In April 2017, the Prosecutor General asked the Constitutional Tribunal, Poland's highest constitutional court, to launch a judicial review of the rules on appointment of members to the National Council of the Judiciary.
Meanwhile, the Sejm, the lower house of the Polish parliament, has been working on a proposed amendment - a government-sponsored bill - to the National Council of the Judiciary Act.
How judges are selected
Under the current law, member judges of the National Council of the Judiciary (NCJ) of Poland are elected indirectly, by electors chosen from among the representatives of assemblies of appellate courts and from representatives of regional assemblies of judges.
The prosecutor general alleges that the current rules for appointing judges as members of the NCJ place unreasonable restrictions on judges’ right to be elected.
The Tribunal agreed with the prosecutor general’s argument, holding that the Constitution does not define any criteria that could be adopted by the legislator in order to differentiate NCJ election opportunities available for different categories of judges.
In consequence, the Tribunal concluded, the Parliament may not define such criteria according to its own choosing.
In camera hearing
"The presented verbal summary of the ruling does not indicate whether the Tribunal analyzed if the current procedure establishes the criteria for judges’ appointments to the NCJ in a rational and proportional way," argues Dr. Barbara Grabowska-Moroz, an HFHR legal expert.
The absence of such an analysis is a consequence of the fact that the Tribunal considered this important constitutional matter very hastily at an "in camera," or private, hearing. Furthermore, the judgment was passed by a panel including so-called double judges, who were appointed by the ruling PiS party instead of judges already confirmed by the previous parliament.
Term of office at NCJ
According to the Constitutional Tribunal, the current interpretation of provisions on the term of NCJ members’ appointments, which is deemed to run independently for each member, is also unconstitutional.
The Tribunal ruled that the structure of the relevant constitutional provision indicated that all elected members of the National Council of the Judiciary should serve a single, common term. This term, according to the Tribunal, should run concurrently for the 15 judges, four Sejm deputies and two senators on the NCJ.
“Such an interpretation of this provision seems to be a pretext for introducing the proposed changes to the functioning of the NCJ, and in particular to the procedure of judges’ appointment”, Grabowska-Moroz says. “However, any such changes cannot disregard the fact that the National Council of the Judiciary’s ability to guarantee the independence of courts depends on the Council’s independence from political pressures”, she adds.
Changes to NCJ Act
The amendment to the law on the NCJ, which is currently being debated by the Sejm, gives that body the authority to appoint 15 judges to the Council, far surpassing the constitutional limit of four seats that the Sejm is given appointment power over (to be filled by Sejm deputies).
The Constitutional Tribunal's decision does not say that the appointment of judges by judges is unconstitutional per se, nor does it shorten or terminate the term of current NCJ members.