Opinions of the Venice Commission
A. The Presidential Draft Act on the National Council of the Judiciary
• The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act.
B. The Presidential Draft Act on the Supreme Court
• The creation of two new chambers within the Supreme Court (Disciplinary Chamber and Extraordinary Chamber), composed of newly appointed judges, and entrusted with special powers, puts theses chambers above all others and is ill-advised. The compliance of this model with the Constitution must be checked; in any event, lay members should not participate in the proceedings before the Supreme Court;
• The proposed system of the extraordinary review of final judgments is dangerous for the stability of the Polish legal order. It is in addition problematic that this mechanism is retroactive and permits the reopening of cases decided long before its enactment (as from 1997);
• The competency for the electoral disputes should not be entrusted to the newly created Extraordinary Chamber;
• The early removal of a large number of justices of the Supreme Court (including the First President) by applying to them, with immediate effect, a lower retirement age violates their individual rights and jeopardises the independence of the judiciary as a whole; they should be allowed to serve until the currently existing retirement age;
• The President of the Republic as an elected politician should not have the discretionary power to extend the mandate of a Supreme Court judge beyond the retirement age;
• The five candidates to the positions of the First President of the Supreme Court, presented to the President of the Republic, should all have a significant support of the General Assembly of judges;
• The Act should limit the discretion of the First President in the matters related to the distribution of cases and assigning judges of the Supreme Court to the panels.
C. The Act on Ordinary Courts
• The decision of the Minister of Justice to appoint/dismiss a court president should be subject to approval by the NCJ or by the general assembly of judges of the respective court, taken by a simple majority of votes. Ideally, general assemblies of judges should submit candidates to positions of presidents to the Minister of Justice for approval;
• The Minister of Justice should not have the discretionary power to extend the mandate of a judge beyond the retirement age;
• The Minister of Justice should not have “disciplinary” powers vis-à-vis court presidents; any sanction on court presidents should be imposed according to the same procedure as a disciplinary sanction against a judge;
• The Act should limit the discretion of the court presidents in the matters related to the distribution of cases and assignment of judges to the panels; exceptions from the general principle of random allocation of cases should be narrowly and clearly defined in the law; lower courts’ presidents should not be hierarchically subordinate to the higher courts’ presidents.
Measures taken by the State
Since July 2017, the Minister of Justice has removed, single-handedly, a total of 131 presidents and vice-presidents of Polish courts, and, in March, new members of the National Council for the Judiciary were elected according to the new rules. The European Commission, last December, launched Article 7 procedure against Poland. In April and May 2018 the Polish Sejm voted certain amendments to the laws, which however could be described as essentially cosmetic.
On 3 July 2018 the General Assembly of Supreme Court adopted a resolution stating that First President should continue until her original term of mandate (2020), and stating that the provisions on the new retirement age are not compliant with the Constitution.
In June the CJEU rendered a decision, in which it held that the Irish judge called upon to execute a European arrest warrant must refuse the extradition of an alleged criminal to Poland if there is a real risk that the individual concerned will suffer in the requesting State a breach of his fundamental right to an independent tribunal. In July, the European Commission has launched an infringement procedure against Poland.
A second case was referred to the CJEU by the European Commission on 2 October 2018. It concerned one of the major aspects of the reform, namely the retroactive lowering of the retirement age for judges of the Supreme Court. The Commission believed that this measure also infringed EU law. While the proceedings were pending, the Commission requested an interim measure, and on 19 October the Vice-President of the CJEU ordered the suspension of early retirement of judges and the appointment of the new judges to the SC. At the end of November, the Polish Government introduced draft legislation which would reinstate the Supreme Court judges (including the First President) who were supposed to leave under the new rules. This is positive, but other issues, noted in the 2017 opinion, remain unresolved.