The changes proposed by the National Council of the Judiciary are “a further destabilization of the justice system,” said Małgorzata Manowska, the first president of the Supreme Court. According to her, the “justified” desire to ensure that the election method guarantees the representativeness of judges at different levels in the National Council for the Judiciary in this project constitutes “a caricaturization of the idea of judicial elections for members of the National Council for the Judiciary Jurisdiction. Council for the Judiciary.”
The December 2017 amendment to the Law on the National Council for the Judiciary introduced, among other things: the principle that fifteen judicial members of the National Council for the Judiciary are elected by the Sejm – previously they were elected by the judicial community. The draft amendments to the law, which the Ministry of Justice is working on, assume, among other things, that members of the National Council for the Judiciary will be elected by judges and that a Social Council will be established to support the National Council for the Judiciary Jurisdiction. in the performance of its duties, and the mandates of the judge members of the National Council for the Judiciary elected after 2017 will expire after the announcement.
Deputy Minister of Justice said Arkadiusz Myrchathat “there are many indications” that the government will discuss the bill on the National Council for the Judiciary this week.
Breach of the National Court Register system
According to the first President of the Supreme Court, Małgorzata Manowska, the introduction of the proposed changes would not only result in a violation of the constitutional foundations of the National Council for the Judicial System, but also in “further destabilization of the judicial system.” and negative consequences for the legal situation of participants in legal proceedings.”
In particular, the proposed provision (…) in which the author excludes the possibility of membership of the National Council of the Judiciary for judges exercising specific functions (including the president or vice-president of the court) must be considered secondarily unconstitutional. The indicated solution is a copy of the previously applicable provision of the Law – Law on the System of Common Courts, which was declared unconstitutional by the Constitutional Court in 2007.
– Manowska said in her opinion on the draft amendment to the law on the National Council for the Judiciary.
President Manowska also ruled that the proposed provision was contrary to the provisions of the Constitution and the established case law of the Constitutional Court, which limits the possibility of running for office and appointing judges to the National Council of the Judiciary who hold their positions took over as judge. a result of an application for the appointment of a judge, submitted to the President by the National Council for the Judiciary, developed after the entry into force of the amendment to the Law on the National Court Register of December 8, 2017
Unconfirmed unconstitutionality
According to Manowska, as of 2018, the statement about the unconstitutionality of the National Council for the Judiciary has never been confirmed in the proceedings before the Constitutional Court provided for in the Constitution.
The constitutionally defined status of a judge, including the principle of irremovability (…), cannot be limited or questioned by law, and any attempts in this direction undermine the fundamental systemic assumptions about the functioning of the judiciary .
– emphasized the first President of the Supreme Court.
As she noted, the established case law of the Constitutional Tribunal has “repeatedly found violations of the Constitution in the nomination of candidates for judicial positions,” but such flaws in the appointment process have never led to the effectiveness of the appointments themselves being questioned drawn.
Such arrangements are also unacceptable in light of the established case law of the Court of Justice of the European Union, which rejected the possibility of an “automatic” nullification of the effects of the appointment of a judge due to identified deficiencies in the appointment procedure. In the opinion of the CJEU, even the fact that the appointment took place under the conditions of an undemocratic regime such as the Polish People’s Republic and at the initiative of an organ of that State does not in itself call into question the independence and impartiality of the Polish People’s Republic . such a judge. Therefore, doubts about the way in which the National Council for the Judiciary functions in the reality of a democratic state under the current constitution cannot give rise to a similar effect.
– says President Manowska.
““Caricatural elections”
The First President of the Supreme Court also made constitutional reservations regarding the proposed prevention of membership of the National Council of the Judiciary by judges who would, among other things, carry out administrative activities. at the Ministry of Justice and regulations providing for the establishment of a Social Council operating within the National Council for the Judiciary.
In this context, the selective and unreliable reference to the positions of the bodies of the European Union and the Council of Europe, cited in the justification of the project in support of the proposed changes, must be regarded as a failed attempt to mask solutions that are contrary to the principle of the democratic constitutional state. The legitimate desire to ensure that the procedure for electing judges-members of the National Council of the Judiciary guarantees the representativeness of judges at different levels, in the approach proposed by the initiator of the project, is a caricature of the idea of the election of the judiciary. members of the National Council for the Judiciary by all judges.
– emphasized President Manowska in her opinion.
The current National Council for the Judiciary consists of 25 people and is a hybrid body, consisting of representatives of the judicial community, parliament (four parliamentarians, two senators), the Minister of Justice, a representative of the president and the President of the Supreme Administrative Court and the first President of the Supreme Court.
READ ALSO:
— What will Bodnar do with the National Court Register? A new, dangerous concept of the head of the Ministry of Justice instead of shortening the term of office of the members of the Council. He decided that in this form… it didn’t exist!
— Prof. Manowska: “I, as a citizen of this country and as the first President of the Supreme Court, have the right to be afraid”; ‘We are on the edge of the abyss’
— “Caste” demands repayment of debt? Rebel judges want to remove the first president of the Supreme Court from office. They drafted a scandalous letter
Mom/Dad
Source: wPolityce