The Kraków Appellate Judges declare that they are refraining from issuing an opinion on the candidates for taking up office of judge of the Appellate Court in Kraków until the CJEU takes a stance on the questions for preliminary rulings submitted, among others, by the Supreme Court in case III PO 7/18, by the ordinary courts and by the Supreme Administrative Court in case II GOK 2/18.
We uphold the reservations as to the constitutionality of the solutions adopted in the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts. Consequently, we uphold the negative assessment that the selection of fifteen people practicing the profession of judge as members of the National Council of the Judiciary and the noticeable connections between them and the Minister of Justice do not guarantee the due performance of their obligations provided for by the Constitution. This gives rise to legitimate concerns about the political subordination of a body which is supposed to protect the independence of the judiciary.
We would like to point out that this state of affairs raises legitimate concerns about the legality of the nomination procedure in which the National Council of the Judiciary plays a key role.
These doubts are justified, considering the conduct of the members of that authority in the procedure of issuing opinions on candidates, manifested in the complete disregard of the results of the opinions on the candidates expressed by assemblies of judges in the ordinary courts and ignoring the actual competencies of the candidates.
Any participation in the procedure of issuing opinions on candidates who are to take up office in the Appellate Court in Kraków would be a legitimisation of activities that have the objective of depreciating the justice system.
We simultaneously request the President of the Appellate Court in Kraków not to present candidates to the National Council of the Judiciary for 1 vacant judicial office, as announced by the Minister of Justice on 12 July 2018 (Monitor Polski of 2018, item 713) in connection with the doubts mentioned above and in connection with the wording of Article 58, para. 2 and 4 of the Act on the system of ordinary courts. We declare that we express our will to issue opinions on candidates after the CJEU settles the reservations we have raised.
We consider the motion of the body acting as the National Council of the Judiciary to the Constitutional Tribunal of 22 November 2018 regarding the examination of the compliance of the Act on 12 May 2011 on the National Council of the Judiciary (Journal of Laws of 2018, item 389, as amended) with the Constitution of the Republic of Poland will not result in the legitimisation of its applicant. The judges who are currently members of the National Council of the Judiciary were selected by politicians and therefore in gross breach of Article 187 of the Constitution, while the current method of operation of this body is in conflict with its constitutional function, which is to care for the independence of the courts and the impartiality of the judges.
This assessment cannot be changed by a ruling of the Constitutional Tribunal, which has been transformed over the past three years from being a guardian of the Constitution to being one of the main instruments of destruction of the rule of law in Poland. This was achieved after the illegal assumption of control over it by the grouping that has the majority in the parliament, which was based, among other things, on the selection of three judges – stand-ins to take over offices that were already occupied, as well as the nomination of Julia Przyłębska to the position of interrex in breach of the Constitution after the expiry of the term of office of the President of the Constitutional Tribunal, Andrzej Rzepliński. The members of the Constitutional Tribunal appointed over the last three years have repeatedly breached the basic principles of a fair hearing, including by bringing about a situation in which two judges – stand-ins (judges Cioch and Muszyński) ruled in their own cases in the case of case ref. K 1/17. The manipulation of the benches by the person acting as the President of the Constitutional Tribunal should be assessed in a similar manner. This method of operation and the membership of the Constitutional Tribunal justify the assertion that this is a body which is guided by non-substantive matters when ruling, fulfilling the will of the main centre of political authority with the intention of subordinating the judiciary to itself.
We would like to point out that, with regard to the constitutionality of the current National Council of the Judiciary, which is to be considered on 3 January 2019, there are premises for removing 3 of the 5 members of the Constitutional Tribunal, who were appointed to consider it, namely judges Julia Przyłębska, Michał Warciński and Grzegorz Jędrejek. This arises from the fact that these judges ruled earlier in the case of case reference K 5/17, where, in the justification of the ruling of 20 June 2017, the bench expressed the view that the election of judges – members of the current National Council of the Judiciary – by the members of the lower house of parliament is consistent with the Constitution, without any dissenting opinions. The nomination to the bench of the majority of judges who previously expressed an unambiguous view of the matter indicates that the content of the future ruling is already predefined as being in line with the will of the political factor. Similarly, the involvement of the judges in the bench means that the ruling will be subject to a serious legal defect.
We would also like to point out that the motion in question to the Constitutional Tribunal was submitted in a situation in which the legality of the method of choosing the current members of the National Council of the Judiciary is to be assessed by the Court of Justice of the European Union when considering the request of the Supreme Administrative Court of 21/11/2018 in case II GOK 2/18 for a preliminary ruling. Therefore, in our opinion, after the motion filed by the Prosecutor General / Minister of Justice of 5/10/2018 to find that Article 267 of the Treaty on the Functioning of the European Union is partially inconsistent with the Constitution, the motion of the National Council of the Judiciary which was filed with the Constitutional Tribunal is another motion which questions the effectiveness of the judgments of the Court in Luxembourg with respect to Poland and therefore undermines the essence of Poland’s membership of the European Union.
For these reasons, we express the conviction that a predetermined result of the assessment of the constitutionality of the National Council of the Judiciary will not give this body either the appropriate legitimisation or acceptance in the eyes of the judges and the public and will therefore be seen as another step towards PolExit.