ALMOST two months have passed since the Senate resolution regarding the Act on the National Council of the Judiciary (NCJ) has been pending for consideration. The government bill, which was adopted by the Sejm back in April 2024, proposes a profound reform of the Council, whereby the judicial members would be elected by judges rather than parliamentarians, as has been the case since 2018.

The bill also proposed that so-called neo-judges, i.e., individuals who participated in the procedures before the NCJ formed after 2018—whose politicization has been repeatedly confirmed by both Polish and international court rulings—would be deprived of the passive right to stand for election in the first elections to the new NCJ. However, during the Senate’s work on the bill, an amendment was submitted by the Ministry of Justice, which restored the neo-judges’ right to stand for election. The reason for this amendment was an opinion from the Venice Commission, which expressed doubts about such an exclusion. In the background were also discussions between the Ministry and President Andrzej Duda regarding his potential support for such a bill.

The Senate’s amendment caused significant controversy within the legal community. Judicial and prosecutorial organizations, including Iustitia, unequivocally condemned it and called on the Sejm to reject it. However, several other legal organizations, including the Helsinki Foundation for Human Rights, issued statements supporting the Senate’s move.

This occurred in mid-May.

Nine opinions were submitted.

Although the initial schedule assumed that the Justice and Human Rights Committee and then the Sejm would promptly address the Senate’s resolution, this did not happen. Due to the controversy surrounding the amendment, the then-chairperson of the Committee, Kamila Gasiuk-Pihowicz, commissioned opinions from external experts and postponed the consideration of the Senate’s resolution.

In June, nine opinions were submitted to the Committee, and its meeting to debate the Senate’s amendments is scheduled for Thursday, July 11, 2024.

OKO.press has obtained the contents of the nine opinions commissioned by the Justice and Human Rights Committee. Our analysis shows that two opinions unequivocally support the Senate amendment, indicating that it is not only constitutional but also removes provisions that violated the constitution. Five other expert opinions support the exclusion of neo-judges from the procedure in varying degrees of assertiveness. In the remaining two opinions, the lawyers argue that both positions present equally valid arguments.

**Positive Opinions: The Amendment Removes an Unconstitutional Provision**

Professor Ryszard Piotrowski, in his analysis, considers the Senate amendment justified as it removes a restriction that, in his view, was unconstitutional. He views the exclusion of neo-judges from elections to the NCJ as a repressive measure devoid of any individualization. In his opinion, judges cannot be punished or restricted from holding office simply because they participated in a procedure before a body that was not formally declared illegal.

Similarly, Dr. Hab. Jacek Zaleśny from the University of Warsaw stated that with its amendment, the Senate removed a provision inconsistent with the Constitution, thereby correcting the effects of the Sejm’s unconstitutional legislative activity.

“The legal status of a judge does not depend on the date of appointment. Regardless of whether a person was appointed as a judge in 1982, 1998, 2008, or 2020, their legal status is the same. Under the Constitution, the legal status of a judge does not depend on the legal basis for their appointment,” reads the opinion.

Differentiating judges based on the legal basis for their appointment violates several constitutional provisions, including the principle of equality before the law and equal treatment by public authorities, as well as equal access to public service for individuals with full public rights. “An integral part of the constitutional legal order is the presumption of the constitutionality of a statute,” argues Zaleśny. He adds that it is the Constitutional Tribunal, not the Sejm, that decides whether a law is constitutional.

Dr. Hab. Zaleśny concludes that differentiating the eligibility of judges to stand for the NCJ based on their judicial experience would be constitutionally permissible.

**Critical Opinions: The Senate Risks Undermining the New NCJ**

Professor Jacek Potulski from the University of Gdańsk notes that the exclusion of neo-judges from the procedure may raise “constitutional controversies,” but he himself considers such a solution justified due to the episodic nature of the tool and the potential conflict of interest among neo-judges who could evaluate the appointments of the neo-NCJ. Although “the amendment proposed by the Senate of the Republic of Poland could reduce constitutional controversies, [it] could practically lead to protests and a lack of true legitimacy of the newly created National Council of the Judiciary not only within the judicial community but also on a broader level,” argues Professor Potulski.

The lawyer points out that uncertainties surrounding the status of judges sow uncertainty regarding the legal security of citizens and economic transactions. “Considering the discussed amendment, one might consider a solution allowing the participation of judges mentioned in Article 2, Section 2 of the bill in the electoral process, including the passive right to stand for election to the newly created National Council of the Judiciary, taking into account the judge’s status before the promotion made within the faulty procedure. In other words, a judge who was promoted from the District Court to the Court of Appeal through the neo-NCJ procedure should be treated as a District Court judge within the electoral procedure,” proposes Professor Potulski.

Dr. Hab. Lech Jamróz from the Department of Constitutional Law at the University of Białystok criticizes the Senate amendment. He believes that the right to be elected to the NCJ should not extend to judges whose status may be questioned due to the involvement of an unauthorized body in their appointment process, namely the NCJ formed by the 2017 Act.

According to Jamróz, until the doubts surrounding their status are resolved, they should refrain from holding additional functions, both within the courts and in bodies unrelated to the administration of justice, except for those necessary for the proper functioning of the judiciary.

There are no regulations or rulings that undermine the independence of all judges selected through such a procedure. However, as Jamróz points out, individuals participating in this procedure were aware of its flaws, knew of numerous calls from legal authorities not to participate in these contests, and therefore had to reckon with the risk that their status would eventually be challenged.

The need for NCJ reform is urgent, but the involvement of judges whose status may be questioned could affect the status of the new Council.

In his opinion, lawyer Dr. Grzegorz Piasecki also raises the argument that the questioned status of NCJ members could lead to the questioning of the entire Council. “If the Council were to conduct or participate in proceedings aimed at verifying the status of the discussed class of individuals, the composition of the NCJ, following the principle of nemo iudex in causa sua, cannot be formed with the participation of individuals subject to verification.”

Dr. Piasecki emphasizes that the status of judges is not automatically denied to such individuals, but their exclusion is justified by the need to ensure the success of the entire NCJ reform. Referring to the Venice Commission’s opinion, the lawyer suggests that the solution could be to tie the passive right to stand for election to the judge’s judicial experience.

Professor Artur K. Modrzejewski from the Department of Administrative Law and Procedure at the Faculty of Law at the University of Białystok considers the exclusion of neo-judges from candidacy to the new NCJ justified. “It is about eliminating any legal doubts regarding the competence of the newly formed NCJ and the possible later undermining of the resolutions adopted by it,” reads the opinion.

In his view, “the principle of proportionality is not violated here, as these judges have only their passive right to stand for election limited in the first elections, not in subsequent ones. Moreover, the legislator did not unequivocally state that after an individual assessment of each judge by the new NCJ, the passive right to stand for election could not be ‘restored’ in the future.”

Professor Anna Rakowska from the Department of Constitutional Law at the Faculty of Law and Administration at the University of Łódź upheld her previously expressed opinion that the exclusion of neo-judges from the right to stand for election in the first NCJ elections “is justified by the protection of constitutional values and European standards and meets the requirements of proportionality.” The lawyer refers to the Venice Commission’s opinion, arguing that it did not unequivocally negatively assess the exclusion in that act but only asked to examine its proportionality, noting that it would cover 20-30% of judges. And precisely because there are so many neo-judges, their right should be limited—it is almost certain that some would find their way into the NCJ.

“Their presence in this body, in turn, would at least complicate (if not thwart) the restoration of constitutional standards in the judiciary. Judges who assumed the judicial office through a faulty procedure cannot co-decide on access to the profession, promotions, or retirement status of other judges. The regulation adopted in Article 2, Section 2 of the Act is useful, as it effectively eliminates from the constitutional body, which is the NCJ and which should be ‘impeccable,’ judges appointed in clear violation of the fundamental principle of the nomination procedure,” reads the opinion.

**Both Sides Have Valid Points**

Professor Krzysztof Woźniewski from the Faculty of Law and Administration at the University of Gdańsk understands the need and arguments for excluding neo-judges, but he also strongly emphasizes doubts about the constitutionality of such a solution. This is because neo-judges participated in a procedure before a body whose constitutionality was not formally overturned. The professor also refers to the Venice Commission’s opinion, which lists that the exclusion would cover as many as 2-3 thousand judges.

In his opinion, it is impossible to clearly conclude which solution is better. “It can only be stated that both proposed solutions have their strong justifications and difficult-to-escape risks. Therefore, the final choice, in my opinion, belongs to the political actors, while the participants in the dispute are ‘obliged’ to a certain self-restraint and respect for the opposing arguments,” argues Professor Woźniewski.

The other opinion referring to the justifications of both sides was prepared by lawyer Anna Sylwestrzak from the Department of Constitutional Law and Political Institutions at the Faculty of Law and Administration at the University of Gdańsk. The lawyer presented the arguments of both sides but did not clearly indicate which solution is constitutionally valid.

**The Ball Is in the Sejm’s Court**

The Sejm’s consideration of the Senate’s resolution on the Act on the National Council of the Judiciary will take place on Thursday, July 11, 2024. The recommendations of the Justice and Human Rights Committee will be crucial in the vote.

For the bill to be considered by the president, the Senate’s resolution must be rejected by an absolute majority of votes cast in the presence of at least half the statutory number of Sejm members (i.e., at least 231).

Both sides in this debate make compelling arguments. The decision will have significant implications for the future of the judiciary and the rule of law in Poland.

The text by Dominika Sitnicka was published in OKO.press on July 5.

https://oko.press/poprawka-senat-krs-opinie