The first of them is a governmental draft act amending the Act on the National Council of the Judiciary and certain other acts (Paper No. 1423) and the second one is an act amending the Law on the system of common courts and certain other acts (Paper No. 1491) proposed by the members of the Sejm. Both draft acts are aimed at introducing profound systemic changes in the field of the judiciary and at weakening the power of this branch in comparison to the legislative and executive branches. Adoption thereof may mean not only the abolishment of separation and balance of powers, as well as separateness and independence of the judiciary, but also the weakened efficiency of a basic means to protect individual rights and freedoms, namely the right to be heard. In fact, the draft acts analysed constitute attempts to change constitutional provisions regarding the judiciary by means that are not envisaged in the Constitution.

In respect of the draft act amending the Act on the National Council of the Judiciary and certain other acts (Paper No. 1423), the Board of the Faculty of Law and Administration at the Jagiellonian University, to the extent covered by the analysis, expresses the following position:

1. The proposed amendments to the Act on the National Council of the Judiciary are aimed at ensuring that the parliamentary majority will have a decisive influence on the composition and functioning of the body which guards the independence of courts and judges. The removal of 15 members of the National Council of the Judiciary representing the judicial environment 30 days after the Act enters into force, which is prior to the expiry of their terms of office, infringes Article 187(3) of the Constitution, which provides for the guaranteed 4-year term of office. The selection of new judges to sit in the National Council of the Judiciary by the Sejm from among candidates proposed by the Presidium of the Sejm or a group of 50 members of the Sejm will deprive the judicial environment of their representatives in the body. The solution will at the same time infringe Article 187(1)(3) of the Constitution, pursuant to which the Sejm is entitled to select only four members of the National Council of the Judiciary and only from among members of the Sejm.

2. The adoption of the proposed amendments will prevent the National Council of the Judiciary from performing its function entrusted to it by Article 186(1) of the Constitution. It is impossible for a body appointed almost entirely by politicians to guard the independence of courts and judges. This will be the case in the National Council of the Judiciary after the proposed amendments enter into force, since 23 out of 25 members will be selected by the executive or the legislative power. Additionally, the voice of politicians in the National Council of the Judiciary will be strengthened by the proposed division of the body into two separate bodies, namely the First and the Second Assembly of the Council. In the First Assembly, eight out of ten seats will be held by politicians who, therefore, will be able to block candidates for the position of judges who were assessed positively by the Second Assembly of the Council composed exclusively of judges. Therefore, the two bodies, which are not referred to in the Constitution, will take over the competence of the National Council of the Judiciary, which is currently a constitutional body of a uniform structure.

3. The planned organisational changes within the National Council of the Judiciary infringe also Article 187(2) of the Constitution. Contrary to the wording of this provision, two deputy chairpersons will not be appointed by the National Council of the Judiciary from among all its members, but each Assembly of the Council will appoint its deputy chairperson from among the members sitting in this particular body.

In respect of the draft act amending the Law on the system of common courts and certain other acts (Paper No. 1491), the Board of the Faculty of Law and Administration at the Jagiellonian University, to the extent covered by the analysis, expresses the following position:

1. The proposed amendments to the Law on the system of common courts and certain other acts allow the Minister of Justice to take over the control over courts, also within the scope directly related to hearing cases and issuing decisions. The draft act envisages that the Minister of Justice will be entitled to dismiss the presidents and vice-presidents of all courts within six months after the Act enters into force without stating any reasons therefor and without consulting the National Council of the Judiciary in this regard, while the presidents of courts appointed by the Minister will be entitled to dismiss the heads of divisions, their deputies, the heads of sections and inspecting judges. The total and unjustified replacement of court management staff, which will not be subject to any control whatsoever, may paralyse the functioning of the judiciary.

2. The separateness and independence of the judiciary is also undermined by the competence entrusted to the Minister of Justice that consists in the Minister’s right to dismiss any president and vice-president of a court at any time, on the basis of generally formulated and evaluative premises, also when the National Council of the Judiciary issues a negative opinion regarding the dismissal of a president or a vice-president of a court.

3. The draft act envisages that the Minister of Justice will be entitled to appoint for the position of court presidents and vice-presidents judges who have been serving in courts of lower instance, even when they are not supported by the judicial environment or the National Council of the Judiciary. This solution will allow the Minister of Justice to promote a judge of a regional court to the position of the president of a court of appeal, even if the judge has never heard any case in any court of appeal and is not acquainted with its functioning.

4. Lowering the requirements to be fulfilled by people seeking the appointment for the position of a judge in a court of appeal will be destructive for the good of the judiciary and for the citizens’ right to have their case duly heard by a court (Article 45(1) of the Constitution). In accordance with the draft act, the position of a judge of a court of appeal may be offered to a judge or a prosecutor of the lowest rank, namely of a district court, garrison military court or district prosecutor’s office, and therefore to a person who is not duly prepared to hear cases in a court of the highest rank within the structure of common courts.

5. Serious constitutional doubts are also raised by the solution which makes the possibility of continuing the judicial service by a person who reached the retirement age, but whose health allows them to perform their duties, dependent on a consent of the Minister of Justice. The draft act does not specify any grounds for refusing such consent and it does not provide for any effective means of appeal against the refusal.

6. The repressive and automatic nature of sanctions applied for failure to undergo medical examination by a judge, consisting in lowering their remuneration or salary to the amount of the lowest employment and support allowance should also be criticised. Remuneration in this amount may not be adequate given the dignity of a position of a judge and the scope of their duties, and therefore it may be inconsistent with Article 178(2) of the Constitution.

7. A significant extension of information covered by the financial disclosure statement which is disclosed by a judge in the Public Information Bulletin is an example of an excessive intervention of the state in the privacy of a judge and his or her spouse with whom the judge has joint property, and given the specific nature of the occupation, in particular in the case of judges hearing criminal cases, this may be a threat to life and health of such persons. Such intervention in privacy is at the same time disproportionate to the assumed objective of the regulations since the achievement of the objective stated, namely the identification of illegal sources of income of a judge, is possible with the use of currently existing legal instruments. Financial disclosure statements of judges are already analysed by the board of courts of appeal and tax authorities, and both bodies have adequate means at their disposal to act in the event of identifying any irregularities.

8. The last of the analysed solutions which raises serious constitutional doubts is granting the Minister of Justice a right to request case files in three situations specified in the draft act. The earlier case-law of the Constitutional Tribunal (Case U 9/13 and Kp 1/15) clearly shows that such competence exceeds the scope of external supervision over the administrative functioning of courts by intervening in the essence of judicial power and judicial independence. This solution breaches also the right to privacy and protection of personal data of the parties to judicial proceedings and it gives the Minister of Justice the possibility of collecting information about citizens which is not necessary in a democratic state respecting the rule of law.

Therefore, both draft acts analysed include solutions that are in conflict with the Constitution and the earlier case-law of the Constitutional Tribunal. If adopted in their current shape, they will endanger the correct functioning of a democratic rule-of-law state.

The text was first published on the site: Wydział Prawa i Administracji Uniwersytetu Jagiellońskiego