RESOLUTION 1

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

Without evading its statutory obligation, the Assembly of Łódź Appellate Judges hereby decides to defer issuing an opinion on the candidates for vacant Łódź appellate judicial offices until the CJEU takes a stance on the questions referred by the Supreme Court for a preliminary ruling of 30 August 2018 (III PO 7/18) and the Supreme Administrative Court of 21 November 2018 (II GOK 2/18), in particular whether the current procedure of appointing judges is in breach of the fundamental principles of EU law, including the institutional equilibrium and the rule of law.

Justification

Pursuant to Article 17 of the Constitution of the Republic of Poland, a professional association is tasked with ensuring that the profession is properly practiced within the limits of public interest and is protected. As a body of the judicial professional association, we feel jointly responsible for the correctness of the whole procedure of appointment to vacant judicial offices. We are not evading the fulfilment of the obligation imposed on us by law (Article 58 para. 2 of the Act on the system of ordinary courts), however, the method of appointment to the National Council for the Judiciary, the lack of disclosure of the letters of support for its members, the increasingly noticeable lack of independence of the Council from the executive, as well as the current course of contests, in which the assessments of the inspectors, councils and the judicial associations are ignored without any justification, creates what we believe to be a very serious threat to the validity of the nominations made as a result of these contests in the future and, consequently, the judgments issued on their basis and their lack of recognition in the European Union.

As the judicial association, we are required to counteract such a possibility, which is why all the ongoing contests need to be stopped immediately.   Article 9 of the Constitution requires the Republic of Poland to comply with international law, which is binding on it. The matter of compliance of the contested procedure of nomination to a judicial office with EU law is already a subject of proceedings in a case pending before the Supreme Administrative Court, ref. II GOK 2/18, while previously, a similar issue was the subject of the question from the Supreme Court in the request for a preliminary ruling in case III PO 7/18. Therefore, we are deferring issuing an opinion, as provided for by law, pending the receipt of a binding settlement on these matters. We would like to emphasize that the same stance regarding the temporary lack of issuing opinions on candidates for vacant judicial offices was taken by the Gdańsk, Kraków and Szczecin – Gorzów District – appellate judges in resolution No. 1 of the Assembly of Representatives of the Gdańsk Appellate Judges of 22 November 2018, the resolution of the Council of the Appellate Court in Kraków of 26 November 2018 and resolution No. 2 of the General Assembly of Judges of the Region of Gorzów of 26 November 2018.

However, a decidedly negative appraisal of the activities of the National Council of the Judiciary regarding the contests for the vacant judicial offices in the Supreme Court and the ordinary courts in their regions and appellates was given by the Szczecin Appellate Judges (resolution of the General Assembly of 5/10/2018), the Łódź Appellate Judges (resolution no. 1 of the Assembly of Representatives of 22/10/2018), the Opole Region Judges (Resolution No. 1 of the General Assembly of 29/10/2018), the Judges of the Regional Court in Świdnica (resolution of the Assembly of 9/11/2018), the Judges of the Rzeszów Appellate Court (resolution of the Assembly of 15/11/2018), the Kraków Region Judges (Resolution No. 1 of the Assembly of Representatives of 19/11/2018), the Judges of the Lublin Appellate Court (Resolution No. 1 of the Assembly of 20/11/2018), the Regional Court Judges in Poznań (Resolution No. 2 of the Assembly of 27/11/2018), the Regional Court Judges in Katowice (resolution of the Assembly of 29/11/2018) and the Regional Court Judges in Krosno (resolution of the Assembly of 30/11/2018).

The scale of objections and lack of acceptance of the current contests for vacant judicial offices mentioned above, as well as the doubts of the National Council of the Judiciary itself regarding the constitutionality of its appointment, require an immediate, decided reaction from the association within the framework of the obligation referred to in Article 17 of the Constitution of the Republic of Poland to take care of the proper practicing of the judicial profession within the limits and for the protection of the public interest.

RESOLUTION 2

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

The Assembly of Representatives of the Łódź Appellate Judges expresses its full support for the actions taken by Stanisław Zabłocki, judge of the Supreme Court and the President of the Criminal Chamber, expressed, among other things, in the order of 5/11/2018, on the removal of the cases designated for examination by Wojciech Sych and the failure to appoint Wojciech Sych to the adjudicating benches.   This is a manifestation of concern for the justice system, the authority of the highest body of the judiciary and procedural security of the parties. We simultaneously object to the acts taken by the body referred to as the National Council of the Judiciary with respect to Judge Stanisław Zabłocki, President of the Criminal Chamber of the Supreme Court, which suggests that the Judge was “unworthy of the office of judge”. We consider all statements formulated by the people holding office in the body acting as the National Council of the Judiciary, including the judges, questioning the rule of law and Judge’s ethical qualifications as disgraceful. The Judge repeatedly defended both the independence of the courts and the impartiality of the judges in his statements. We shall all remember his appearance in the Senate on 14 December 2017 for a long time. This will be a lesson for all judges of the ordinary courts on how to oppose the breach of the Constitution of the Republic of Poland by representatives of the executive and legislative authorities while maintaining the dignity of the office of judge.

RESOLUTION 3

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

The Assembly of Representatives of the Łódź Appellate Judges supports the pay demands of the employees of the ordinary courts, court secretaries, legal clerks and court assistants, as well as employees of the technical departments. The salaries of these employees have remained unchanged for many years, while the indexation during this period was symbolic. We emphasize that the justice administration is not only judges, but also other employees without whose work the courts would not be able to function.

We appeal to the legislative and the executive authorities to immediately introduce regulations ensuring that the court employees receive fair salaries and that their salaries are permanently and fully adjusted to reality, as well as to hold negotiations with the representatives of the employees to develop a model of compensation for the future which ensures that their salaries will constantly rise. The assurance of the representatives of the executive authority that the state budget is in a very good condition, as well as significant increases for other occupational groups which are paid with public funds, suggest that pay increases are possible for the court employees in the current condition of public finance.

RESOLUTION 4

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

The Assembly of the Representatives of the Łódź Appellate Judges appeals to the National Council of the Judiciary and the President of the Republic of Poland to suspend the procedure of issuing opinions on candidates for judicial offices of the Regional Courts and Appellate Courts of the Łódż Appellate and handing out judicial appointments – until the CJEU takes a stance on the questions referred for a preliminary ruling by the Supreme Court on 30 August 2018 in case III PO 7/18 and the Supreme Administrative Court on 21 November 2018 in the case of II GOK 2/18.

We consider that 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) is 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.

We assess the activities to date of issuing opinions on the candidates to the offices of judges of the Supreme Court and the ordinary courts as the disregard of the fundamental standards of decency and reliability. We treat the retention by the person acting as the Chairperson of the National Council of the Judiciary of the appeals of the judges against the resolutions containing the presentation of candidates to judicial offices, depriving them of the right to a real judicial review of these activities, as an obvious failure to perform his official duties.

We critically assess the approach to the Constitutional Tribunal by the National Council of the Judiciary, one of the objectives of which is to legitimise its own existence. Operating in its current membership for a number of months, the National Council of the Judiciary is not fulfilling its constitutional task of upholding the independence of the courts and the impartiality of the judges to any extent, which is confirmed by the results of the survey conducted by the Judges Cooperation Forum.   The content of the motion which initiated case reference K 12/18 in the Constitutional Tribunal oversteps the rights and role of the National Council of the Judiciary arising from the wording of Article 186, para. 1 and 2 of the Constitution of the Republic of Poland, because the questions asked in it actually aim to limit the powers of the judiciary with respect to the legislative and executive authorities.

The appointment by Ms Julia Przyłębska, acting as the President of the Constitutional Tribunal, of the bench adjudicating on the case on 3 January 2019, without observing the alphabetical order required by Article 38, para. 1 of the Act on the organization and method of proceedings before the Constitutional Tribunal of 30 November 2016, as well as the appointment of only judges elected by the current parliamentary majority to the membership of the bench is unlawful and, in our opinion, arises solely for political reasons. This activity gives rise to reasonable suspicions that it intends to obtain a verdict of a particular content during the proceedings. A ruling issued in these circumstances regarding the correctness of election of the new National Council of the Judiciary will not give this body its proper legitimacy or acceptance in the eyes of judges and the public. For this reason, we appeal to the President of the Constitutional Tribunal, Julia Przyłębska, to nominate judges to the bench in case K 12/18 without so-called “Stand-ins” and with account taken of the alphabetical order required by the wording of Article 38, para. 1 of the Act on the organization and method of proceedings before the Constitutional Tribunal of 30 November 2016, both within the case in question and with respect to those already previously designated in the Tribunal.

RESOLUTION 5

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

The Assembly of the Representatives of Łódź Appellate Judges expresses its adamant objection to the activities of the representatives of the executive, suggesting a lack of impartiality of judges ruling in cases involving politicians, an example of which is the case that is pending before the Regional Court in Gdańsk filed by Jarosław Kaczyński against Lech Wałęsa regarding the protection of his personal rights and the statement by the press officer of the Ministry of Justice, Jan Kanthak, in which he suggested a lack of impartiality on the part of the judge.

We perceive such conduct of the executive as legally unacceptable pressure on a judge which extends far beyond the permissible criticism of judgments that have been issued.

We are not questioning the right of citizens, including the representatives of the legislative or executive authorities, to criticize judgments issued by judges, but the criticism should refer to a judgment that has been issued and should contain substantive arguments, and not just boil down to an attack on the judge, which is consequently construed as an attempt to apply pressure on the judge before issuing a judgment, which is inadmissible by law.

RESOLUTION 6

of the Assembly of Representatives of the Łódź Appellate Judges of 3 December 2018

The Assembly of Representatives of the Łódź Appellate Judges obligates the President of the Łódź Appellate Court to post the content of the resolutions of 3 December 2018 on the website of the Court of Appeal in Łódź and to send the content of the resolution to the President of the Republic of Poland, the Speaker of the Polish Sejm, the Speaker of the Polish Senate, the Prime Minister, the Minister of Justice (Prosecutor General), the First President of the Supreme Court, the Chairperson of the Supreme Court, the Chairperson of the National Council of the Judiciary, the Ombudsman, the presidents of the appellate, regional and district courts, and the associations and organizations of judges.