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Constitutional Tribunal heard Prosecutor General’s motion on National Council of Judiciary

The Constitutional Tribunal ruled that the current procedure for the appointment of judge members of the National Council of the Judiciary was unconstitutional. In April 2017, the Prosecutor General asked the Tribunal to launch the judicial review of the appointment rules. At the same time, the Sejm is working on a proposed amendment to the National Council of the Judiciary Act, which is a government-sponsored bill.

How judged are selected to sit on NCJ

Under the current law, judge members of the National Council of the Judiciary of Poland are elected indirectly, by electors chosen from among the representatives of assemblies of courts of appeal and from among the representatives of general assemblies of judges of regions. The Prosecutor General alleged that the current rules of appointing judges as members of the NCJ placed unreasonable restrictions on judges’ right to be elected. The Tribunal shared the PG’s argument, holding that the Constitution does not define any criteria which could be adopted by the legislator in order to differentiate NCJ election opportunities available for different categories of judges. In consequence, the Tribunal concluded, the Parliament may not define such criteria according to its own choosing.

In camera hearing

“The presented verbal summary of the ruling does not indicate whether the Tribunal analysed if the current procedure establishes the criteria for judges’ appointments to the NCJ in a rational and proportional way”, argues Dr Barbara Grabowska-Moroz, HFHR legal expert.

The absence of such an analysis is a consequence of the fact that the Tribunal has considered this important constitutional matter very hastily at an in-camera hearing. The Constitutional Tribunal set the date for pronouncing the judgment last week. Furthermore, the judgment was passed by a panel comprising so-called “double judges”.

Term of office at NCJ

According to the Tribunal, the current interpretation of provisions on the term of NCJ members’ appointments, which is deemed to run independently for each member, is also unconstitutional. The Constitutional Tribunal ruled that the structure of the relevant constitutional provision indicated that all elected members of the National Council of the Judiciary should serve during one, common term. This term, according to the Tribunal, should run concurrently for 15 judges, 4 Sejm deputies and 2 senators.

“Such an interpretation of this provision seems to be a pretext for introducing the proposed changes to the functioning of the NCJ, and in particular to the procedure of judges’ appointment”, Ms Grabowska-Moroz says. “However, any such changes cannot disregard the fact that the National Council of the Judiciary’s ability to guarantee the independence of courts depends on the Council’s independence from political pressures”, she adds.

Changes to NCJ Act

The amendment to the law on the NCJ, which is currently debated at the Sejm, gives the Sejm the authority to appoint judges to the Council. This authority surpasses the limits of the Sejm constitutional powers of appointment of 4 representatives to the NCJ. In any case, the Constitutional Tribunal has not ruled that the appointment of judges by judges is unconstitutional per se. What is more, today’s Tribunal decision does not shorten or terminate the term of current NCJ members.

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