Resolutions of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018

RESOLUTION No. 1

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018

on the temporary refusal to issue an opinion on candidates for judicial offices of the Gdańsk Appellate regional courts and court of appeal The Assembly of Representatives of the Gdańsk Appellate Judges refuses to participate in the procedure of issuing opinions on candidates for judicial offices of the Gdańsk appellate regional courts and court of appeal until the CJEU takes a stance on the questions referred to it for a preliminary ruling, inter alia, by the Supreme Court on 30 August 2018 in case III PO 7/18, and the ordinary courts, which applied to doubts related to the process of appointing members of the new Council in 2018. Pursuant to Article 58 § 2, Article 34, item 1 in connection with Article 33 § 10 of the Act on the System of Ordinary Courts of 27 July 2001 (consolidated text Journal of Laws of 2018, item 23, as amended) the assembly (of representatives) of the appellate judges is the only body authorised to issue opinions on candidates for the office of judges of the regional courts and courts of appeal and, pursuant to Article 58 § 4 of the Act, issuing an opinion on the candidacy in the manner specified in § 2 is a sine qua non condition for presenting the candidacies to the National Council of the Judiciary for continuing the promotion procedure. This also means that, by the will of the lawmakers, the opinion of the judiciary is a necessary condition for the further course of the procedure on the promotion of a judge and the presentation of candidacies to the National Council of the Judiciary for taking up office of a higher-ranking judge.

The Assembly already expressed its position in resolution No. 2 of 1 March 2018 on the selection of members of the body acting as the National Council of the Judiciary on the basis of the Act amending the Act on the National Council of the Judiciary and certain other acts of 8 December 2017 (Journal of Laws of 2018, item 3), as being in conflict with the provision of Article 186, para. 1 of the Constitution of the Republic of Poland. Similarly, the body acting as the National Council of the Judiciary, as a body to which the members were incorrectly appointed, does not have the capacity to perform the duties entrusted under the Constitution of the Republic of Poland and the constitutional Acts, including speaking up on the procedure of appointing judges of the ordinary courts.

Despite this unambiguous position, during the Assemblies convened in September this year, we issued opinions on a number of candidates to take office in the Gdańsk appellate courts, which was supposed to be an expression of goodwill to the legislative and executive authorities, which, at any time, can and should adjust the regulations on the National Council of the Judiciary to the constitutional requirements. On the other hand, we acted with the conviction that the judges elected in the defective legal procedure to the body acting as the National Council of the Judiciary will remain independent of the representatives of the other authorities and will be guided in their decisions on all matters by the good of the justice system and with respect for the rules of a democratic state of law. While this would not change anything in terms of the assessment of the defectiveness of the procedure, it would give rise to the acknowledgement of the goodwill of the people appointed to the body acting as the National Council of the Judiciary and, in the future – after restoring the constitutional requirements – also the acceptance of the results of these activities in a procedure which is consistent with the constitutional requirements.

Unfortunately, nothing has changed in the legal matter. However, the conduct of the judges who were appointed by the Sejm of the Republic of Poland to the body acting as the National Council of the Judiciary, which was observed during public broadcasts at the sessions on 20, 21 and 22 November 2018, indicates a total disregard of the results of the procedure of issuing opinions on candidates to the ordinary courts.

Consequently, the members of the Assembly of Representatives of the Gdańsk Appellate Judges believe that any participation in the procedure of issuing opinions on candidates for the office of judges of the regional courts and the court of appeal would further legitimise the activities intended to deprecate and even politicise the justice system. The instrumental use of judges for such actions cannot be accepted in any way.

RESOLUTION No. 2

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018 on the matter of the body acting as the National Council of the Judiciary

The Assembly of Representatives of the Gdańsk Appellate Judges fully agrees with and supports the positions of the representatives of the authorities of the judicial association contained in the resolutions:

  1. of the Assembly of Judges of the Regional Court in Lublin of 20 November 2018;
  2. of the Assembly of Judges of the Regional Court in Rzeszów of 15 November 2018;
  3. of the Assembly of Representatives of Judges of the Regional Court in Kraków of 19 November 2018 (No. 1);
  4. of the Assembly of Judges of the Regional Court in Rzeszów of 16 November 2018 (No. 1);

regarding the method in which the body acting as the National Council of the Judiciary processes candidacies for judicial positions in the ordinary courts, ignores the role and significance of the authority that is the Council of the Court and the judicial association, namely the Assembly of Representatives of Appellate and Regional Judges, promotes and recommends substantively dubious candidates, which makes the promotion procedure arbitrary and non-transparent and expressing justified reservations as to the constitutionality of the functioning of the body acting as the National Council of the Judiciary with regard to the solutions adopted in the Act amending the Act on the National Council of the Judiciary of 8 December 2017.

During the proceedings before that body, the membership of which was chosen in gross breach of Article 187, para. 1 of the Constitution of the Republic of Poland, no account is taken of the opinions of the councils and the assemblies of the respective courts, the assessments of the inspectors or the statistical results of the candidates. Numerous cases of appraising candidates according to non-professional criteria give rise to the reasonable suspicion that the choice is made according to the key of loyalty to the executive. The procedure for appointing or promoting a judge in this manner carries a substantial risk of breaching the right to a fair hearing, as referred to in Article 45 of the Constitution of the Republic of Poland, Article 6 of the European Convention on Human Rights, and Article 47 of the Charter of Fundamental Rights, which, in combination with the series of unconstitutional changes in the law, is leading to a significant reduction in the level of protection of civil rights and freedoms.

RESOLUTION No. 3

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018

on the resolution of the body acting as the National Council of the Judiciary of 9 November 2018

The Assembly of Representatives of the Gdańsk Appellate Judges fully agrees with and supports the positions of the representatives of the authorities of the judicial association contained in the resolutions:

  1. of the Assembly of Judges of the Appellate Court in Poznań of 20 November 2018;
  2. of the Assembly of Judges of the Regional Court in Rzeszów of 16 November 2018 (No. 2);
  3. of the Assembly of Representatives of Judges of the Regional Court in Kraków of 19 November 2018 (No. 3);

regarding the non-professional, unconstitutional and statutory position of the body acting as the National Council of the Judiciary regarding Supreme Court Judge Stanisław Zabłocki.

The Assembly reminds the body acting as the National Council of the Judiciary that the constitutional task of the National Council of the Judiciary is to uphold the independence of the courts and the impartiality of judges and not to defame the reputation of judges, including those who are as meritorious for the Polish justice system as judge Stanisław Zabłocki.

RESOLUTION No. 4

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018 on the matter of the announcement by the body acting as the National Council of the Judiciary that it is referring a question to the Constitutional Tribunal

The Assembly of Representatives of the Gdańsk Appellate Judges fully agrees with and supports the position expressed in Resolution No. 2 of the Assembly of the Representatives of Judges of the Region of the Regional Court in Krakow of 19 November 2018, critically assessing the planned approach of the body acting as the National Council of the Judiciary to the Constitutional Tribunal in order to legitimise the procedure of its own appointment.

The Assembly expresses the position that the body acting as the National Council for the Judiciary, which has been operating for several months with its current membership, is not fulfilling its basic constitutional task, which is to uphold the independence of the courts and the impartiality of judges and in some of its activities, it is undermining this independence and impartiality. Such an assessment is confirmed, among others, in the results of the survey conducted by the Judges’ Cooperation Forum, as well as in numerous resolutions of the judicial association.

RESOLUTION No. 5

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018 on the matter of the body acting as the National Council of the Judiciary refraining from the procedure of recommending candidates to judicial offices

In connection with issuing opinions on the candidates for the offices of judges of the Gdańsk Appellate courts on 20–23 November 2018, the Assembly of Representatives of the Gdańsk Appellate Judges requests the body acting as the National Council of the Judiciary to suspend the procedure on issuing opinions on judges and to not submit the applications for appointment to the office of judge to the President of the Republic of Poland.

The Assembly upholds its position regarding the legality and constitutionality of the grounds for the functioning of the current body acting as the National Council of the Judiciary expressed in the resolution of 21 September 2018.

The Assembly simultaneously fully agrees with the arguments raised in the motions of eight judges of the Słupsk Region to the body acting as the National Council of the Judiciary of 19 November 2018 to exclude 14 of its members who are judges from considering motions for appointment to the office of judge of the Regional Court in Słupsk because of doubts as to their impartiality in recommending candidates and the transparency of the procedures. These arise from the lack of disclosure of the lists of support of these judges and therefore it is not known whether the other candidates applying for the office of Regional Court judge, or anyone related to them in any way or in a position of dependence simultaneously supported these judges as candidates to the National Council of the Judiciary. The Assembly critically assesses the failure of the body acting as the National Council of the Judiciary to consider these motions.

The assembly agrees with the doubts expressed, among others, in the decision of the Supreme Court of 30 August 2018 to approach the Court of Justice of the European Union with a question for a preliminary ruling (III OP 7/18), as to whether a Court in which judges are appointed by the body acting as the National Council of the Judiciary, which does not guarantee independence from the legislative and executive authorities because of the constitutional model of its formation and the method in which it operates, will be an independent and impartial court in the meaning of the Constitution of the Republic of Poland and European Union law. As there is a danger of undermining the membership and rulings of such a court in the future, the body acting as the National Council of the Judiciary should refrain from passing resolutions to present a motion to the President of the Republic of Poland for making appointments to the office of judge until a ruling is issued by the Court of Justice of the European Union.

RESOLUTION No. 6

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018 on disciplinary proceedings

With reference to Resolution No. 1 passed by the Assembly on 21 September 2018, regarding disciplinary proceedings conducted by the Disciplinary Representative of the Ordinary Courts and his Deputies, the Assembly of Representatives of the Gdańsk Appellate Judges adamantly objects to the practice of questioning judges as witnesses, without providing basic procedural guarantees and usurping powers for conducting investigations in a manner which is not provided for in Article 114, para. 1 of the Act on the System of Ordinary Courts of 27 July 2001, which, at this stage, only allow for taking statements from a judge and only in the event and in order to confirm circumstances which are necessary for establishing the signs of a disciplinary offence. We regard the practices of questioning judges applied by these representatives in a situation where there are no legal grounds, as well as the practice of checking incorrect judgments of judges in order to find a pretext to institute an investigation against a particular judge as being in conflict with the rules of conduct, reliability and professional integrity. These doubts were clearly indicated by the Ombudsman in his letter of 22 October 2018 addressed to the Deputy Representative, Michał Lasota, as well as in Prof. Kazimierz Zgryzek’s opinion of 2 November 2018.

In sharing these views, we fully solidarize with and support Appellate Court Judge Włodzimierz Brazewicz, who was subjected to such practices by the deputy disciplinary representative and questioned on 6 November 2018 as a witness in the case of participation in the meeting that took place at the European Solidarity Centre in September 2018. The questioning took place in circumstances abusing fair proceedings, without the ability to defend his obvious procedural interests during the questioning, including depriving him of the aid of a professional attorney during the questioning. Simultaneously, an investigation is being conducted by the disciplinary representative with respect to the judge involving checking his incorrect judgments since 2014, the timeliness of the justifications that were prepared and the judicial workload and furthermore, whether any disciplinary proceedings were pending in 2002–2007. We perceive such practices as harassment of judges participating in the public discourse, presenting a critical position with respect to the changes currently being introduced to the justice system, which has the objective of discouraging other judges from taking up such activities in the light of the threat of at least an investigation being initiated by the disciplinary representative.

RESOLUTION No. 7

of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018 on the fulfilment of the Assembly’s resolutions

We obligate the President of the Gdańsk Appellate Court and the person acting as President to publish the resolutions passed on 22 November 2018, as well as the resolutions of the Assembly passed on 21 and 27 September 2018 on the Court’s website and to forward them to the President of the Republic of Poland, the Minister of Justice, the Chairperson of the body acting as the National Council of the Judiciary, the First President of the Supreme Court and the Presidents of the Appellate and Regional Courts.

We simultaneously authorise the members of the assembly and the associations of judges to publish and disseminate the content of the above resolutions, including by sending them to the entities mentioned above.