The reforms of the judiciary in Poland after 2015 are usually explained as an attack on the rule of law and the erosion of democracy. Meanwhile, it can be viewed from the other side as the final farewell to the circular political contract, on the basis of which the so-called third power was removed from the process of constitutional transformation.
The issue of judiciary system reforms in Polish political debates
The reforms of the judiciary system have been the recurring topic of the Polish public discourse at least since 1990. As widely noted, the post-1989 transformation did not indeed cover the organization of courts. Paradoxically, the majority of reforms were implemented in the declining period of the communist era (in the 1980s), and these solutions were subsequently repeated in new legal regulations without any significant modifications. The majority of newly introduced institutions, such as the Constitutional Court (Trybunał Konstytucyjny), were perceived as solutions borrowed from the Western countries, and consequently proper and correct, even though the communist authorities, while implementing them, adopted them to the circumstances of the socialist state. On top of that, a large part of such syncretic institutions taken over from the democratic West, but adjusted to the socialist reality, were mandated by the upcoming erosion of the Communist system. The public viewed those institutions, among others, as contributing to the ultimate collapse of communism and the launch of democratic reforms. It is a particular paradox as it is already known today that some of those institutions were designed in an attempt to save socialism under the façade of democratic solutions. For this reason, some people openly state that the introduction of judicial institutions associated with democracy and with the rule of law gave the democratic façade to the third branch of power, even though no reforms were carried out to actually make the rule of law real. Shortly after, at the constitutional level, the ‘state of law’ principle was established, which, without any recognition of ‘transition justice’, covered the existing legal system with democratic rules, although in many aspects the system was of totalitarian origin. It is noted that in particular the Constitutional Court (established in 1982) and the National Council of the Judiciary (established in 1989) served as a democratic screen to cover the undemocratic reality. As a consequence, on the brink of radical constitutional reforms, the third power was, in fact, invisible, while the constitutional debate was focused on entirely different issues (such as the position of the President, two chambers of the Parliament, the status of the Prime Minister within the Government, relations between the Government and the Parliament, human rights and relations between the State and the Church). The outcome was the assumption that the new Constitution, finally adopted in 1997, petrified the position of the judiciary with only minor corrections being made (such as recognizing the Constitutional Court as a judicial body and granting the Constitutional Court new competences, such as adjudicating on constitutional remedy). Other key solutions related to the judiciary remained practically unchanged, while the changes of 1997 were of limited scope (e.g., administrative court proceedings became two-instance proceedings). Nonetheless, voices advocating for the real reform of the judiciary were still strong.
These voices were even louder in response to judicial decisions on communist crimes that were found outrageous by the public (i.e., in the cases concerning the massacre of mine workers in the Wujek Coal Mine, the declaration of Martial Law, the killing of priest Jerzy Popiełuszko). At the same time, among others thanks to the activity of the Institute of National Remembrance, the public started to receive information on the so-called judicial crimes, namely the crimes of the communism period in which approx. 50,000 people linked to independence conspiracy were murdered in the name of law. The negative image of judges and courts was additionally exacerbated by disclosed pathologies, such as nepotism, cronyism or corruption. Various informal connections linking the environment of judges, politicians, and businessmen were also disclosed (for instance, the network in Gdańsk, which even became an inspiration for movies).
This image of the judicial power only strengthened the calls for authentic reforms. Such proposals were heard both from the left and from the right wing. Without such reforms, as Magdalena Ogórek, who was a candidate of the left wing for the President in 2015, pointed out, Poland would be only the state of lawyers and not the state of law. The need for change was expressed earlier in political programs of such parties as the Law and Justice and the Civic Platform. Grassroot, spontaneous citizens’ initiatives appeared as well, proposing quite radical judiciary reforms (for instance, Association of Victims of Judicial Bodies). The large majority of proposed reforms boiled down to the reorganization of three important aspects, i.e., the Constitutional Court, the National Council of the Judiciary, and the disciplinary liability of judges.
As for the Constitutional Court, the debate was held mainly in academic circles, which argued the former was a remnant of socialism and that it was the mechanism of selecting judges that should be changed above all, and that it was necessary to amend the operating mode of the Court, so that it could protect the rights and freedoms of individuals more effectively.
The National Council of the Judiciary (KRS), in turn, sparked interest not only among politicians but judges themselves. Andrzej Rzepliński, the former president of the Constitutional Court, stated expressly that it was impossible to perform a serious judiciary reform in Poland. In his opinion, the KRS is a corporate set of connections, selected in a non-transparent manner and representing not judges but judicial groups of interest. A meaningful proof is the opinion expressed by A. Rzepliński: If we do not rip the National Council of the Judiciary out from judges, nothing can be done with the Polish legal system. It is worth noting that also political parties, including the Civic Platform, believed that the reform of the KRS was necessary. The Civic Platform directly stated in its program that the reform of the KRS was indispensable as the success of any change in the judiciary depended on it. The leader of the Civil Platform already in 2007 pointed out that “the thorough reform of the National Council of the Judiciary should be carried out. It should cease to be a corporate body of judges and it should become a guardian of the citizens’ right to seek justice. The members of the National Council of the Judiciary should be selected by the Sejm from among candidates proposed by the senates of higher education institutions. They should be persons of good character, with higher education and significant professional achievements. Introducing to the Council people setting a moral and professional example from outside the judicial environment is indispensable, not only for the purpose of making the Council the representative of the interests of citizens who are clients of courts but also for the purpose of making it the effective institution ensuring review of and control over the process of selecting and nominating judges who exercise a significant part of power within the state. Currently, this process fails to satisfy the requirements of democratic order as in practice judges are chosen from among the circle of corporate co-optation closed to citizens.”
The reforms of judges’ disciplinary liability mechanisms were also proposed multiple times, for instance, in response to social outrage and to the conduct of judges that infringed the dignity and seriousness of their office, often in breach of law, but were covered behind corporate liability mechanisms. The proposal of disciplinary liability model reform, including the establishment of the Disciplinary Chamber within the Supreme Court, was presented among others by the First President of the Supreme Court Małgorzata Gersdorf. She also shares the opinion that disciplinary liability in Poland was not enforced effectively, which translated into lack of trust towards judges, while such trust is a key value on which the judiciary must rely, not least that this branch of power is excluded from the mechanisms of democratic elections.
It should be emphasized that even today the representatives of the majority of political environments do not question the need to carry out reforms of the system of courts and judges. The representatives of almost all parties agree that courts in Poland require reform- atory actions covering various aspects of the functioning of the judiciary. Politicians voicing their opinions often state, however, that the direction of reforms introduced after 2015 is correct, but their largest flaw is that they were introduced by the right-wing government (understood as orthodox and extreme in its positions) and that they excessively distorted the existing connections and interests within the judiciary.
Former Poland’s Supreme Court Chief Malgorzata Gersdorf (center), former President of the Polish Constitutional Tribunal Andrzej Rzepliński (right), and former Chief Justice of the Supreme Court Adam Strzembosz (left) attend the public hearing on the Act on the Supreme Court. Warsaw, Poland, July 17, 2020.
The context of changes in the Constitutional Court
The dispute of legal and political nature that started in the autumn of 2015 in Poland in reference to the Constitutional Court had complex roots. The point of departure, however, should be that the Polish Constitutional Court is an institution of two contradictory faces. On the one hand, it is commonly acknowledged that it is an institution that facilitated a slow systemic transformation and transition from authoritarianism to democracy, but on the other hand, it is perceived as an institution established by communist authorities, which was supposed to maintain, to some extent, the previous status quo. It is visible to this day in the rule unknown in other parts of Europe, according to which the composition of the Court is decided on entirely by the Sejm (the lower house of the bicameral parliament of Poland). In other countries, similar powers in this regard are divided between various State bodies, so that none could accumulate them.
The fact that all 15 judges of the Constitutional Court in Poland are selected by the Sejm has been the subject of objections for a long time. Therefore, for the last three decades the largest number of proposals related to the reform of the constitutional system concerned the Constitutional Court, including the mechanism of selecting judges. More than a decade ago, the representatives of today’s opposition expressed, otherwise correct views, that only the regular alternation of power protects the Constitutional Court against the monopoly of a single political party in the shaping of the Court’s composition. At the same time, they emphasized that without the regular alternation nothing can save the Constitutional Court from the domination of judges selected by one political side. For this reason, the Law and Justice party (PiS), among others, so as other parties, tabled a number of proposals to reform the Constitutional Court. In the course of political practice, a custom was formed that was supposed to ensure the diversity of Constitutional Court judges. As early as in the 1990s, an unwritten rule was adopted under which if the term of office of a Constitutional Court judge (lasting nine years) expires around the turn of the new parliamentary term and it is probable that the newly appointed judges would commence their service already in the new parliamentary term, the ‘old’ parliament, even without any legal restrictions in this regard, should refrain from selecting new judges so that the new judges may be selected by the new parliament. This rule was respected in Poland until 2015.
The situation changed drastically in 2015 and the context of this change is complex. Firstly, it should be pointed out that the then Sejm worked for two years on the new Act on the Constitutional Court proposed by the then President of the Republic of Poland Bronisław Komorowski (representing the Civic Platform – PO). Parliamentary work on the Act was slow and the Sejm showed no significant interest in the draft (proposed in the summer of 2013). Secondly, in the spring of 2015, presidential elections took place and the most serious competitors for the office were the holder of the office – Bronisław Komorowski (PO) and Andrzej Duda (PiS). Ultimately, the elections were won by Andrzej Duda, which came as a large surprise since earlier polls predicted the win of Bronisław Komorowski. Thirdly, parliamentary elections were scheduled for the autumn of 2015 and the then ruling party (PO) initially expected another win, which would be third in a row. However, the win of the PiS candidate in the presidential elections was a sign of a swing in the mood of voters and indicated that the victory of PiS in the elections to the Sejm was increasingly probable. In these circumstances, the draft of the new Act on the Constitutional Court, which had raised no interest so far, became a key matter and its swift adoption became a priority for President Bronisław Komorowski and the PO.
This is why legislative work that had been in progress for two years gained momentum and the Sejm adopted the new Act on the Constitutional Court in June 2015. The pace of work was motivated by the fact that in the autumn of 2015 the term of office of five out of fifteen judges of the Constitutional Court was to expire. The then ruling authorities made it their objective to fill all posts, even though it was clear that the term of office of two out of five judges would expire already in the new parliamentary term (in the case of the remaining three judges it was disputable due to constitutional methods of counting the course of their terms of office). Importantly, however, all five new judges were to commence their terms of office already after the parliamentary elections. Being aware of that fact, the PO formed a coalition with political parties present in the parliament at that time and distributed the mandates of constitutional judges in such a manner that three of them were taken by the PO, while two by other parties (the Democratic Left Alliance – SLD and the Polish People’s Party – PSL). At the same time, the PO stated already at that time that the three judges (recommended by the PO, note well) had been selected legally, while the two remaining judicial mandates (which were of less interest to the PO as this did not concern candidates recommended by this party) may be disputed. Therefore, an imposed narrative was that if there is any irregularity, it is an irregularity solely concerning the two mandates, while the terms of office of the other three judges (recommended by the PO) were supposed to be absolutely secured. It should be noted that the then largest opposition party, PiS, did not take part in this act of dividing the spoils, an argument being that in case of the PiS’s win of parliamentary elections, this party would be able to choose ‘its own’ constitutional judges as further vacancies would become available.
What is worth noticing is that the terms of office of all five judges were to expire already after the parliamentary elections and it was a custom that in such circumstances the ‘old’ parliament does not select new constitutional judges but lets the newly elected parliament do so. The new Sejm needed to face new circumstances. It is also important that President Andrzej Duda, who took over the presidential office in August 2015, did not accept the oath of the five new judges of the Constitutional Court selected by the previous parliament. Meanwhile, according to the Constitution, the act of taking the oath before the President is a condition necessary to take the post of a judge of the Constitutional Court. Persons selected to be the judges of the Constitutional Court are not such judges without this act. This is ascertained by the provisions of the Act on the Constitutional Court, which distinguished between the “judge of the Constitutional Court” (meaning a person selected by the Sejm who took an oath before the President) and the “person selected to be a judge of the Constitutional Court”, meaning a person who was selected by the Sejm but did not take an oath before the President of the Republic of Poland. It should be added that the legal commentators in the area of constitutional law agreed that although their involvement was different, both entities, i.e., the Sejm and the President, were involved in the procedure of selecting constitutional judges, which served as a safeguard of the ‘cooperation of powers’ principle (provided for in the Preamble to the Constitution of 1997). It was also argued that the act of taking an oath before the President by persons selected to be judges of the Constitutional Courts was analogical to the act of appointments made by the President in the case of the judges of common courts and administrative courts, which was supposed to strengthen the status of the judges of the Constitutional Court and make the Constitutional Court more ‘judicial’. The point worth adding is that the case-law confirmed that the President could decide not to appoint a judge and such act was a discretionary decision of the head of state.
In such circumstances, the ‘new’ Sejm of the 7th parliamentary term, decided that upon the commencement of the new parliamentary term the selection of the five judges of the Constitutional Court was not effective. The argument was that the rule of discontinuation had been in force in Poland for 100 years and according to that rule any initiated but not closed procedures are discontinued with the commencement of the new parliamentary term of office, and therefore, they are not continued and considered non-existing. Importantly, this rule applies to any type of procedure, also involving parties external to the Sejm, such as the President (legislative veto) or the Constitutional Court (request for the examination of the legality of a statutory act). Therefore, following the assumption that the principle of discontinuation in all domains was shaped by parliamentary practice, the Sejm assumed that it should be equally applied to the procedure of selecting the judges of the Constitutional Court. The principle of discontinuation in reference to the selection of constitutional judges was applied for the first time, but it should be noted that this is how this principle is shaped in Poland. Debatable cases are resolved by the practice of the Sejm and this view is strongly emphasized by the Polish legal commentators, while the Constitutional Court itself believes that it is the Sejm who is the owner of the principle of discontinuation.
Reforms of the National Council of the Judiciary
The National Council of the Judiciary is one of three new constitutional institutions introduced to the Polish legal system in 1989 as a result of political arrangements made during the Round Table Talks. The other two institutions, which were supposed to be established, or re-established, to speak more precisely in Polish conditions, were the President of the Republic of Poland and the Senate. All three institutions were no coincidence, and their establishment was accompanied by two narratives. One of them was official in its nature, while the other one was unofficial and hid the real intentions behind the introduction of the President, the Senate and the National Council of the Judiciary to the Constitution. According to the official narrative, the President and the Senate were supposed to bring back the native traditions of the legal system and recollect the system of the pre-war Second Republic of Poland, which for many Polish people as an independent state was the opposite of the Polish People’s Republic dependent on the Soviet Union. The President of the Republic of Poland was, therefore, a head of state in lieu of the earlier Council of State, which was a sort of collective presidential body based on the Soviet example. The Senate, in turn, was supposed to be a price to pay for the contractual elections to the Sejm, with the guaranteed participation of communists, who believed that they have the majority in the Sejm ensured. Finally, the National Council of the Judiciary was supposed to be a reference to examples set by democratic Western constitutionalism by guaranteeing the independence of judges and courts. According to the above narrative, all three institutions gave legitimacy to the transformation of 1989. The President and the Senate were references to native and positive traditions of the Polish legal system, while the National Council of the Judiciary showed a spirit of democratic Western constitutionalism, which was supposed to be present in all reforms of 1989.
The second narrative, however, was quite different. In this discourse, the President of the Republic of Poland was supposed to be the guardian of the Round Table arrangements who would safeguard the agreement made (in Western literature this role would be described as the role of a ‘watchdog’). This was shown by the fact that the leader of communists, i.e., General Wojciech Jaruzelski, was appointed in advance to become the President and he enjoyed the unlimited right to resolve the Sejm if the Sejm adopts any resolution preventing him from performing his duties. The Senate, on the other hand, was an imitation of an institution without any real instruments to take action. Its strength was based solely on free elections to this chamber and on the fact that in the course of practice it extended the scope of its competence, often against the provisions of the Constitution, legally speaking.
Finally, the National Council of the Judiciary was an institution that in a seemingly democratic manner petrified the judiciary system and prevented any effective reforms of judges and courts. This was accompanied by the belief that the environment of judges would be cleared as part of self-regulation and the National Council of the Judiciary would safeguard that. For many observers, this meant only one thing: that the third branch of power was covered by the democratic façade of the National Council of the Judiciary and this in fact prevented the reforms of the judiciary. Therefore, it is sometimes noted, not only in reference to Poland, that the quick establishment of judiciary councils in the post-communist Europe was a mistake, because it gave judges and structures transferred from authoritarianism a democratic appearance while guaranteeing the previous status quo. This approach proved extremely successful, which was confirmed by the fact that when subsequent constitutional reforms were implemented (through the adoption of the so-called Small Constitution of 1992 and the adoption of the new, full-fledged Constitution of 1997), the issues of the organization of the judiciary were virtually absent. The attention of the authors of the Constitution was focused on entirely different topics. As a result, the Constitution of the Republic of Poland of 1997 virtually petrified the solutions relating to judges and courts.
For this reason, throughout the 1990s and after the adoption of the new Constitution, the idea of judicial reform was repeatedly raised among lawyers and politicians. At the same time, it was stated that one of the key elements of the reform should be a change in the manner of choosing the members of the National Council of the Judiciary. It was assumed that in the model adopted in 1989, the Council plays a corporate role and creates a system which is focused on itself, exclusive, and of limited transparency. Critics also believed that the rule of separation and independence was in fact an excuse for avoiding reforms in the judicial sector. It was also stated that the created system excluded the judiciary from any democratic control, which manifestly contradicts the principle of separation of powers, under which each branch of power displays a certain degree of distrust towards others, which is a foundation for cooperation mechanisms, but also control mechanisms.
Pursuant to the Constitution (Article 187), the Council is a body of complex structure. It is composed of the representatives of all powers, which means that even though its role is to safeguard judicial independence, it serves as a platform of cooperation of all branches of power (which reflects the constitutional idea of cooperation among all branches of power expressed by the Polish Constitution explicitly in its preamble). It should be noted that in the Polish legal commentaries, such connection, and therefore cooperation, of all powers within the National Council of the Judiciary has always been strongly emphasized. The Constitution states that the National Council of the Judiciary is composed of a few categories of members. The first includes ex officio members, who become members of the Council as a result of exercising other functions and holding other posts. This group consists of the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court, and a person appointed by the President of the Republic of Poland (Article 187 (1)(1)). The second group is formed by the representatives of the legislature, who are elected by the Sejm and the Senate, respectively, namely four members elected by the Sejm from among deputies and two members elected by the Senate from among senators (Article 187(1) (3)).
The third and the last group of members are judicial members. Pursuant to the Constitution, the National Council of the Judiciary is composed of fifteen members selected from among the Supreme Court, common courts, administrative courts, and military courts (Article 187(1)(2)). At the same time, when defining the composition of the Council, the Constitution stipulates explicitly that the ‘organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute’ (Article 187(4)). The right to specify the ‘manner of choosing its members’ must be naturally understood as referring to the judicial members of the National Council of the Judiciary. It is because only for this group of KRS members the method of selection is not defined in the Constitution. This means that it was an explicit intention of the authors of the Constitution to entrust the legislators with the task of deciding by means of an ordinary statutory act how judicial members are to be appointed. The only condition imposed by the Constitution is that the group composed of 15 members must include judges who represent particular courts specified in the Constitution. Therefore, under the Constitution itself, the legislators were given relative freedom in determining the mechanism of selecting judicial members of the National Council of the Judiciary.
It should be noted that this group, which after 1989 was chosen within a very limited circle of judges exercising functions in courts, was the subject of major criticism. It was claimed, among others, that the solutions adopted: 1) lack clear election mechanisms; 2) promote judges who exercise functions; 3) lead to the overrepresentation of the judges of the Supreme Court; 4) lead to lack of representation of judges sitting in courts of lower instances; 5) exclude the rule of transparency of the election procedure. Before 2015 the above model was criticized universally. Representatives of involved political circles and judges themselves called for a reform. The then President of the Constitutional Court, Andrzej Rzepliński, stated that it was necessary to reform the procedure of selecting the members of the National Council of the Judiciary as the entire reform of judiciary could not be successful without it. Also, Donald Tusk, while being the leader of the Civic Platform, noted in 2007 that the National Council of the Judiciary was a key institution in terms of any changes in the judiciary. It was a common belief that the adopted manner of choosing judicial members of the Council was non-transparent, self-centered and supported petrification of existing connections.
The reform implemented in 2017 and 2018 affected only the judicial members of the Council. The so-far closed system was opened, and each judge became entitled to propose a candidate for a member of the National Council of the Judiciary. At the same time, the constitutional requirement under which the group of 15 members must include judges only was preserved. Therefore, each judge of any type of court became entitled to propose their own candidate for a member of the National Council of the Judiciary. (For the purpose of effectively proposing a candidate, one must collect a total of 25 votes of support from other judges). This solution made the procedure of proposing candidates significantly more democratic as each judge was given the right to be potentially involved in the procedure of selecting members of the Council (although it was their decision whether to exercise this right or not). The second part of the reform was an option of judicial members of the Council being proposed by citizens (in the number of 2,000). This solution was considered necessary from the perspective of democratic legitimacy, but also due to the need to involve a social element in the functioning of courts, which had been postulated for a long time. Finally, the third element was to grant the Sejm the power to select judicial members of the Council (based on proposals made by judges and citizens). It was decided that this procedure of selecting judicial members would give the Council the democratic legitimacy needed, and it would ensure full transparency, which had not been guaranteed earlier at all.
As a result, the change concerning judicial members of the National Council of the Judiciary was as follows: earlier 15 judges were selected by the judges of particular courts, while under new legislation candidates for the members of the Council are proposed by 25 judges (or 2,000 citizens), with the condition that only a judge may be a candidate. The selection itself was left to the discretion of the Sejm. This solution was considered acceptable by lawmakers as part of the right to adopt delegated legislation for the purpose of determining the manner in which members of the National Council of the Judiciary are to be chosen as mentioned in the Constitution, and the same time it was found necessary with a view to building an adequate (democratic) legitimacy of the third power.
This is how the manner of choosing the judicial part of the Council was changed, while the constitutional conditions pertaining to its composition remained respected. According to these conditions, (a) there are 15 elected judicial members of the National Council of the Judiciary; (b) this group of members must be judges; (c) these judges must represent specific courts or types of courts. The new solution was justified in the following manner: (a) the Council is not a body of judicial self-government, and, therefore, there is no reason to state that judges must be chosen by judges only; (b) the constitutional requirements under which members of the Council must be judges of specific courts (named by the Constitution) is fully respected; (c) the adopted mechanism of selecting judges (from among candidates proposed by judges) supports the systemic idea behind the National Council of the Judiciary better as the Council is supposed to reflect the idea of cooperation among different branches of power in order to perform its basic role better and more effectively, i.e., to safeguard the independence of courts and judges (cf. Article 186(1)); (d) granting citizens the right to propose candidates (who must be judges) makes the Council and the entire judicial power (represented by the Council) significantly more democratic.
The essence of the corrective act of 20 December 2019
The Act Amending the Act on the System of Common Courts, the Act on the Supreme Court and Certain Other Acts, adopted by the Sejm on December 20, 2019 (hereinafter referred to as the Improving Act), entered into force on February 14, 2020 and implemented the judgment of the Court of Justice of the European Union of November 19, 2019, C-585/18, C-624/18 and C-625/18 (hereinafter referred to as the CJEU judgment of November 19, 2019), in which it was confirmed that the appointment of judges by the President of the Republic of Poland and their investiture status could not be subject to judicial review. As the Act implements the CJEU judgment, it is referred to as a corrective act or an ordering act.
The CJEU judgment of November 19, 2019 provides no ground to question, challenge or invalidate the status of judges appointed by the President of the Republic of Poland. This is a view of not only the CJEU but also the Constitutional Court and the Supreme Administrative Court (Constitutional Court judgments of: November 8, 2016, Case File No. P 126/15, 89/A/2016: June 5, 2012, Case File No. K 18/09; decision of the Constitutional Court of June 19, 2012, Case File No. SK 37/08; decision of the Supreme Administrative Court of: October 9, 2012, Case File No. I OSK 1883/12; October 9, 2012, Case File No. I OSK 1874/12; December 7, 2017, Case File No. I OSK 858/17). The CJEU shaped a European standard according to which courts of EU Member States are entitled to carry out a test of judicial independence, but only in reference to a specific, individual case and based on national legislation. This means that the assessment should be made in view of legislation (including the Constitution) of the Member State. Courts and judges in Poland have no competence to question or assess whether constitutional competences enjoyed by the National Council of the Judiciary or the President of the Republic of Poland are exercised correctly or not and even more to question the legality of constitutional bodies of the state.
The standard set in the CJEU judgment was taken into account in the corrective act by emphasizing in its content applicable legal norms under which a judge is not entitled to question a judicial status of another person appointed to this office by the President of the Republic of Poland and any similar action would constitute a disciplinary fault. The Act introduces a specific mode of assessing the independence of the court and requires that judges disclose publicly certain data that may be important for the purpose of assessing the independence of the court in which they adjudicate and for the purpose of assessing the independence of a judge (membership in associations, and political parties in the past). In view of the CJEU’s standard, such circumstances may be significant for the assessment of composition [of the court] and a specific judge. Therefore, the Act preserves the constitutional standard of apoliticality of judges and follows the rule of judicial transparency, which is a basic safeguard of the democratic state of law. The obligation of declaring public activities by judges who are public officials is in the public interest and it is important for protecting such interest.
While acknowledging the need to counter groundless questioning of the status of judges and judicial decisions, and consequently to ensure the constitutionally guaranteed independence of judges, the Act clarifies the previously existing legal provisions in which a disciplinary fault was defined only by means of general and vague expressions, leaving the list of faults open. It is clearly stated that disciplinary faults are actions or omissions that may prevent or significantly hamper the functioning of the judiciary; actions aimed at questioning the service relationship of a judge or the effective appointment of a judge or the constitutional basis of a state body as well as public activities that cannot be aligned with the rules of judicial independence.
The procedure of appointing judges under Article 179 of the Constitution of the Republic of Poland consists of two stages: the first is proceeded before the National Council of the Judiciary and closed with a request being submitted to the President of the Republic of Poland, and the second includes the act of appointment and taking an oath. The appointment is a separate act of systemic and constitutional nature. Pursuant to Article 144(3)(17) of the Constitution of the Republic of Poland, the right to appoint judges is a prerogative of the President of the Republic of Poland and is subject to his sole discretion and responsibility. It constitutes an important part of mechanisms aimed at balancing and putting the brakes on the judiciary. Its systemic role is of essential importance in the assessment of legal nature and gravity of judicial appointments and it is a significant guarantee of the constitutional standard of the right to a fair trial (decision of the Supreme Administrative Court of October 9, 2012, Case File No. I OSK 1883/12; decision Kpt 1/08; judgment of the Constitutional Court of June 5, 2012, K 18/09, OTK ZU No. 63/6A/2012; decision of the Constitutional Court of June 19, 2012, SK 37/08, OTK-A 2012/6/69; decision of the Supreme Administrative Court of December 7, 2017, I OSK 858/17).
In view of the case-law of the Constitutional Court, it should be considered that any attempts to question the prerogatives of the President of the Republic of Poland to appoint a judge, either by means of creating a procedure of removal based on a judicial decision due to an allegedly defective nature of appointment proceedings or by a normative act whose rank is lower than the Constitution would infringe upon not only the norms on the appointment of judges (i.e. Article 144(3)(17) and Article 179 of the Constitution of the Republic of Poland), but also the constitutional rule of irremovability of judges as referred to in Article 180(1) of the Constitution of the Republic of Poland. These norms create a comprehensive and complete mechanism to guarantee judicial independence.
The Improving Act introduces a definition of a judge which includes a reference to Article 179 of the Constitution of the Republic of Poland, in which necessary and sufficient elements to obtain the status of a judge are specified, namely the request submitted by the National Council of the Judiciary and the appointment by the President of the Republic of Poland. The definition specifies the conditions that must be met so that investiture may happen, and the judge may be able to perform their adjudicating functions. These conditions include the act of appointment by the President and taking an oath.
The fact that the definition does not include the words ‘on the request of the National Council of the Judiciary’ does not mean that the President of the Republic of Poland chooses a judge irrespective of the National Council of the Judiciary’s request. In light of Article 179 of the Constitution of the Republic of Poland, it should be considered that, once appointed, an appointee enjoys independence, among others, thanks to their irremovability and the fact that their status cannot be questioned by any entity or state body. The definition of a judge introduced in the Act makes it possible to determine when the service relationship of a judge arises.
Article 42a introduced by the Improving Act does not breach the separation of powers and it does not restrict the court’s right to examine the proper composition of the court. The regulation on the composition of the court, i.e., the number of judges and their professional status, is of constitutional value. According to Article 45 of the Constitution of the Republic of Poland, the right to a fair trial is understood as the right to be heard before a ‘competent’ court, namely the one whose composition complies with statutory acts. The composition of the court is a category of procedural law regulated in relevant procedural statutory acts.
The ‘composition of the court’ cannot be equated with the ‘status of a judge’. The composition of the court specifies the procedural ground for the court’s ability to adjudicate on a specific case and it is subject to assessment and control by the court of higher instance. The status of a judge, on the other hand, is a systemic right of a person appointed by the President of the Republic of Poland in the act of investiture to exercise adjudicating functions. Incorrect composition of the court occurs when the court adjudicates in the composition unknown to statutory acts or different than required for a specific category of cases. If the court’s composition does not comply with legal regulations, proceedings may be found invalid, and this fact is taken into account ex officio by the court at each level of proceedings. It is also a ground for ordinary and extraordinary appeal measures. Lack of investiture means that a specific person is not a judge and therefore there is no question of the composition of the court, either correct or incorrect one.
As for disciplinary liability, the Act does not depart from standards existing in other European states, including similar French and German solutions, where such conduct is subject to criminal liability far exceeding the liability provided for in the Act. The list of disciplinary faults is not closed. It includes the types of conduct that are impossible to classify and therefore the lawmakers use vague expressions to define a fault. Disciplinary liability is of specific nature and it combines the features of quasi-criminal and ethical liability. Both the case-law of the Constitutional Court and the Supreme Court finds it unacceptable to refuse the application of a statutory act without the earlier ruling of the Constitutional Court in this regard as the Constitutional Court is the only body competent to control the constitutionality of legal provisions. Polish law does not allow any dispersed judicial review of constitutionality, but only constitutional review exercised by the Constitutional Court. The adopted model does not exclude the legal standing of various entities, including courts, to seek remedy through legal questions. In case of doubts in terms of the constitutionality of legal provisions, the court has an obligation to submit a legal question to the Constitutional Court. Any contrary view expressing the independent role of courts in making such assessment is excluded by Article 188 of the Constitution of the Republic of Poland.