Position of the Association of Judges, THEMIS, on the refusal to execute a final judgment of the Supreme Administrative Court of 28 June 2019

The right to public information, which is guaranteed in Article 61, para. 1 of the Constitution of the Republic of Poland, is one of the most important rights of citizens in a democratic state governed by the rule of law. It allows for the public control of the activities of the public authorities and makes these activities transparent.

Polish citizens have been arbitrarily and unlawfully deprived of this right with regard to information on the procedure of electing the members of the National Council of the Judiciary.

Therefore, there is no way of determining whether the procedure for creating the lists of support for the candidates to the NCJ provided for in the Act was handled correctly. First, the members of parliament who were to choose the members of the NCJ were deprived of this possibility by statute and now, likewise the citizens cannot find out whether the Speaker of the Sejm acted legally.

The National Council of the Judiciary has the task of protecting the independence of the courts and the impartiality of judges. Therefore, the membership of the Council and the method of its appointment have a huge impact on whether it is able to properly perform the duties entrusted to it, or whether it is a politicised body which is at the service of the executive.

The court’s final judgment is the law and the source of obligations for the parties to the proceedings. Everyone, including the Speaker of the Sejm, are equal under the law, while the failure to execute final court judgments is lawlessness that cannot be tolerated in a state governed by the rule of law.

The President of the Personal Data Protection Office does not have the powers to assess whether the Supreme Administrative Court’s judgment is legal. The provisions of the Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data (GDPR), especially Article 86, allow for the disclosure of personal data. Additionally, the Supreme Administrative Court is obliged to adjudicate in accordance with the legal situation that is in force on the date of the adjudication and to overrule judgments or decisions that are in gross breach of the law. Matters of conformity of the judgment issued by the Voivodship Administrative Court with the provisions of the GDPR were therefore also examined by the Supreme Administrative Court.

The decision ordering the Speaker of the Sejm to refrain from disclosing the support list of the candidates to the NCJ is a further illegal operation of the legislative and executive authorities that breaches all standards, which are intended to conceal the procedure of establishing the current neo NCJ. This deprives the citizens of the constitutional right to public information and makes the legality of the actions of the current Council increasingly doubtful. Such doubts are all the more justified that we are waiting for the CJEU judgment on the compliance of the procedure of selecting the National Council of the Judiciary with EU standards, which assume the fully apolitical character of the Council.

All citizens and judges of the Republic of Poland should be aware that the authority, whose most important task is to protect the impartiality of judges and the independence of courts, has been chosen in a manner that the authorities do not want to disclose and the legality of operation of which is justifiably questioned. In addition, we are living in a country in which a final judgment of even the highest judicial authority cannot be executed by an official – a nominee of the executive authority – under any pretext, which is an example of pure lawlessness and a sign of public life becoming anarchistic.

Therefore, we call on the Speaker of the Sejm to immediately execute the final judgment of the Supreme Administrative Court of 28 June 2019.