In 2018 the method of electing judges – members of the National Council of the Judiciary (hereafter: the NCJ) – was changed. According to the Constitution of The Republic of Poland the NCJ consists of, among others, 15 members chosen from judges of the Supreme Court, common courts, administrative courts and military courts,[1] while the procedure of choosing members is determined by the statute.[2] Before 2018 it was the general assembly, meetings of representatives and assemblies of judges from the Supreme Court, common courts, administrative courts and military courts that were electing NCJ members among judges.[3] However this regulation started partially to become null and void on 21 June 2017, due to a verdict by the Constitutional Tribunal.[4] This regulation was fully removed from the system of law by the Sejm on 17 January 2018.[5] From this day on, 15 members of the NCJ – among them judges of Supreme Court, common courts, administrative courts and military courts – are chosen by the Sejm for a 4-year tenure.[6]
Despite the fact that this amendment reversed the undemocratic election of these judges by other judges into the selection by the Sejm – and a regulation concerning election of judges to the NCJ by the Sejm was approved by the Constitutional Tribunal to be consistent with the Constitution of the Republic of Poland – it has become the subject of constant criticism from political and legal circles, in particular the judiciary. This criticism finally led to the conclusion that the NCJ formed by the act from 2017 is not independent from the executive and legislature, and that it is not “an identical body with a constitutional body which composition and way of electing members is regulated by the article 187 section 1 of the Constitution of the Republic of Poland.”[7] Undermining the status of the NCJ causes serious problems, especially regarding judges who were appointed after 2017. According to the constitution judges are appointed by the President of Poland on the motion of the NCJ for an indefinite period.[8] This means that the appointment is made by the decision of the President of Poland, but cannot happen without the motion of the NCJ.
At first it was accepted in the case law that judges who took part in an appointment competition after 17 January 2018 “lost their right to the supposition of independence and impartiality, and that figuring out if a particular judge who received his nomination on those terms is not partial in a situation when the principle of their impartiality is no more since 2018, requires them to present the proof of their impartiality while before the opposite situation, lack of impartiality, was to be presented.”[9]
In the recent days, however, politicians and judges – from cooperating with organisations such as Iustitia and Themis – decided to go even further. According to them, it is no longer about the impartiality of judges, but about stating that they are no longer judges.
On 6 September 2024 there was a meeting in the prime minister’s office.[10] It was attended by the prime minister, the minister of justice and a part of the judiciary which fully supports the current government and declares endless loyalty to its actions. A large number of the participants are working for the Ministry of Justice in executive positions, in government commissions which report to the prime minister, or in the National School of Judiciary and Public Prosecution, which is liable to the minister of justice. There were no invitations to the jurisprudents critical of the government’s actions, including those consociated in the Association Lawyers for Poland, the Association of Judges of Republic of Poland, or the Independent Association of Prosecutors Ad Vocem. After the meeting its participants came up with an idea of how to change the judiciary system. They euphemistically named it as concerning “restoration of the constitutional order and the status of ‘neojudges’.[11]
It should be noted here that the constitution and other legal acts consistently use the term ‘judge’. The term ‘neojudge’ is nowhere to be seen. What is more, the Polish language does not allow this word, invented as a way to describe judges appointed after 2018. It has a disdainful purport and is used to humiliate them. Unfortunately, thanks to cunning propaganda this term became a constant issue for certain media sources, politicians and resolutions, and other documents of judges’ associations. As can be observed, since 6 September 2024 this term has been welcomed to the dictionary of the Polish Government. On this date it was officially used in a statement on the website of the Ministry of Justice and the Chancellery of the Prime Minister.
As a result of the mentioned meeting, it was said that the appointments of judges since 2018 were made illegally with the involvement of the “unconstitutional NCJ”, that they have no legal force and their appointments are not the same as those referred to in Article 179 of the Constitution of the Republic of Poland. This means that ‘neojudges’ are to “return to their previous position”.[12]
As a result, a segregation scheme for judges was invented, distinguishing among them a group of judges appointed after 2017. They were defined as ‘neojudges’,[13] i.e. judges appointed incorrectly.
The group of ‘neojudges’ was split into 3 subgroups.
The first consists of young judges who became judges after graduating from the National School of Judiciary and Public Prosecution. It was said that “the statute will treat their appointment as constitutional.” This means that even though their nominations are considered faulty, they will be ‘healed’ by virtue of the act.
The second group is composed of people who are “connected by so-called common design”, which is said to be “taking part in building an undemocratic order in Poland.” It was not explained in detail what is understood by these populist slogans. Unofficially, there is talk about a group of 500 people who are to be simply removed from the profession of judge.
The third group consists of people who “got their promotions due to their overwhelming desire to do so.”
These two last groups will be able to “return to their previous offices” only if they make a declaration that getting promoted was “their mistake in life”[14] or an “active regret”. People who, before becoming judges, were practising other law-related jobs such as attorneys or legal counsels, were told that there is no going back to their previous jobs. ‘Generously’ they were offered the position of judges’ assistants.
Let me mention that according to the minister of justice, ‘neojudges’ will face disciplinary responsibilities which will be conducted by the specifically appointed ‘Disciplinary Consultation’.
The solutions that were presented sharply interfere with the constitutional order of the Republic of Poland. They ignore the regulations of the constitution, in particular the principle of irremovability of judges.[15]
They neglect the fact that the judges are appointed by the President of the Republic of Poland for an unlimited time and that they take an oath, thereby taking the office. From this point they receive the status of judge, and the privilege to take action as a long arm of justice. That is why examining if their appointment was consistent with law is unacceptable.
Nowadays, ruling legal system nomination acts cannot be verified by court and are not voidable.[16] Effectiveness and non-negotiability of judges’ appointments made by the President of the Republic of Poland, exercising constitutional authority as a prerogative that cannot be verified, is broadly accepted by the Constitutional Tribunal and court jurisdiction. There is not a single state authority who can control or revoke the nomination act of the judge.[17]
It creates the question: where will further anarchisation of the legal system lead? It would be vital to answer the question of who judges and courts are. Are they for the sake of themselves, or for the citizens for whom the most important thing is a quick and fair trial – and not judges’ CVs and the private ambitions of a few judges looking for revenge?
[1] Article 187(1) para. 2 of the Constitution: “The National Council of the Judiciary shall be composed as follows: 15 judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts.”
[2] Article 187(4) of the Constitution: “The organisational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.”
[3] Article 11 of the Act of 12 May 2011 concerning the National Council of the Judiciary ruling until 21 June 2017:
- The General Assembly of Judges of the Supreme Court elects from among judges of the Supreme Court, 2 members of the National Council of the Judiciary
- The General Assembly of Judges of the Supreme Administrative Court and representatives of general assemblies of provincial administrative courts elects, from among judges of administrative courts, 2 members of the National Council of the Judiciary
- The meeting of representatives of appeal courts elects, from among judges of appeal courts, 2 members of the National Council of the Judiciary
- The meeting of representatives of general assemblies of district judges elects, from among judges of district courts, 8 members of the National Council of the Judiciary
- The Assembly of Judges of Military Courts elects, from among judges of military courts, 1 member of the National Council of the Judiciary.
[4] Judgement of the Constitutional Tribunal of 20 June 2017, K 5/17, OTK-A 2007/10/129.
[5] Article 1 point 2 of the Act of 8 December 2017r (Journal of Laws of the Republic of Poland 2018.3).
[6] Article 9a section 1 of the Act of 8 December 2017r (Journal of Laws of the Republic of Poland 2018.3): The Sejm elects from among judges of the Supreme Court, common courts, administrative courts and military courts, 15 members of the National Council of the Judiciary for a 4-year tenure.
[7] A few instead of many: decision of the Supreme Court: of 14 March 2024, III KK 430/23, LEX nr 3715960; of 8 February 2024, III KK 471/23, LEX nr 3670345; of 2 June 2022 r., I KZP 2/22, OSNK 2022, z. 6, poz. 22.
[8] Article 179 of the Constitution: “Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.”
[9] See note 7.
[10] Rządy prawa to nasz wspólny priorytet – Kancelaria Prezesa Rady Ministrów – Portal Gov.pl (www.gov.pl).
[11] The term ‘neojudge’ cannot be observed in any Polish dictionary affirmed by the Council for the Polish Language, which operates at the Presidium of the Polish Academy of Science by the article 12 of Act of 7 October 1999 about Polish language (Journal of Laws of the Republic of Poland 2021.672 (12 April 2021). Every time while writing this article that I used term ‘neojudge’ my text editor would underline this term, informing me that such a word does not exist in the Polish language.
[12] Neo-sędziowie propozycje Ministerstwa Sprawiedliwości i Komisji Kodyfikacyjnej (prawo.pl); Projekty „unieważniające uchwały KRS” gotowe w miesiąc (wpolityce.pl).
[13] It must be repeated that judges’ appointments before 2018 were made by the motion of the NCJ, about which the Constitutional Tribunal at least 5 times reached the verdict that procedures, rules of functioning and the way in which new members were elected were unconstitutional (Ref. No. SK 43/06, K 40/07, SK 57/06, K 62/07, K 5/17). On the other hand, since 2018 judges’ appointments are motioned by the NCJ, which procedures of electing new members have been affirmed as consistent with the constitution by the verdict of the Constitutional Tribunal (K 12/18).
[14] The matter of an obligatory admission that an appointment was “your mistake in life” is a thing worth its own article. Nowadays there is only one quote that comes to my mind: “I belong to you with my soul and body, I am ready to do anything needed to be worthy of your forgiveness and favour.” This is a part of a letter written in April 1936 by Grigorij Zinowiew to Joseph Stalin. Zinowiew was executed in August that same year.
[15] After all, Article 179 of the Constitution of the Republic of Poland states that “Judges are appointed by the President of Poland on the motion of the National Council of the Judiciary for an indefinite period of time”, and Article 180 states that “there is an irremovability of judges” and that “dismissal from office, suspension or relocation to other place or for other office without their will can only happen by court decision and only in situations determined by the law.
[16] See point 133 and point 145 of the verdict made by the Court of Justice of the European Union from 19 November 2019, and point 122 and point 128 of the verdict made by the Court of Justice of the European Union from 2 March 2021.
[17] The Constitutional Tribunal, in the verdict from 25 March 2019 (K 12/18; OTK ZU A/2019, poz. 17), clarified that appointing of judges by the NCJ, according to the Act from 8 December 2017, does not violate the constitution. On the other hand, in the resolution from 21 April 2020 (Kpt 1/20, OTK ZU 2020, poz. 60), the Constitutional Tribunal ruled that jurisdiction to adjudicate given to the judge appointed by the President of the Republic of Poland on a motion of the National Council of the Judiciary must not be limited (see also verdicts of the Constitutional Tribunal from 20 April 2020 r., U 2/20; 16 May 2024 r., U 1/24).