The position of the judges was published in Polish on the 14th of December 2022.

POSITION OF THE MANAGEMENT BOARD OF THE NATIONAL ASSOCIATION OF ADMINISTRATIVE COURT JUDGES OF 14 DECEMBER 2022 REGARDING THE BILL AMENDING THE ACT ON THE SUPREME COURT AND OTHER ACTS

We negatively assess the member’s bill on the amendments to the Act on the Supreme Court (Sejm form 2870), which is intended to implement the “milestones” required for releasing the funds for the National Recovery Plan, because:

– it was once again submitted as a member’s bill in order to bypass public consultations and was immediately sent to the first reading, even though it addresses important constitutional issues; 

– it provides, for a 14-day vacatio legis with such important changes; 

– it ignores the separateness of the ordinary courts and the administrative courts arising from Article 175, para. 1 of the Constitution of the Republic of Poland and the cognition of the Supreme Administrative Court specified in Article 184 of the Constitution; 

– it does not take into account the fact that, even in the Supreme Administrative Court, approximately 30% of judges are judges appointed on the motion of the neo-NCJ, which, if these judges are appointed to the bench, can lead to a breach of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms; 

– it extends the statute of limitations for disciplinary offences with respect to disciplinary offences already committed and pending (in the transitional provisions); 

– it still leaves the offence of refusal to administer justice among the disciplinary offences, which can be interpreted very broadly; 

– the President of the Republic of Poland still has the right to appoint an extraordinary disciplinary commissioner with extensive powers to initiate and continue to handle disciplinary proceedings, while the Minister of Justice still has the right to appoint a disciplinary commissioner for ordinary court judges, i.e. it leaves the executive with a significant influence over the ability to initiate disciplinary proceedings against “unruly” judges and create a chilling effect, even if the case is not ultimately referred to a disciplinary court; 

– it will extend disciplinary proceedings by not allowing the time needed for the Supreme Administrative Court to organisationally prepare for hearing disciplinary cases and conducting independence tests through the introduction of new provisions with a 14-day vacatio legis. 

While slightly changing the scope of disciplinary offences and increasing the possibilities of requesting a test of independence, including by the members of the adjudicating panel, this bill does not simultaneously provide for any changes in the appointment of the National Council of the Judiciary and therefore does not remove the fundamental reason for the breach of the rule of law from the legal order by not guaranteeing the right to an independent and impartial court.