of 1 March 2018 by the Meeting of Representatives of Judges in Gdańsk Appeal District on election of members to the National Council of the Judiciary

Resolution No 2

of 1 March 2018 by the Meeting of Representatives of Judges in Gdańsk Appeal District on election of members to the National Council of the Judiciary

The judges attending the Meeting of Representatives of Judges in the Gdańsk Appeal District express their categorical protest against the method of electing members to the part of the National Council of the Judiciary (NCJ) that consists of judges, which results from the regulations introduced by the Act on Amending the Act on the National Council of the Judiciary and some other Acts of 8 December 2017 (Journal of Laws 2018, position 3).

The Meeting points out that the election of 15 judges by the Sejm of the Republic of Poland is an obvious and flagrant breach of Article 187 Section 1 of the Constitution of the Republic of Poland, which, in Point 3, gives the Sejm the right to elect only 4 members of the NCJ, while, in Point 2, it entrusts the election of 15 members to judges.

This is confirmed not only by the Polish Constitutional Court in the reasons for its sentence of 18 July 2007 on case K 25/2007, but also by the Venice Commission, resolutions of the European Parliament, and opinions of the United Nations Organization. It is also concluded from documents such as the European Charter on the statute for judges prepared by the Council of Europe in 1998, whose point 1.3 states that “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary”. Similar statements are included in the Magna Carta of Judges, drafted in 2010 under the auspices of the International Association of Judges, whose point 13 says that “To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers (…)”.

The Act on the National Council of the Judiciary that went into force on 17 January 2018 breaks the constitutional norm as specified above and constitutes a move away from civilized standards of the rule of law. Furthermore, it makes the election of judges a political matter, undermining the principle of independence of the judiciary from the executive and the legislative branches of government and depriving Polish citizens of appropriate protection of their rights and freedoms, including in particular their right to fair trial.

The Meeting additionally notes that the judges nominated as candidates to the NCJ do not have wide support of their peers and cannot be regarded as their representatives. At the same time, there are serious doubts whether the candidates in fact meet the highest professional and ethical standards that are required of a judge who is a member of the NCJ.

The Meeting strongly protest against keeping secret the lists of persons who supported the nominated candidates. This stands in contradiction to the principles of openness of public life and transparency of procedures that characterize the rule of law.

 

Resolution No 3

of 1 March 2018 by the Meeting of Representatives of Judges in Gdańsk Appeal District on the new act on the Supreme Court

The judges attending the Meeting of Representatives of Judges in the Gdańsk Appeal District consider the new act on the Supreme Court to be harmful.

The act was prepared with disregard for the rules of lawmaking, without wide consultations among the general public, ignoring the critical opinions of scientists as well as associations of lawyers and academics.

The following amendments introduced by this act meet with our particular disapproval: terminating the term of office of the President of the Supreme Court that is foreseen by the constitution by means of an ordinary act, forcing a substantial part of the Supreme Court judges to retire, creating within the Supreme Court the Disciplinary Chamber endowed with special competences, introducing the extraordinary appeal that will undermine the stability of sentences and any legal certainty.

Contrary to views expressed by politicians, these amendments will not solve the most important problems of the judicial system in Poland. On the opposite, in their present form they constitute a real and serious danger to the independence of courts and judges. They threaten to destroy the prestige of the Supreme Court, which will have negative consequences for the legal security of citizens, the uniformity of sentences and the efficiency of court proceedings.

In the context of other changes to the judicial system that have been passed recently, this act endangers freedom and security of Polish citizens and the democratic state based on the rule of law.

These changes infringe on the principle of checks and balances, making the judiciary subordinate to the executive and the legislative branches of government.