The main premise of the amendment to the Act on the National Council of Judiciary "providing for a return to the model in which fifteen members of the NCJ are elected by judges, is fully correct and corresponds to the requirements arising from the Constitution. In our opinion, these solutions are not invalidated by the changes introduced to the law at the stage of legislative work in the Senate," the social organizations wrote in a joint statement.
Amendment of the Act on the NCJ
The Parliament is working on the amendment of the Act on the National Council of the Judiciary. One of the main changes introduced by the new law concerns how the judicial members of the NCJ are to be elected - by the judges themselves, according to the new law.
"The restoration of the National Council of the Judiciary to a composition in line with constitutional and international standards is crucial for the restoration of the rule of law in Poland. Without this, it will not be possible to fully implement the biding judgments of the European courts. The functioning of the NCJ in its current form perpetuates the unlawful state of affairs, as it allows this body to nominate judges whose independence and impartiality are undermined and whose sitting on the court does not guarantee the right to a fair trial," the organizations point out in the statement.
The right to stand for election to the NCJ
A recent controversy arose from an amendment adopted by the Senate, which removed from the text of the Act regulations depriving judges appointed with the participation of the NCJ in its current composition of the right to stand for election in the first new elections to the Council.
The amendment was introduced to bring the law in line with the recommendations of the Venice Commission. In that opinion, the Venice Commission stated that the blanket disenfranchisement of all persons appointed with the participation of the NCJ in its current composition raises doubts about compliance with the principle of proportionality - as no provision is made for any individualization of such a measure.
In the Commission's view, possible threats to the Council's impartiality in the process of reassessing the circumstances of those judges' appointments, in which the NCJ could be involved, cannot justify the automatic deprivation of the right to stand for election of all judges in that group. Indeed, in order to guarantee the proper and impartial operation of the Council, it is possible to make use of measures of a less onerous nature, such as the exclusion of a member of the NCJ from consideration of a particular case. The Commission's opinion further stressed that the deprivation of passive electoral rights could adversely affect the discussion on the status of the persons thus appointed and the judgments they make.
"With this in mind, we do not regard the Senate's amendments as a kind of 'rotten compromise' or political bargain that jeopardizes the process of rebuilding the rule of law in Poland. These amendments are in fact anchored in European standards, on which the opinion of the Venice Commission was based," reads the organizations' statement.
The organizations also point out that they do not see "any grounds to question the status and legality of the activities of the NCJ, the members of which would be selected in such a procedure. The Constitution and European standards require that the Council be composed of judges elected by other judges. The law, also as amended by the Senate, meets this standard, as it allows any judge to apply for membership of the NCJ and to vote in this election."
A reform of the NCJ is needed
According to the organizations signed under the position, the entry into force of the amendment to the Act on the NCJ would enable the appointment of several hundred judges whose status would not be questioned, which would have a positive impact on the efficient functioning of the judiciary, which is in crisis.
"At the same time, we are aware that this law is only the first step towards a comprehensive restoration of the rule of law in Poland. This is because a comprehensive regulation of the status of persons appointed with the participation of the NCJ in its current composition and the rulings issued by them will also be needed. It is therefore of utmost importance that conceptual work on this reformulation commence as soon as possible and that international standards, including those presented in the opinions of the Venice Commission, are also taken into account in the course of this work," reads the statement.
