On Thursday, the Senate voted in favor of the bill on the National Council of the Judiciary (KRS), which was passed by the Sejm on April 12th. It proposes that 15 judge members 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 judge members of the Council are to consist of:

– one judge from the Supreme Court,
– two judges from the Court of Appeals,
– three district court judges,
– six regional court judges,
– one military judge,
– one judge from the Supreme Administrative Court (NSA),
– one judge from the Provincial Administrative Court.

Groups of judges will be able to nominate candidates – 40 district court judges, 25 regional court judges, 10 court of appeals judges. Additionally, candidates could be nominated by the Supreme Bar Council, the National Chamber of Legal Advisors, and the National Chamber of Notaries. Retired judges do not have the right to support a candidate’s nomination or to stand as a candidate for membership of the Council.

The bill also provides for the establishment of a Social Council working alongside the KRS, which is to have an advisory role. Its composition is to include one person appointed by the Supreme Bar Council, the National Chamber of Legal Advisors, the National Chamber of Notaries, the Main Council of Science and Higher Education, the National Chamber of Judicial Officers, the Commissioner for Human Rights (RPO), and a trio of representatives from non-governmental organizations appointed by the Council for Public Benefit Activities.

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

The sensitive issue of newly appointed judges running for office

During the Senate proceedings, several dozen amendments were proposed. PiS senators, for example, suggested delaying the start of the new KRS’s work until May 2026. However, their amendments were rejected, as was the proposal to reject the bill in its entirety.

Instead, amendments were passed allowing vacant positions in the KRS (e.g., due to a member’s death) to be filled by the next person with the highest number of votes, and allowing for the possibility of casting more than one vote in competitions. Judges will be able to nominate three judges from district courts, two from regional courts, two from appellate courts, one from the Supreme Court (SN), Supreme Administrative Court (NSA), provincial administrative courts, and military courts.

Senators also changed the provisions regarding passive electoral rights. The bill, as it came out of the Sejm, stated that judges appointed by the new KRS procedure could not run for KRS membership, unless they return to a position held under a procedure before 2018.

Critical comments on this solution were made during the parliamentary work on the bill by, among others, the Civil Development Forum and the Helsinki Foundation for Human Rights. “Their status as judges has not been questioned in any binding decisions of the Republic of Poland; moreover, the state itself honors this status, for example, by recognizing judgments issued or paying salaries to these judges. The fact that the participation of a particular group of judges in adjudicating panels results in a violation of the right to a fair trial and carries appropriate procedural consequences does not in itself justify depriving them of passive electoral rights in elections to the Council,” FOR argued in its opinion.

The Office for Democratic Institutions and Human Rights of the OSCE, in an urgent opinion issued in April, stated, “Such an approach may be justified as an initial, exceptional transitional measure applicable to the first KRS elections in its new composition, pending the resolution of a much broader and more controversial issue related to the status of judges appointed or promoted by the KRS after the 2017 reform.”

Key Opinion of the Venice Commission

On Wednesday, May 8th, the Venice Commission also issued an opinion on the draft law regarding the KRS, a request made by Minister Bodnar back in March. The Commission evaluated the entire reform as aiming to strengthen the independence of the judiciary and in line with European standards. It also deemed permissible the shortening of the current KRS’s term, which had been a controversial issue among the right-wing. However, the Venice Commission criticized the exclusion of newly appointed judges from the passive electoral right in elections to the Council because such a mechanism does not provide for their individual assessment. According to the Commission, this solution is disproportionate.

In light of this opinion, Senator Krzysztof Kwiatkowski (pictured at the top) proposed an amendment to remove from the bill the provision that excludes newly appointed judges from running for the new KRS.

“In light of the opinion of the Venice Commission, without a comprehensive regulation of the status of improperly appointed judges, excluding them from passive electoral rights could violate the principle of proportionality. Therefore, the Ministry supports this amendment,” said Deputy Minister Dariusz Mazur during the Senate committee’s work on Thursday.

The amendment striking out the provision excluding newly appointed judges from voting passed unanimously in the Senate.

What will the president do?

Now the bill will return to the Sejm, which will decide whether to accept or reject the Senate’s amendments. The change regarding the inclusion of newly appointed judges in the process of selecting the new KRS is significant, but, obviously, it has the government’s support. What decision will Andrzej Duda make?

The president had already announced several weeks ago in an interview with Dziennik Gazeta Prawna that he would veto the bill. In the interview, he specifically pointed out the issue of newly appointed judges:

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

As money.pl reported on Monday, the government had been negotiating the bill with the Presidential Palace. Adam Bodnar confirmed that talks had taken place. He said, “This is the last stage where one can still consult with the president and avoid the risk of a veto.”

Complying with the opinion of the Venice Commission thus has a dual significance – it also meets the expectations of the Presidential Palace. Will this persuade Andrzej Duda to sign the bill?

It’s still uncertain. The issue of newly appointed judges was not the only criticism of the amendment prepared by the government. The president also has more fundamental objections to it. In the aforementioned interview, he stated that the current KRS is the only one in history that has not been challenged by the Constitutional Tribunal. The president referred, 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 constitutional. However, the project envisages the termination of the term of the new KRS, a body that Andrzej Duda considers constitutional, but whose independence has been repeatedly questioned in the case law of the CJEU and the ECtHR.

The article was published in Polish in OKO.press on 10 May 2024.