Within half a year of his tenure at the Ministry of Justice, Minister Adam Bodnar initiated appeal procedures against more than 100 appointees of the previous administration and appointed over 110 new court presidents.

The original KRS (National Council of the Judiciary) application challenged only two provisions of Article 27 of the Act on the Organization of Common Courts. The first provision states that a positive opinion from a court’s board authorizes the minister to dismiss the president, and the absence of such an opinion within 30 days allows the minister to ignore the board. The second provision stipulates that if the board gives a negative opinion, the KRS must issue an opinion, and for a negative opinion to be binding, a resolution must be passed by a two-thirds majority of the Council.

On Thursday, June 20, during a hearing before the Przyłębska Constitutional Tribunal (CT), the judges harshly criticized the applicants, directly suggesting that the application was incomplete and indicating which additional provisions should be challenged.

Allegations from the Neo-KRS

During the June 20 hearing, the neo-KRS was represented by Maciej Nawacki, Joanna Kołodziej-Michałowicz, and Anna Dalkowska. The adjudicating panel of the CT included Bogdan Święczkowski, Krystyna Pawłowicz, Stanisław Piotrowicz, Zbigniew Jędrzejewski, and Rafał Wojciechowski. No representatives from the Sejm or the Prosecutor General were present.

“The constitutional issue pertains to the regulations contained in Article 27, paragraphs 5 and 5a, which, under certain circumstances, effectively exclude the participation of the National Council of the Judiciary in the procedure for dismissing court presidents and vice-presidents, leaving this competence exclusively to the Minister of Justice, who is known to be the supreme central administrative body of the government, which clearly violates the principles of the separation of powers and the independence of courts and tribunals as a distinct judicial authority,” argued Kołodziej.

The same concerns, according to him, apply to the fact that the dismissal of presidents and vice-presidents under this statutory procedure constitutes a breach of the generally protected tenure of their functions.

“We had glaring examples, such as the dismissal of the President of the Warsaw Court of Appeal, where the court board negatively opined on the Minister of Justice’s request,” said Maciej Nawacki, one of the faces of the judicial changes implemented during the PiS government’s tenure by Minister Zbigniew Ziobro.

The “glaring” case mentioned by Nawacki referred to the dismissal of Piotr Schab, a neo-judge and disciplinary spokesman nominated during Ziobro’s term, who pursued judges fighting for the rule of law. He was dismissed by Adam Bodnar on February 22 but resisted this decision and occupied the president’s office for several weeks.

Nawacki: It is a Political Purge

“Since December 13, 2023, the Ministry of Justice has been pursuing an illegitimate goal, expressed repeatedly in requests for the dismissal of court presidents and vice-presidents, articulated in numerous statements by the minister and deputy ministers, and visible on the Ministry of Justice’s website. This goal was also served by the issuance of the notorious regulation, which the CT reviewed on May 16 and found to grossly violate several constitutional standards,” argued Nawacki.

The regulation in question advised judges to follow the jurisprudence regarding the neo-KRS. The application to the Tribunal was filed by the KRS itself, represented, as now, by Judge Maciej Nawacki.

“This goal, and I apologize for the term, is a purge. A purge in the judiciary, aimed at removing specific judges inconvenient for the political power from their functions and ultimately from their judicial office. Such declarations are continuously made, among others, by the deputy minister. These are goals that the Minister of Justice does not hide, but which indicate that judges who took office, whether their first or in higher courts, from 2018 onwards, are to be removed from the judiciary. Initially removed from all administrative functions, and then removed from adjudication following the announced legislative changes, whose constitutionality I will not comment on as they are fortunately still only distant projects,” declared Nawacki.

Nawacki Defines the “Moment of Illegality”

The neo-KRS also requested the CT to address the retroactive effect of its judgments concerning the constitutionality of the provisions. These provisions have been in effect since Zbigniew Ziobro’s tenure. However, the applicants were not interested in challenging the dismissals and appointments made during Ziobro’s time.

“Analyzing the situation, analyzing the provisions not statically but as they have functioned, we tried to determine the moment of constitutional illegality, that is, the moment when the law was broken (…)” said Nawacki.

What is this moment? According to the neo-KRS, it is when the new government began using the provisions for a purpose that lacks constitutional legitimacy.

In other words, according to Nawacki, the provisions became unconstitutional when the new government began using them.

The neo-KRS proposed two dates to serve as the CT’s marker of the unconstitutionality of the provisions:

– December 13, 2023, when the new government was appointed;
– January 18, 2024, when the first dismissal of the President of the Poznań District Court occurred.

“Capturing such a clear date from which we can speak of constitutional illegality is the time frame between December 13 and January 18. We lean towards adopting the clear temporal cut-off date of December 13, 2023, due to the constitutionally unprotected, beyond the scope of power, articulated by the Minister of Justice, purpose of using the challenged provisions,” Nawacki said.

Przyłębska Tribunal… Grills Neo-KRS

However, the judges adjudicating the case asked a series of questions to the neo-KRS applicants. They were particularly concerned about why only two paragraphs were challenged.

“Why did you not challenge the entire procedure in Article 27? The application only challenges fragments, elements, bricks of this procedure,” asked Krystyna Pawłowicz.

Bogdan Święczkowski pointed out additional provisions of Article 27, adding comments that “they beg to be challenged.”

“The National Council of the Judiciary considered challenging the broader scope of this dismissal procedure, including paragraph 3 of Article 27 of the Act on the Organization of Common Courts. Analytical work was also done towards challenging the entire model, which nevertheless gives the Minister of Justice the competence to initiate this procedure and effectively dismiss,” said Anna Dalkowska.

Why then did the neo-KRS file a limited application?

Dalkowska explained: “Applications take a long time to write. The application regarding the regulation, which was considered on May 16, was written by me immediately after the regulation was published in the Journal of Laws, for three days, including nights. So, that’s how it looks more or less in terms of the time spent.”

What Next?

The Przyłębska Tribunal did not issue a judgment and adjourned the hearing until July 25, 2024, suggesting that the Tribunal wanted to give the KRS time to supplement the application. This is what happened.

On June 28, the Council announced that it had adopted a resolution to supplement the application. Additionally, paragraphs 1, 2, 3, 4, 6, and 7 of Article 27 of the Act on the Organization of Common Courts were challenged. This includes the entire dismissal procedure, from the grounds for dismissal (e.g., gross or persistent failure to perform official duties; when performing the function is incompatible with the good of the judiciary), the possibility of suspending a president under procedure, to the possibility of dismissing presidents without consulting the board if the president resigns.

Regardless of the course and outcome of the hearing scheduled for July 25, it is almost certain that the judgment issued by the CT will not be published in the Journal of Laws. To date, no judgment issued by the Przyłębska Tribunal after March 6, 2024, has been published, following the Sejm’s resolution on the Tribunal’s rectification.

This text by Dominika Sitnicka appeared in OKO.press on July 1, 2024.

https://oko.press/tk-instruuje-jak-skuteczniej-zaskarzyc-zmiany-bodnara