HFHR: proposed reform of Judiciary Council unconstitutional

Empowering the Sejm to appoint judges to the National Council of the Judiciary of Poland, increasing politicians’ influence on the judicial selection process and the President’s power to select judges – these are the key modifications included in the amendment to the Act on the National Council of the Judiciary of Poland proposed by the Ministry of Justice.

In a legal opinion, the Helsinki Foundation for Human Rights emphasises that the proposed reform violates the Constitution, which provides that the National Council of the Judiciary safeguards the independence of courts and judges.

Judges elected by the Sejm

The Ministry proposes to authorise the Sejm to nominate 15 judges sitting in the Council’s 25-member panel. In the opinion of the HFHR, since the Sejm is not a body representing judges or courts, the proposed procedure cannot “implement the principle of representation”. According to the 2010 recommendations of the Council of Ministers of the Council of Europe, at least half of the members of judicial councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.

“The limits of the Sejm’s ‘nomination powers’ towards the National Council of the Judiciary of Poland are defined in the Constitution, which indicates that the Sejm elects its four representatives to the NCJ”, notes Barbara Grabowska-Moroz, a lawyer working with the HFHR. “In all likeliness, those of the judges who publicly criticise actions of the executive will not be nominated to serve on the Council. This means that the level of the NCJ’s independence and criticism may be reduced”, Ms Grabowska-Moroz adds.

The proposed amendment also shortens the term of the judges who are current members of the Council. The HFHR argues that the real purpose of this regulation is to silence the Council’s criticism of public authorities while the officially given justification – a change of the procedure governing the selection of NCJ members – is merely a pretext for attaining the above goal.

New procedure of judicial nominations

The proposed amendment also introduces a procedure for nominating judges by the National Council of the Judiciary of Poland that would be performed by two assemblies: the first of which would be a body comprising mostly of politicians and the second – a panel composed of judges selected by politicians. This measure is equally unconstitutional because it goes beyond the NCJ’s functional framework established by the Polish Constitution.

“An obvious analogy is the structure of the Constitutional Tribunal: without a constitutional amendment, the lawmakers cannot set up two chambers of Poland’s top constitutional court even though such is the composition of, say, its German counterpart”, explains Ms Grabowska-Moroz.

President “appoints”, not “selects”

The proposal of the Ministry of Justice also introduces the rule that whenever more than one candidate for a judicial post is nominated, the National Council of the Judiciary must submit at least two names in its application for the judicial appointment sent to the President of Poland. This gives the President the right to “select” a judge although the Constitution determines that the head of state only “appoints” a judge. The draft amendment does not provide the President with any tools that would enable him to review or assess the candidates presented by the National Council of the Judiciary.

Critical opinions

The draft amendment was presented on 24 January 2017, while invited stakeholders may submit their opinions before 31 January 2017. The legislative proposal was negatively assessed by such bodies as the National Council of the Judiciary of Poland, Commissioner for Human Rights, Supreme Court, and the Executive Board of the European Network of Councils for the Judiciary.