Open letter
(of 18 January 2022)
We, judges, members of the National Council of the Judiciary of all terms of office from 1990 to 2018, including members of the Council whose term of office was interrupted in violation of the Polish Constitution, in connection with the election of judges – members of the National Council of the Judiciary in 2018 on the basis of the Act on the National Council of the Judiciary of 12 May 2011 (consolidated text: Journal of Laws of 2021, item 269), declare that this election was conducted in breach of Article 187, para. 1, item 2 of the Polish Constitution.
The incompatibility with the Polish Constitution of the appointment of judges – members of the National Council of the Judiciary resulted in the fact that judges enjoying prestige and recognition of the environment did not participate in the election; only judges supported by politicians and a small group of judges who had long concealed this support did so. The National Council of the Judiciary elected in 2018 did not fulfil its basic constitutional function of upholding the independence of the courts and judges (Article 186, para. 1 of the Polish Constitution), while its members participated in the repression of judges, the violation of their independence and the undermining of their constitutional position.
The undermining of the legality of the membership of the National Council of the Judiciary and the questioning of nomination proceedings by the Supreme Court, the Supreme Administrative Court, the Court of Justice of the European Union and the European Court of Human Rights have not halted the Council’s activities, with the number of people defectively appointed as judges steadily increasing. Their status is and will continue to be questioned, as will the legality and correctness of their judgments. This violates the right of the citizens to a trial by an independent court, which isguaranteed by the Constitution of the Republic of Poland, as well as international treaties and conventions, and can lead to unpredictable adverse consequences in the legal system. The defective selection of judges and their attitude has also led to the expulsion of the National Council of the Judiciary from the European Network of Councils for the Judiciary (ENCJ), a forum for European cooperation, of which the Council was a founder member.
The maintenance of the current, unconstitutional model of the election of judges – members of the National Council of the Judiciary prevents the appointment of a body that is capable of performing the duties specified in the Constitution of the Republic of Poland, safeguarding the independence of the courts and the judges, enjoying the recognition and trust of the public and the judicial community. Motivated by concern for ensuring the right of citizens to have their cases fairly heard by independent and impartial courts established by law, we therefore call upon the legislative and executive authorities to establish principles for electing members of the National Council of the Judiciary in accordance with the Constitution of the Republic of Poland and acts of international law that are binding on Poland, and upon judges to refrain from participating in the defective procedure for electing members of the National Council of the Judiciary in the name of fidelity to the Constitution of the Republic of Poland and out of a sense of responsibility for the State and the good of its citizens, until appropriate legislative amendments are introduced.
Former Presidents, Vice-Presidents and Members of the National Council of the Judiciary from 1990 to 2018:
Link to the original publication in Polish: