Nature of the appointment of judges as the constitutional prerogative of the President of the Republic of Poland
Definition of a judge in Poland
1. Definition of a judge. Article 179 of the Polish Constitution does not define the concept of a judge. However, it specifies the constitutional grounds and procedure for appointing a judge. It establishes the requirements for an effective acquisition of the status of a judge, which requires two elements: a request from the National Council of the Judiciary (KRS) and an appointment by the President of the Republic of Poland. These are necessary and sufficient elements to obtain the status of a judge. The nomination process under the Constitution excludes the necessity to meet any other conditions and, regardless of other conditions that are provided for in the Act, if these two constitutional requirements are fulfilled, it is the sole and sufficient prerequisite for obtaining the status of a judge.
2. There is no statutory definition of a judge in the Polish Constitution or any other legal act. Nevertheless, it can be concluded from all constitutional norms that these requirements are: the status of a natural person with a full capacity to enter into legal transactions and the status of a university graduate in law, i.e. having the command of law confirmed by a university diploma. Other requirements have been left to statutory regulations.
3. The amendment introduces a definition of a judge that is not contrary to Article 179 of the Constitution. Indeed, it determines what conditions are necessary for an effective investiture (judge’s vote), and thus the ability to adjudicate. They are: an official confirmation of appointment from the President and taking an oath. Contrary to the opinion of the Judicial Decisions Bureau of the Supreme Administrative Court (NSA), the fact that the statutory definition does not include the phrase “at the request of the National Council of the Judiciary (KRS)” does not mean that the President chooses a judge independently of the KRS’s request. In the light of Article 179 of the Constitution, it should be considered that upon the appointment, the entitled person obtains a guarantee of independence, which is implemented, among others, by the person’s irremovability and impossibility of challenging their status by any entity or state authority.
4. The definition of judge introduced in the Act makes it possible to determine when a judge’s service relationship originates. A judge’s service relationship (as an employment relationship) is established on the basis of their appointment (within the meaning of labour law – nomination) following an oath.
5. The definition of a judge thus introduced applies to all judges; therefore, it applies to judges appointed by the President and by authorities competent for such appointments pursuant to the provisions that are in force at the date of appointment. Indeed, the statement in item 8 (p. 10) of the opinion of the Judicial Decisions Bureau of the Supreme Administrative Court (NSA) that the current legal framework lacks provisions allowing to challenge the status of judges appointed by the Council of State of the Polish People’s Republic is inexplicable. On the one hand, questioning of the status of a judge appointed by the current National Council of the Judiciary (KRS) is accepted and a claim for determination that a judge’s service relationship is non-existent is allowed, whereas, on the other hand, no challenging actions are accepted in the case of judges appointed by the undemocratic Council of State. It should be noted that no provision enacted after 1990 sanctioned or recognised as valid the status of persons appointed by an undemocratic authority of the communist state.