Yesterday, the National Council for the Judiciary issued a negative opinion on the amendment to the Law on the National Council for the Judiciary, drawing attention to its unconstitutionality and the risk of “permanent stigmatization of some judges”. Today she asked the Constitutional Tribunal to examine the constitutionality of the articles of the Common Courts Act. In this way, the Minister of Justice could dismiss court presidents or vice presidents without the advice of the National Council for the Judiciary.
The National Council for the Judiciary has adopted a resolution to submit a request to the Constitutional Court to ensure compliance with art. 27 § 5 and art. 27 § 5a, second sentence, of the law – Law on the Organization of Community Courts. The disputed articles concern the possibility of dismissing the president or vice-president of a court by the Minister of Justice without the advice of the National Council for the Judiciary.
The National Council for the Judiciary requests a declaration that the above provisions, insofar as they give the Minister of Justice the power to dismiss the president or vice-president of a court without the advice of the National Council for the Judiciary, and not allowing -the binding nature of a negative opinion of the Council on the intention of the Minister of Justice to dismiss the president or vice-president of a court is unconstitutional.
The analysis of the above-mentioned provision leads to the conclusion that the legislature did not leave the question of dismissing the president or vice-president of the court to an arbitrary decision of the Minister of Justice.
– emphasizes the Council.
Looking through the prism of the above audit patterns, the procedure for verifying the dismissal of the President/Vice President of a court is it cannot only be a tool to confirm the domination of the executive over the judiciary, but should be the implementation of the conditions of the Polish constitutional order, which requires cooperation and not confrontation of the authorities.
– we read in the motivation of the application.
The justification for the motion was that “the omission of the National Council for the Judiciary in providing advice (…) means that he (the Minister of Justice – PAP) will be able to influence the decision through voting of the National Council for the Judiciary in his case to a greater extent than the use of the general voting rules from the Act on the National Council for the Judiciary.
“It is also necessary to obtain the approval of the National Council for the Judiciary.”
The procedure provided for by law provides for the supervisory role of the administration of the competent court and the National Council of the Judiciary (the dismissal of the President/Vice-President of the court due to his dismissal from office was excluded from this mechanism in accordance with Article 27 § 6 of the law). A positive opinion from the board of the competent court paves the way for the dismissal of the president/vice-president of the court, while a negative opinion means that in order to complete the actions taken by the Minister of Justice, it is also necessary to obtain the approval of the National Council for the Judiciary
– further indicates the National Court Register.
Failure to file the intention to appeal (along with a written justification specifying and arguing the validity of this action) would mean the end of this procedure, with a positive outcome for the continuation of the current President’s office /vice president of the court. . The law stipulates that a negative opinion from the National Council for the Judiciary is only binding on the Minister of Justice if it is adopted by a two-thirds majority of votes.
– we read in the motivation of the application.
Recommended solution prevents the National Council for the Judiciary from effectively and realistically fulfilling its constitutional obligation to guarantee the independence of judges and the independence of courts
– emphasizes the National Council for the Judiciary and recalls that the case law of the Constitutional Court clearly states that the legislature is responsible for “the obligation to equip the National Council of the Judiciary with instruments that guarantee a real possibility of effectively fulfilling its constitutional tasks”.
This argument remains valid “in the context of the establishment of co-decision1 of the National Council for the Judiciary with the Minister of Justice on the appointment of presidents of appeal and district courts.” (judgment of the Constitutional Court of 19 July 2005, K 28/04)
– we read on.
The Council requests that security be granted until the Constitutional Court makes a final ruling on this matter by suspending the binding force of the provisions mentioned in the petition.
aja/PAP, National Court Register
Source: wPolityce