Council of the
European Union
Brussels, 11 September 2018
(OR. en)
12034/18
Interinstitutional File:
2017/0360 (NLE)
LIMITE
JAI 864
FREMP 136
POLGEN 143
AG 20
NOTE
From:
General Secretariat of the Council
To:
Council
No. prev. doc.:
10351/18
Subject:
Rule of Law in Poland / Article 7 (1) TEU reasoned proposal - European
Commission contribution for the hearing of Poland on 18 September 2018
Please find annexed a contribution of the European Commission submitted by the Commission on
10 September 2018 in view of the hearing of Poland on 18 September 2018.
_____________
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RULE OF LAW IN POLAND / ARTICLE 7 (1) TEU REASONED PROPOSAL HEARING
OF POLAND - 18 SEPTEMBER 2018
EUROPEAN COMMISSION CONTRIBUTION
1. Supreme Court: the retirement regime of the current Supreme Court judges, including
the First President, and the regime for prolongation of judicial mandates.
i)
Commission Recommendation of 20 December 2017
In its fourth Recommendation of 20 December 2017 regarding the rule of law in Poland
("fourth Recommendation"), the Commission recommends that the Polish authorities ensure
that the law on the Supreme Court is amended so as to:
–
not apply a lowered retirement age to the current Supreme Court judges
1;
–
remove the discretionary power of the President of the Republic to prolong the active
judicial mandate of the Supreme Court judges
2.
ii) State of play
Amendments to the law of 8 December 2017 on the Supreme Court have been introduced by
four subsequent laws: (i) the law of 12 April 2018 amending the law on Ordinary Courts
Organisation, the law on the National Council for the Judiciary, and the law on the Supreme
Court, (ii) the law of 12 April 2018 amending the law on the Supreme Court, (iii) by the law
of 10 May 2018 amending the law on Ordinary Courts Organisation, the law on the Supreme
Court and certain other laws, and (iv) by the law of 20 July 2018 amending the law on
Ordinary Courts Organisation and certain other laws.
1
For the motivation, see paragraphs 5-12 of the fourth Rule of Law Recommendation ('fourth
Recommendation').
2
For the motivation, see paragraphs 13-17 of the fourth Recommendation.
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The amendments adopted before the General Affairs Council of 26 June 2018 introduced a
mandatory consultation of the new National Council for the Judiciary by the President of the
Republic, when considering the prolongations of mandates of the current Supreme Court
judges
3. The opinion of the National Council for the Judiciary is not binding and is to be
made on the basis of broad criteria, such as 'the interest of the justice system or an important
public interest'. Also, deadlines for deciding on the prolongation have been introduced
4.
Pursuant to the law on the Supreme Court, the current Supreme Court judges who attained
65 years of age by 3 July 2018, were asked to declare their intention to remain in the Supreme
Court by 4 May 2018
5. 27 current judges of the Supreme Court judges are affected by the
lowered retirement age. 16 judges reacted in one way or another to the new prolongation
regime: nine judges submitted a formal declaration requesting prolongation of their mandate,
whilst the remaining seven judges made a general statement that they are fit and ready to
continue to occupy their posts without making a formal declaration requesting prolongation
due to the unconstitutionality of such procedure and its humiliating character. In its opinion of
10 May 2018
6, the Supreme Court explicitly stated that the lack of declarations of the other
11 judges cannot be interpreted as the lack of their will to further adjudicate in the Supreme
Court.
The First President of the Supreme Court is also affected by the new lowered retirement age
7
and her mandate of a 6-year term of office will be prematurely terminated (two years earlier) -
despite the fact that the Polish constitution itself sets the period of that term of office.
3
Article 2(2)(b) and Article 5 of the law of 10 May 2018 amending the law on the Ordinary
Courts Organisation, the law on the Supreme Court, and certain other laws.
4
Article 2(2)(c) and Article 5 of the law of 10 May 2018 amending the law on the Ordinary
Courts Organisation, the law on the Supreme Court, and certain other laws.
5
Article 111(1) of the law of 8 December 2017 on the Supreme Court.
6
Supreme Court's supplementary opinion of 10 May 2018 on the draft law amending the Law
on the Supreme Court.
7
Article 111(1) and (4) of the law of 8 December 2017 on the Supreme Court.
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Recent developments:
Infringement procedure. On 2 July 2018, the Commission launched an infringement
procedure regarding the law on the Supreme Court. According to the Commission, the
retirement regime applicable to the current judges of the Supreme Court and the regime for
prolongation of judicial mandates undermine the principle of judicial independence, including
the irremovability of judges; therefore, Poland fails to fulfil its obligations under Article 19(1)
of the TEU read in connection with Article 47 of the Charter of Fundamental Rights of the
EU. The response of the Polish authorities to the letter of formal notice did not alleviate the
concerns and on 14 August 2018 the Commission sent a Reasoned Opinion. Polish authorities
have one month to take the necessary measures to comply with this Reasoned Opinion.
New law. Following the first hearing, a new law was adopted on 20 July 2018 amending i.a.
the Supreme Court law. In particular, the amendments facilitate the procedure for appointing a
new First President of the Supreme Court
8 and limit the suspensive effect of appeals by
judges who have not been selected by the National Council for the Judiciary for judicial
appointments
9. The law entered into force on 9 August 2018 and retroactively applies to the
procedures of appointments to the Supreme Court initiated in July 2018
10.
8
In particular, the new law lowers the number of judges in the Supreme Court (80 instead of
110) needed for triggering the procedure to appoint a new First President - Article 8(4)(b) of
the law of 20 July 2018 amending the law on Ordinary Courts Organisation and certain
other laws.
9
In order for the appeal to have a 'suspensive effect' on the NCJ resolution, the new law
requires that all candidates concerned, including the successful candidate, appeal from the
resolution; Article 5(5)(a) and (c) of the law of 20 July 2018 amending the law on Ordinary
Courts Organisation and certain other laws.
10
Article 22(1) of the law of 20 July 2018 amending the law on Ordinary Courts Organisation
and certain other laws.
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Vacant posts in the Supreme Court. The President of the Republic had increased (in March
2018) the total number of posts in the Supreme Court from 93 to 120. On 29 June 2018, the
President of the Republic published 44 vacant posts in the Supreme Court
11. On 28 August
2018, the President of the Republic published 11 additional posts. These also include the post
currently occupied by the First President of the Supreme Court.
Requests for preliminary ruling. On 2 and 8 August 2018, the Supreme Court referred several
questions to the Court of Justice of the EU for a preliminary ruling, asking the Court i.a.
whether under EU law Member States can lower the retirement age of Supreme Court judges
and apply it to judges currently in office whilst leaving the prolongation of their mandate at
the discretion of the executive branch. The Supreme Court simultaneously decided to suspend
the applicability of the relevant provisions of the retirement regime. These decisions have
been criticised by members of the executive and legislative branches.
On 23 August 2018, the Prosecutor General, who is also the Minister of Justice, referred a
motion to the Constitutional Tribunal requesting that it declares unconstitutional the
interpretation given by the Supreme Court of the Code of Civil Procedure in conjunction with
Article 267(3) TFEU and Article 4(3) TEU, on which the Supreme Court based its decision to
suspend the applicability of the provisions of the law on the Supreme Court.
iii) Assessment
The developments since the first hearing of 26 June 2018 show an aggravation of the concerns
relating to the retirement regime and an acceleration of the process for appointing new judges
which would lead to the recomposition of the Supreme Court.
11
These also include existing posts which were already vacant before the decision to increase
the total number of posts.
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–
Aggravation of the concerns relating to the retirement regime
As stated by the Commission at the first hearing of 26 June 2018, the new laws adopted in
April and May 2018 are not sufficient to remove the concerns. The application of the new
retirement regime to the current judges of the Supreme Court and the discretionary power
given to the President of the Republic in charge of deciding on the prolongation of judicial
mandates remains a key concern from the point of view of upholding the principles of the
separation of powers and judicial independence: the current judges still have no right to serve
their full term as originally established. It is not sufficient for those judges that have reached
the new retirement age to simply notify their intention to continue to adjudicate, together with
a health certificate, and continue to work. The wide discretion remains for the President of the
Republic to decide on the prolongation of Supreme Court judges' mandates as there are no
specific criteria, and there is no possibility for a judicial review.
As regards the mandatory consultation of the National Council for the Judiciary, it is noted
that the opinion of the National Council is to be based on vague criteria and is not binding on
the President of the Republic. In any case, due to its new politically composed structure which
violates European standards on judicial independence, the involvement of the National
Council for the Judiciary can no longer constitute an effective safeguard.
As a result, 15 judges of the Supreme Court, including the First President, are currently
considered retired by the Polish authorities as of 4 July 2018 and 12 remaining judges are at
risk of forced retirement unless the President of Republic consents to their request to continue
to adjudicate.
The new law of 20 July 2018 does not remove the Commission's concerns. On the contrary, in
spite of the ongoing infringement procedure initiated by the Commission on 2 July 2018, the
amendments aim at ensuring a rapid appointment of a new First President of the Supreme
Court instead of ensuring that the constitutional mandate of the current First President is not
prematurely terminated. The fact that among the 11 new posts recently published by the
President of the Republic, there is the post currently occupied by the First President of the
Supreme Court aggravates the concerns.
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It also appears that the pace of implementation of the retirement regime has so far not been
affected by the Supreme Court's requests to the Court of Justice of the EU for a preliminary
ruling. On the contrary, the Prosecutor General/Minister of Justice seized the Constitutional
Tribunal, whose independence and legitimacy has still not been restored, about the Supreme
Court's decision to suspend this regime.
–
Acceleration of the appointment procedure to new posts in the Supreme Court
Following the first hearing of 26 June 2018, the process for filling the new posts in the
Supreme Court has been accelerated. On 29 June 2018, the President of the Republic
published 44 vacant posts in the Supreme Court and 11 additional posts on 28 August 2018.
The National Council for the Judiciary has also accelerated its work on the selection process
(see below).
Also the new law of 20 July 2018 aims at ensuring that the new vacant posts in the Supreme
Court will be filled as soon as possible, by
de facto eliminating the suspensive effect of
appeals by judges who have not been selected by the National Council and therefore allowing
the President of the Republic to proceed with the appointment of the candidates proposed by
the National Council despite these pending appeals.
It is noted that in its opinion of 16 July 2018 on the new law, the Supreme Court criticises the
amendments underlining that their fundamental aim is to speed up the re-composition of the
Supreme Court. In his opinion of 24 July 2018, the Polish Ombudsman stated that the new
amendments violate the principle of judicial independence and the tripartite division of
powers, and raise concern as regards protection of constitutional rights and freedoms, in
particular the right to an independent court.
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More generally, it should be noted that the Network of the Presidents of the Supreme Judicial
Courts of the EU expressed on 11 July 2018 its serious concerns about the deterioration of the
situation of the Supreme Court, including of the First President, which raise the question of
the independence of the judiciary in Poland with its consequences for the proper functioning
of the EU. Concerns were expressed by other International institutions and European
networks such as the Council of Europe Commissioner for Human Rights, the Council of
Bars and Law Societies of Europe (CCBE), the Consultative Council of European Judges
(CCJE), the International Commission of Jurists, Magistrats Européens pour la Démocratie et
les Libertés (MEDEL), the Federation of the European Bar (FBE), and the presidents of
associations of judges of Nordic and Baltic states of 31 August 2018.
2. The National Council for the Judiciary: election regime of the judges- members of the
National Council for the Judiciary, premature termination of the mandates of the
former judges-members.
i)
Commission Recommendation of 20 December 2017
In its fourth Recommendation, the Commission recommends that the Polish authorities ensure
that the law on the National Council for the Judiciary is amended so that the mandates of its
judges-members are not terminated
12 and that the new appointment regime is removed in
order to ensure election of judges-members by their peers
13, instead of by the legislative
power.
12
For the motivation, see paragraphs 29-30 of the fourth Recommendation.
13
For the motivation, see paragraphs 31-35 of the fourth Recommendation.
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ii) State of play
No amendments have been adopted to address the above concerns. On 6 March 2018, 15 new
judges-members
14 were elected by the Sejm according to the new regime (judges-members
are no longer elected by judges). The four-year mandates of the previous 15 judges-members,
established in the constitution, were prematurely terminated on the same day. The first
meeting of the new National Council for the Judiciary took place on 27 April 2018.
Recent developments
On 12 July 2018, the National Council for the Judiciary adopted five positive and seven
negative opinions on requests for prolongation of active mandates of Supreme Court judges
currently in office. The opinions did not contain any precise motivation.
The new law of 20 July 2018 eliminates the automatic suspensive effect of appeals against the
National Council's assessments of candidates for the Supreme Court; this allows the President
of the Republic to proceed with the appointment of the candidates proposed by the National
Council despite the pending appeal of other candidates.
On 23-28 August 2018, the National Council of the Judiciary held an extraordinary plenary
session in order to establish the list of candidates to be proposed to the President of the
Republic for the appointment to 44 vacant posts in the Supreme Court.
As regards the situation of the First President of the Supreme Court, the National Council for
the Judiciary, on its own initiative, adopted a resolution on 27 July 2018, stating that Mrs
Gersdorf has retired and is no longer the First President of the Supreme Court and
consequently no longer member of the National Council for the Judiciary.
14
The Constitution stipulates that the National Council for the Judiciary is composed of
25 members: ex officio members (the First President of the Supreme Court, the Minister of
Justice, the President of the Supreme Administrative Court and a presidential appointee);
four deputies ‘chosen by the Sejm’, two senators ‘chosen by the Senate’ and 15 judges
(‘chosen from amongst’ the common, administrative and military courts and the Supreme
Court).
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iii) Assessment
The concerns expressed by the Commission fully remain. In particular, the politicization of
the National Council for the Judiciary undermines its role as an effective safeguard of judicial
independence. The new election regime of the judges-members of the National Council does
not comply with European standards requiring that judges-members of Councils for the
Judiciary are elected by their peers. No changes have been introduced in that respect. No
remedy is foreseen to address the premature termination of the four-year mandates of the
former judges- members of the National Council for the Judiciary.
The conditions under which the Sejm elected the new judges-members, and the first meeting
of the National Council for the Judiciary illustrate its politicisation and lack of legitimacy.
While in Poland there are over 11.000 judges, only 18 candidates have been proposed for the
15 posts in the Council.
The law of 20 July 2018, which eliminates the suspensive effect of appeals against the
decisions of the National Council for the Judiciary concerning judicial appointments to the
Supreme Court, confirms the pivotal role given to the National Council to implement in an
accelerated manner the contested reforms, contrary to its constitutional obligation to
safeguard the independence of courts and judges.
The recent developments, in particular the decision of the National Council to speed up the
process of selecting candidates for the new vacant posts through an extraordinary plenary
session, confirm the risks of its politicisation.
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Also, the recent decisions taken by the National Council regarding judicial appointments
reveal that a number of candidates proposed appear to be closely linked to the executive and
the ruling party. For example, as regards the disciplinary chamber, the National Council
selected 12 candidates among which six are prosecutors recently promoted by the Minister of
Justice, two are court presidents recently appointed by the Minister of Justice within the
6-month discretionary regime, and one is an advisor to the Marshal of the Sejm, member of
the ruling party. The concerns regarding the risk of politicisation also appear from the
National Council's resolution, adopted on its own motion, stating that Ms Gersdorf is no
longer the First President of the Supreme Court.
On 17 August 2018, the Board of the European Network of Councils for the Judiciary (ENCJ)
proposed to the General Assembly to vote on 17 September 2018 to suspend the membership
of the Polish National Council for the Judiciary as it no longer meets the requirement to be
independent of the executive and legislature.
3. Ordinary Court judges: retirement regime of current ordinary court judges, regime for
prolongation of judicial mandates and situation of Ordinary Court judges already
affected by the new retirement regime.
(i) Commission Recommendation of 20 December 2017
In its fourth Recommendation, the Commission recommends that the law on Ordinary Courts
Organisation is amended so as to remove the new retirement regime for judges of ordinary
courts, including the discretionary power of the Minister of Justice to prolong their mandate;
also, the situation of the ordinary court judges who have already been forced to retire because
they were affected by the lowered retirement age should be addressed
15.
15
For the motivation, see paragraph 47(f) of the fourth Recommendation and paragraphs
146-150 of the Reasoned Proposal.
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(ii) State of play
Amendments have been introduced by the law of 12 April 2018 amending the law on
Ordinary Courts Organisation, the law on the National Council for the Judiciary, and the law
on the Supreme Court.
The retirement age of female judges at ordinary courts has been aligned with the retirement
age of male judges (65 years of age)
16; female judges at the ordinary courts have been given a
right to early retirement on request upon the attainment of the age of 60
17.
The power to prolong mandates of ordinary court judges has been transferred from the
Minister of Justice to the National Council for the Judiciary
18. The already wide discretion to
decide on the prolongation of mandates has been further broadened
19. There is no judicial
review of the decision concerning the prolongation.
Recent developments
The law of 20 July 2018 empowers the Minister of Justice to change the structure of ordinary
courts at district and regional level
20; the organisational consequence of such changes could
include the transfer of judges between courts, even without their consent, and the possibility
to transform a division into a new court with a new court president.
16
Article 1(4)(a) of the law of 12 April 2018 amending the law on Ordinary Courts
Organisation, the law on the National Council for the Judiciary and the law on the Supreme
Court.
17
Article 1(4)(c) of the law of 12 April 2018 amending the law on Ordinary Courts
Organisation, the law on the National Council for the Judiciary and the law on the Supreme
Court.
18
Article1(4) (a) of the law of 12 April 2018 amending the law on Ordinary Courts
Organisation, the law on the National Council for the Judiciary and the law on the Supreme
Court.
19
Article1 (4)(b) of the law of 12 April 2018 amending the law on Ordinary Courts
Organisation, the law on the National Council for the Judiciary and the law on the Supreme
Court.
20
Article 1(3)-(5) of the law of 20 July 2018 amending the law on Ordinary Courts
Organisation and certain other laws.
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The new law also provides the National Council for the Judiciary, instead of the colleges of
courts, with the power to assess appeals against judicial transfers within the same judicial
district decided by court presidents
21.
(iii) Assessment
The concerns expressed by the Commission fully remain. The alignment of the retirement age
for female and male judges at 65 years of age is to be welcomed but does not remove the
concerns relating to judicial independence.
The amendments do not address the key concern which is that the current ordinary court
judges still have no right to serve their full term as originally established. The wide discretion
to decide on the prolongation of mandates of ordinary court judges remains and has even been
broadened; there is no timeframe for the National Council for the Judiciary to make a decision
and judges concerned continue to adjudicate whilst remaining 'at the mercy' of the Council;
there is no judicial review of the Council’s decision. Whilst the transfer of the power to decide
on the prolongation of ordinary courts judges to the National Council for the Judiciary is a
step in the right direction, this is undermined by the politicisation of that body as a result of
the appointment of the judges-members by the Sejm (see point 2 above).
In addition, the new law of 20 July 2018 appears to further increase the possibilities for the
executive to put pressure on ordinary courts by the Minister of Justice.
21
Article 1(6)(c) of the law of 20 July 2018 amending the law on Ordinary Courts
Organisation and certain other laws.
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4. Disciplinary regime, including the new autonomous disciplinary chamber in the
Supreme Court.
(i) Commission Recommendation of 20 December 2017
In its fourth Recommendation, the Commission underlines that the disciplinary regime
established by the law on the Supreme Court raises a number of concerns in particular related
to the autonomy of the new disciplinary chamber in the Supreme Court
22, the removal of a set
of procedural guarantees in disciplinary proceedings conducted against ordinary judges and
Supreme Court judges
23 and the influence of President of the Republic and the Minister of
Justice on the disciplinary officers
24.
(ii) State of play
The law of 12 April 2018 amending the law on the Supreme Court introduces a provision
enabling current judges of the Supreme Court to become judge in the disciplinary chamber
from the start of its functioning
25 (instead of having in this chamber only newly appointed
judges selected by the new Council for the Judiciary).
Recent developments
The law of 20 July 2018 increases the possibilities for the disciplinary officer (appointed by
the Minister of Justice) to appoint deputies of his choice under certain circumstances
26. It also
allows in certain circumstances to reduce the salary of retired judges for the duration of the
disciplinary proceedings
27.
22
For the motivation, see paragraph 25 of the fourth Recommendation.
23
For the motivation, see paragraph 24 of the fourth Recommendation.
24
For the motivation, see paragraph 23 and 24 of the fourth Recommendation.
25
Article 1(14) of the law of 12 April 2018 amending the law on the Supreme Court.
26
Article 1(30)(c) of the law of 20 July 2018 amending the law on Ordinary Courts
Organisation and certain other laws.
27
Article 1(24) and 1(32)(a) of the law of 20 July 2018 amending the law on Ordinary Courts
Organisation and certain other laws.
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On 5 and 6 September 2018, two regional courts, in separate cases, referred requests for
preliminary rulings to the Court of Justice of the EU relating to the compatibility of the new
disciplinary regime applicable to ordinary court judges with the requirements of EU law
regarding judicial independence (Article 19(1) second subparagraph TEU).
(iii) Assessment
The concerns expressed by the Commission fully remain. The amendment introduced by the
law of 12 April 2018 renders it in practice hardly possible for current Supreme Court judges
to participate from the start as judges in the disciplinary chamber: whilst it is normally the
First President of the Supreme Court who decides on transfers of Supreme Court judges
between chambers (including the disciplinary chamber), the new provisions require for the
disciplinary chamber the consecutive consent of the three Presidents: of the Supreme Court,
the National Council for the Judiciary and, finally, of the Republic.
The disciplinary regime has been identified as a serious concern with regard to the separation
of powers not only in the reasoned proposal but also by the Venice Commission and the
recent GRECO report published on 29 March 2018 which requests "to amend the disciplinary
procedures applicable to Supreme Court judges in order to exclude any potential undue
influence from the legislative and executive powers in these procedures"
28.
As regards the new law of 20 July 2018, the new amendments to provisions governing the
disciplinary regime increase the influence of the Minister of Justice on the appointment of
deputy-disciplinary officers. Changes concerning disciplinary sanctions could have an adverse
impact on the active engagement of retired judges in the public discourse concerning the
judicial reform.
28
On 22 June 2018 GRECO published an addendum to its Ad Hoc Report of 29 March 2018
whereby it concluded that the amendments to the Laws on the National Council for the
Judiciary, the Supreme Court and the Ordinary Courts Organisation enable the legislative
and executive powers to influence the functioning of the judiciary in Poland in a critical
manner, thereby significantly weakening the independence of the judiciary.
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To be noted that in its judgment of 25 July 2018
29 concerning European Arrest Warrants
issued by Polish courts, the Court of Justice of the EU has underlined that the requirement of
judicial independence also means that the disciplinary regime governing those who have the
task of adjudicating in a dispute must display the necessary guarantees in order to prevent any
risk of its being used as a system of political control of the content of judicial decisions.
The two recent requests for preliminary rulings show that the new disciplinary regime is a
source of concrete concerns for judges in Poland.
5. Extraordinary appeal procedure
(i) Commission Recommendation of 20 December 2017
In its fourth Recommendation, the Commission recommends that the Polish authorities ensure
that the law on the Supreme Court is amended so as to remove the extraordinary appeal
procedure
30.
(ii) State of play
Amendments have been introduced by the law of 10 May 2018 amending the law on Ordinary
Courts Organisation, law on the Supreme Court and certain other laws. This law has not
removed the extraordinary appeal procedure.
According to the amendments, the extraordinary appeal procedure can be triggered if it is
necessary in order to ensure compliance with the principle of a democratic state ruled by law
and implementing the principles of social justice
31. Moreover, if the verdict challenged by the
extraordinary appeal has already led to irreversible legal effects, the Supreme Court can
declare that the verdict was issued in breach of the law - but the judgement will not be
repealed
32. This also applies to cases which could ‘undermine international commitments of
Poland’.
29
Case C-216/18 PPU.
30
For the motivation, see paragraphs 18-21 of the fourth Recommendation.
31
Article 2(3)(a) of the law of 10 May 2018 amending the law on the Supreme Court and
certain other laws.
32
Article 2(3)(b) and Article 2(5)(b) of the law of 10 May 2018 amending the law on the
Supreme Court and certain other laws.
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(iii) Assessment
The concerns expressed by the Commission fully remain. The changes do not eliminate the
broadness of the criteria governing the extraordinary appeal: they remain almost the same; in
particular they still refer to 'social justice' albeit in a different wording. The Venice
Commission explicitly criticised such references
33. Also, the 20-year reach of the
extraordinary appeal has not been eliminated, which means that the extraordinary appeal
could result in the repeal of final judgments dating back to October 1997.
The new condition which was introduced aiming at avoiding that the extraordinary appeal will
result in the repeal of judgements infringing international obligations lacks real impact: such
repeal is nevertheless possible if justified by principles or rights established in the Polish
constitution. This could even justify, for example, the repeal of final judgments by Polish
courts applying EU law as interpreted by the case-law of the Court of Justice of the EU.
6. Court Presidents: situation of the court presidents affected by the transitional six-month
dismissal and appointment regime.
(i) Commission Recommendation of 20 December 2017
In its fourth Recommendation, the Commission recommends that the law on Ordinary Courts
Organisation is amended so as to remedy decisions on dismissal of court presidents already
taken under the six-month transitional regime which ended on 12 February 2018
34.
(ii) State of play
In the period between 12 August 2017 and 12 February 2018, over 70 presidents (and 70 vice-
presidents) of courts have been dismissed under the six-month transitional regime which gave
the Minister of Justice the power to arbitrarily dismiss them without any specific criteria,
without justification and without judicial review
35. The laws adopted in April and May 2018
do not address the above issues.
33
Opinion CDL-AD(2017)031, paras 58, 63 and 130.
34
For the motivation, see paragraph 47(f) of the fourth Recommendation and paragraphs
151-162 of the Reasoned Proposal.
35
Data provided by the Ministry of Justice as per statement BM-II-082-219/18 of 19 April
2018.
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(iii) Assessment
The concerns expressed by the Commission fully remain. In particular, no remedy has been
provided for judges who have been dismissed as court presidents.
7. Constitutional Tribunal: publication of the 2016 judgments and the recomposition of the
Tribunal, including the procedure to appoint a new president.
(i) Commission Recommendation of 20 December 2017
In its fourth Recommendation of 20 December 2017, the Commission recommends that
Polish Authorities publish and implement fully the judgments of the Constitutional Tribunal
of 9 March 2016, 11 August 2016 and 7 November 2016
36.
The Commission also recommends that the Polish authorities restore the independence and
legitimacy of the Constitutional Tribunal as guarantor of the Polish Constitution by ensuring
that its judges, its President and its Vice-President are lawfully elected and appointed. In
addition, the Commission recommends to implement fully the judgments of the Constitutional
Tribunal of 3 and 9 December 2015 which require that the three judges that were lawfully
nominated in October 2015 by the previous legislature can take up their function of judge in
the Constitutional Tribunal, and that the three judges nominated by the new legislature
without a valid legal basis no longer adjudicate without being validly elected
37.
36
For the motivation, see paragraph 47(e) of the fourth Recommendation and paragraphs
97-101 of the Reasoned Proposal.
37
For the motivation, see paragraph 47(d) of the fourth Recommendation and paragraphs
91-96 and 102-113 of the Reasoned Proposal.
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link to page 19
(ii) State of play
An amendment has been introduced by the law of 12 April 2018 amending the law concerning
the Constitutional Tribunal
38. The amendment provides for publication of
'findings delivered
in breach of law''. On 5 June 2018 the Polish government published the three 2016
judgements with this disclaimer
.
No steps have been taken in order to restore the independence and legitimacy of the
Constitutional Tribunal.
Recent developments
On 5 July 2018, a group of seven judges of the Constitutional Tribunal (all judges appointed
by previous legislatures and one judge appointed by the current legislature) wrote an open
letter criticising the judge acting as President of the Tribunal for irregularities in her decisions
on the composition of benches, to the detriment of judicial impartiality. This issue is also
raised in a report of the Batory Foundation of 10 July 2018 referring to interferences in the
composition of benches, including as regards judges-rapporteurs, in concrete cases.
On 16 July 2018, a Constitutional Tribunal judge wrote an open letter to the judge acting as
President of the Tribunal criticising her for delaying, to the detriment of the Tribunal itself,
the examination of a complaint against that judge (and two other judges) lodged by the
Prosecutor General/Minister of Justice alleging the unconstitutionality of their appointments
in 2010. Because of the pending complaint, the judge concerned has not been able to
adjudicate in the Constitutional Tribunal since January 2017.
38
Articles 1 and 2 of the law of 12 April 2018 amending the law laying down implementing
provisions for the law on the Constitutional Tribunal (Organisation and Proceedings) and for
the law on the Status of Constitutional Tribunal Judges.
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(iii) Assessment
The concerns expressed by the Commission fully remain. The three 2016 judgements have
not been published as a 'judgement' but as "
findings delivered in breach of law". The Polish
Authorities still have not taken any steps to restore the independence and legitimacy of the
Constitutional Tribunal. In fact, none of the recommended actions set out by the Commission
have been implemented:
–
the three judges that were lawfully nominated in October 2015 by the previous
legislature have still not been able to take up their function of judge in the
Constitutional Tribunal. By contrast, the three judges nominated by the 8th term of the
Sejm without a valid legal basis were admitted to take up their function by the acting
President of the Tribunal;
–
three important judgements of the Constitutional Tribunal of 9 March 2016, 11 August
2016 and 7 November 2016 have still not been published as such, without any
additional qualifications about their legality;
–
after the end of the mandate of the former President of the Constitutional Tribunal, a
new President has still not been lawfully appointed. The former President was not
replaced by the Vice-President of the Tribunal but by an acting President and,
subsequently, by the person appointed as President of the Tribunal on 21 December
2016. The appointment of the new President of the Constitutional Tribunal took place
before an effective review of the law on the status of judges, the law on Organisation
and Proceedings and the Implementing law could occur. The open letters of judges and
the report referred to above raise additional concerns as regards the role of the judge
acting as President of the Tribunal in the functioning of the Constitutional Tribunal.
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Document Outline