping of powers by Supreme Court Judge Prof. Włodzimierz Wróbel to the prosecutor’s office for carrying out the test of independence and impartiality.

In June 2022, the United Right passed an amendment to the Supreme Court Act proposed by President Andrzej Duda. The ruling party hoped this would satisfy the European Commission and unlock EU funds for the National Recovery Plan. This did not happen.

The amendment, which came into effect in July 2022, introduced, among other things, a test of independence and impartiality for judges, taking into account the circumstances of their appointment and subsequent proceedings. The test is conducted by the Supreme Court in a panel of 5 randomly selected judges from the entire Supreme Court, which can include neo-judges.

For example, in March 2023, the Supreme Court ruled that neo-judge Małgorzata Bednarek does not guarantee impartiality and independence. In 2024, the Supreme Court ruled that properly appointed judges (i.e. not with the involvement of the neo-KRS in the process) Piotr Schab, Przemysław Radzik, and Michał Lasota, who are the symbols of the repression against judges, fal the independence and impartiality test.

In March, the District Court in Warsaw ruled that Judge Beata Adamczyk-Łabuda did not pass the test of independence and excluded her from handling cases. The District Court cited Supreme Court resolutions and the European Convention on Human Rights standards in a ruling from the European Court of Human Rights regarding Iceland.

However, the rulings of the Supreme Court and lower-instance common courts will not resolve the neo-judges issue systemically. This task lies ahead of the ruling majority and the Ministry of Justice.

Two Models

Before the formation of the new government in December 2023, two models emerged in the expert debate regarding the issue of neo-judges.

The first model, proposed by the Polish Judges Association “Iustitia,” is based on the assumption that the resolutions of the neo-KRS appointing or promoting judges should be declared invalid. Therefore, the decisions of the President of the Republic of Poland to appoint individuals mentioned in these resolutions to judicial positions would have no effect. The judicial appointments concluded by neo-KRS resolutions would need to be revisited. Neo-judges would be returned to their previous positions and could undergo a form of verification by participating in new competitions before a reformed KRS.

The second model, proposed by the Helsinki Foundation for Human Rights, involves an individualized assessment procedure for neo-judges, addressing both the nomination process and their subsequent fulfillment of judicial duties. This procedure could result in either the confirmation of the judge by the KRS or a motion to a court for the removal of the judge from office or reassignment to their previous position.

The Helsinki Foundation for Human Rights criticizes the model proposed by “Iustitia” because no authority (Polish court, European tribunal) has declared that all individuals appointed through the neo-KRS process lack judicial status.

Therefore, enacting a law that would automatically remove or reassign all such judges to lower positions could violate Article 180, Paragraph 2 of the Constitution, which states that removal from office or reassignment of a judge against their will requires a court decision.

The Helsinki Foundation for Human Rights also notes the lack of appeal options for neo-judges to the court, which violates European Convention on Human Rights standards (Article 6, Paragraph 1 and Article 8) and carries the risk that neo-judges could win cases before the European Court of Human Rights in the future.

The Foundation also raised concerns that removing two thousand judges from the legal system could destabilize it.

The Association “Iustitia” and individual judges emphasize the need to rebuild trust not only among citizens in the courts but also among judges themselves. They also highlight issues of fairness and justice: the Association “Iustitia” has called on judges in Poland not to seek promotions to avoid appearing before the neo-KRS and legitimizing the politically-influenced court system created by PiS. They also reference knowledge and respect for European law.

The neo-KRS has been operating since 2018, and the Court of Justice of the EU first addressed it in the AK case ruling of November 19, 2019. In July 2021, the CJEU ruled that the procedure before the politicized neo-KRS was a reason for the lack of independence of judges in the Supreme Court’s Disciplinary Chamber. At least since then, participating in a competition before the neo-KRS casts a shadow on a judge’s or a candidate’s relation to EU law. Since the European Court of Human Rights ruling on the Disciplinary Chamber of July 22, 2021, this extends to the European Convention on Human Rights.

Challenge for the Ministry of Justice

In February in Brussels, Minister of Justice Adam Bodnar presented an Action Plan covering several planned acts, including those concerning the National Council of the Judiciary, the Supreme Court, and common courts. This led the European Commission to approve Poland’s National Recovery Plan. It was a significant success for the beginning of Donald Tusk’s government and fulfilled one of the ruling coalition’s election promises.

The milestones did not directly address the status of neo-judges. However, one requirement was the ability to appeal disciplinary matters to an independent court as understood by EU law (i.e., a panel without neo-judges in the Supreme Court).

Work on government projects continued. Both concepts regarding neo-judges gained influential supporters and opponents.

By spring 2024, the debate seemed to reach a boiling point. Official and unofficial accusations and competing in heroism during the rule of law crisis were rampant. Although “Iustitia” and “Helsinki” and their members engaged in defending the rule of law and collaborated in various ways, not only in the Committee for the Defense of Justice.

The ability to debate and, even passionately, exchange views is a healthy sign of democracy. It is hoped that constructive discussion will help forge the best possible solution to the unprecedented problem.

The Ministry of Justice leadership considered both models. They were discussed, among other forums, in meetings of the Interministerial Team for Restoring the Rule of Law and Constitutional Order, which included representatives from judges’ associations and civil society organizations.

In April, a codification committee for common courts and the prosecutor’s office was established, chaired by the president of “Iustitia,” Prof. Krystian Markiewicz. The committee is tasked with developing a comprehensive model for restoring the rule of law and judicial reform.

Points of contention included Senate amendments to the National Council of the Judiciary law, which implemented the Venice Commission’s recommendations. The amendments improved the process of selecting judges to the KRS, restoring the practice of judges electing KRS members rather than politicians. However, the Venice Commission determined that it was not possible to generally ban neo-judges from running for the KRS. The Senate passed an amendment, which was opposed by seven judges’ and prosecutors’ associations. Several legal organizations, including the Helsinki Foundation for Human Rights, issued statements supporting the Senate’s move.

The Senate amendment, in addition to implementing the Venice Commission’s recommendations, was intended to have strategic significance. In discussions between the Minister of Justice and President Duda, suggestions were made that President Duda would not veto a law allowing neo-judges to run for the KRS. However, these hopes proved unfounded.

The law returned to the Sejm for two months. On July 11, during a session of the Sejm’s justice committee, following the Minister of Justice’s recommendation, the Senate amendment guaranteeing neo-judges the right to stand for election to the KRS was removed. On July 12, the Sejm passed the KRS Act. The law is awaiting President Duda’s signature, who suggested in June that he might veto it.

The Venice Commission as an Arbiter

Poland is a testing ground for rebuilding and strengthening the rule of law. The issue of regulating the situation of neo-judges is unique.

Thanks to civil society’s efforts during the rule of law crisis under the United Right government, the government did not have to start from scratch after the parliamentary elections in 2023.

During the expert debate, opinions on the two proposed solutions clash. Both models are based on significant legal and extra-legal arguments – concerning, for example, fairness and justice, as well as the effectiveness of the justice system.

The decision to consult the Venice Commission about the discussed solutions shows respect for European legal standards and also has a pragmatic dimension.

Firstly, the Venice Commission, as an arbiter, is expected to help resolve the national dispute concerning the two concepts. Secondly, following the Venice Commission’s opinion would protect the government from image and political repercussions, such as potential complaints from neo-judges to the European Court of Human Rights.

As history has shown with the passing of the National Council of the Judiciary Act, the Venice Commission’s opinion does not necessarily dictate the outcomes of the legislative process in Poland.

There is a risk that instead of cooling tensions, it could exacerbate the dispute between proponents of different solutions to the neo-judges issue. Furthermore, the head of the codification committee tasked with helping to develop the government’s project, Prof. Markiewicz, is a supporter of the “Iustitia” solution.

The above text by Anna Wójcik, a co-founder of the Osiatyński Archive, was originally published in OKO.press on July 18, 2023, https://oko.press/bodnar-komisja-wenecka-neo-sedziowie.