National Council of the Judiciary

KRS

National Council of the Judiciary

 

  • The National Council of the Judiciary is a constitutional body and its competences result directly from the Polish Constitution. Nevertheless, it is not a judiciary body, which is confirmed by the case law of the Constitutional Tribunal. Therefore, its structure and the manner of selecting its members, including judges, may not be assessed according to standards of court independence.

 

  1. The organisation of the justice system does not belong to areas covered by the European Union’s competences. Neither Article 19 of the Treaty on European Union nor Article 47 of the EU Charter of Fundamental Rights are the basis for accepting the European Union’s competences in the scope of the national justice system. It applies to the criteria and legal effects of the judge appointment. The CJEU judgement of 19 November 2019 concerns the assessment of the court independence in specific cases.
  2. It results from the existing CJEU case law that inspecting the compliance with the Union law of national measures undertaken outside the scope of the Union law is inadmissible. The elements of the Constitution outside the scope of the Union law is not subject to the Treaty. They determine the so-called framework of the constitutional identity.
  3. The legal system, the manner of appointing judicial councils and the manner of appointing judges in the member states of the European Union differ to a great extent (unless they exist). There is no uniform standard of appointing Judicial Councils in the European law. Therefore, this area falls under the power of the national legislative authority.
  4. Four member states of the EU (Germany, the Czech Republic, Austria and Luxembourg) do not have judicial councils and these states are at the top of the ranking of trust in the justice system. In three member states – Denmark, the Netherlands and Sweden – members of councils are appointed by the government. Representatives of the legislative authority are in judicial councils in the following member states: Belgium, Bulgaria, Spain, France, Croatia, Italy, Portugal, Romania, Slovenia and Slovakia. Representatives of the executive authority – Ireland, France, Italy, Malta, the Netherlands, Portugal, Slovakia and Poland.
  5. Article 47 of the EU Charter of Fundamental Rights cannot constitute a model of monitoring the manner in which members of the National Council of the Judiciary are appointed. The requirement of respect for basic rights guaranteed in the Union law is binding upon member states only if they act within the application of the European Union law.
  6. Pursuant to the judgements of the Constitutional Tribunal, case ref. no. K 5/17 and K 12/18, the model of the National Council of the Judiciary formed in Poland is permitted in the light of the Polish Constitution. It concerns the manner in which the members of the Council are selected by the parliament. It means that the European model resulting from a possible judgement of the CJEU is not compliant with the Polish Constitution.
  7. Effects of the CJEU judgement of 19 November 2019 in the scope of the National Council of the Judiciary. The implementation of the CJEU judgement consists in carrying out an “independence test”. In this way, the effects of the CJEU judgement extend to all courts. The test may be carried out by each court in each case without the necessity to refer to the CJEU (acte éclaire). The test indicated in the CJEU judgement is of a universal nature – it does not only concern the Polish National Council of the Judiciary in its current constitutional form. The judgement gives the possibility to carry out the test in relation to individual groups of judges, i.e. also to judges selected by former compositions of the National Council of the Judiciary, including those whose unconstitutionality in the scope of the term of office was established by the Constitutional Tribunal in the judgement of 20 June 2017, as well as appointed by the PRL State Council at the request of the minister of justice of PRL (also at the request of the minister of national defence); the procedure of selection by the National Council of the Judiciary carried out at its sole discretion was also considered to be unconstitutional by the Constitutional Tribunal (2007) – there is a group of judges in relation to whom these reservations, including infringements at the constitutional level, occur jointly.
  8. The CJEU determined the standard for the assessment of the independence of the National Council of the Judiciary, which consists in the joint examination of circumstances to which the CJEU refers in points 143–151 of the judgement justification. In point 143, the CJEU indicated that “whereas each of the factors indicated by this court may not be subject to criticism on its own and may fall, in this case, under the competences of member states and choices made thereby, their coincidence in connection with circumstances in which these choices were made may lead to doubts as to the independence of the authority taking part in the procedure of the appointment of judges, even if such a conclusion was not reached in the case of considering these factors independently”.
  9. Only the cumulation of all elements included in points 143–151 and other circumstances which may be considered as essential in a specific case by the court assessing the independence of other composition may constitute the ground for the recognition of lack of independence of the National Council of the Judiciary and cause the necessity to examine the independence of the court in a specific case. The elements include: the manner of the establishment and operation of an authority selecting candidates for judges (thus, for example, in the period of PRL – the minister of justice). This assessment should be carried out in the light of the national law and, therefore, the Polish rules, requirements and constitutional standards, which in the scope of the selection of members of the National Council of the Judiciary and judges are unambiguous and confirmed by the Constitutional Tribunal.
  10. The CJEU independence test in the light of the judgement of 19 November 2019 should be applied in such a way that in each case the following should be indicated: the importance and the impact of the manner of the selection of members of the authority selecting candidates for judges and the court functioning (its independence) on the assessment of the maintenance of court independence and the impartiality of a judge hearing the specific case. It does not mean undermining the appointment of judges or the legitimacy of operations of the authority selecting candidates for judges in general (in abstracto).

 

Key: SN – Supreme Court, SA – Appellate Court, SO – Circuit Court, SR – District Court, NSA – Supreme Administrative Court, KRS – National Council of the Judiciary of Poland, PPSN – First President of the Supreme Court, PNSA – President of the Supreme Administrative Court, SSA – Appellate Court judge, SSO – Circuit Court judge, SSR – District Court judge, SNSA – Supreme Administrative Court judge, SSN – Supreme Court judge, WSA – Provincial Administrative Court

NATIONAL COUNCIL OF THE JUDICIARY (KRS)

No.

BEFORE THE REFORM:

AFTER THE REFORM – MAJOR CHANGES

1.

Tasks:

[no changes to the “definition” of the institution]

The KRS is a body appointed to guard the independence of courts and judges. The most important tasks of the KRS are to recommend judge candidates to the President of the Republic of Poland and to recommend judges to be promoted to higher-level courts. Legal ground: Constitution and the KRS Act.

The KRS is a body appointed to guard the independence of courts and judges. The most important tasks of the KRS are to recommend judge candidates to the President of the Republic of Poland and to recommend judges to be promoted to higher-level courts. Legal ground: Constitution and the KRS Act (as amended).

2.

Historical context:

[material changes]

The historical aspect is of significance. The first KRS was appointed in 1989 and it comprised judges of common courts, for which they were appointed by the communist Council of State. The subsequent operation of the KRS was based on a corporate intra-group model of the election of KRS members, which made it hard, or even impossible, for years to hold the judges involved in Communism accountable and to introduce any serious reforms of the justice system.

Abandonment of such a model.

3.

Election of members:

[material changes]

15 out of the 25 KRS members were elected [+ 2 judges default judges stipulated in the Constitution, i.e. the First President of the Supreme Court and the President of the Supreme Administrative Court] by:

  • judges only, in a long, multi-stage procedure, without the participation of any external factor;
  • as a result, the Council was dominated by top-level judges and those who were presidents of courts and of court divisions.

17 out of the 25 KRS members are [including: the First President of the Supreme Court and the President of the Supreme Administrative Court]:

  • independent, non-dismissible judges (they retain a majority of over 2/3 votes – a guarantee that is secured in the Constitution of Poland).

4.

Election process (description):

[material changes]

  • The process used to favour higher-level judges and “functional” judges:
  • The KRS members who were judges used to be elected in a complicated multi-stage non-transparent process:
  1. In the first step, general assemblies of Circuit Court judges elected their representatives, who created another assembly, and they elected 8 KRS members from the members of that assembly.
  1. Concurrently Appellate Courts appointed their respective delegates, and then an assembly of such delegates elected the next two KRS members. Judges of Provincial Administrative Courts also elected their delegates to create one joint assembly together with Supreme Administrative Court judges in order to appoint the next two members.
  1. The last two KRS members were elected by the General Assembly of Supreme Court Judges.

[Conclusion] That process in fact excluded a large group of judges, especially from District Courts, and they are the largest group of judges in the Polish judicial system.

Election exclusively from among candidates who first received the support of: at least 25 other judges or 2,000 citizens.

“Line” judges (especially those from lower-level courts) were given an actual opportunity to co-shape the composition of the KRS – a power that used to be illusory only.

[Conclusion] Every judge who receives the above support has an opportunity to effectively run for KRS / initiate the election process. The procedure was simplified.

5.

Composition (in general):

[material changes]

KRS used to be dominated by judges:

  • of the highest-level courts;
  • functional judges, i.e. ones that held the functions of presidents of courts and of court divisions.

The KRS consists of:

  • representatives of courts of all levels’;
  • no legal (statutory) preferences for judges of the highest-level courts (Supreme Court, Appellate Court, Circuit Court, Supreme Administrative Court);
  • no legal (statutory) preferences for “functional” judges;

6.

Statistical analysis (elected judges):

[material changes]

[Quantitative analysis]:

    1. 2 judges out of 15 from: Supreme Court (13.33% of KRS judges are Supreme Court judges);
    2. 3 judges out of 15 from: Supreme Administrative Court (20% of KRS judges are Supreme Administrative Court judges);
    3. 3 judges out of 15 from: Appellate Court (20% of KRS judges are Appellate Court judges);
    4. 6 judges out of 15 from: Circuit Court (40% of KRS judges are Circuit Court judges);
  • 1 judge out of 15: from District Court (6.66% of KRS judges are District Court judges).

[Quantitative analysis]:

  1. 0 out of 15 judges from: Supreme Court (0%).
  2. 0 judges out of 15 from: Supreme Administrative Court (0%).
  3. 0 judges out of 15 from: Appellate Court (0%).
  4. 1 judge out of 15 from: Provincial Administrative Court (6.66%).
  5. 2 judges out of 15 from: Circuit Court (13.33%).
  6. 12 judges out of 15 from: District Court (80%).

7.

Comparison:

[material changes]

Headcount – active judges (data after: 2016 GUS – Polish Central Statistical Office):

  1. Supreme Court (1) – 83 (people).
  2. Supreme Administrative Court (1) – 110.
  3. Provincial Administrative Court (16) – 504.
  1. Appellate Court (11) – 475.
  2. Circuit Court (45) – 2m759.
  3. District Court (318) – 6,633.

Total: 10,564 active judges of all levels, including:

    674 active judges of special courts (Supreme Court, Supreme Administrative Court, Provincial Administrative Court);

    9,890 active judges of common courts (District Court, Circuit Court, Administrative Court);

Proportions: 93.62% are active common court judges;

    6.38% are: other active judges.

Common court judges (100% – 9,890):

    67.11% are active District Court judges (without Assessors).

    27.19% are active Circuit Court judges;

    4.79% are active Administrative Court judges.

Ratio of District Court judges to all judges (common courts + special courts):

62.79% are District Court judges.

Headcount – active judges (data after: 2018 GUS – Polish Central Statistical Office):

1) Supreme Court (1) – 110 (people).

2) Supreme Administrative Court (1) – 104.

3) Provincial Administrative Court (16) – 475.

4) Administrative Court (11) – 426.

5) Circuit Court (45) – 2,515.

6) District Court (318) – 6,356 (+302 Assessors).

Total: 9,986 active judges of all levels, including:

    689 active judges of special courts (Supreme Court, Supreme Administrative Court, Provincial Administrative Court);

    9,297 active judges of common courts (District Court, Circuit Court, Administrative Court);

    (+ 302 Assessors)

Proportions: 93.10% are active District Court judges (without Assessors);

    6.90% are: other active judges.

Common court judges (100% – 9,297):

    68.37% are active District Court judges (without Assessors);

    25.19% are active Circuit Court judges;

    4.58% are active Administrative Court judges.

Ratio of District Court judges to all judges (common courts + special courts):

63.65% are District Court judges.

8.

Conclusion from static analyses:

[material changes]

The representation of District Court judges on the KRS used to be only 6.66%, while: 62.79% of all judges were District Court judges.

93.34% of KRS members were high-level judges (from the Supreme Court, Supreme Administrative Court, Appellate Court, Circuit Court).

The representation of District Court judges on the KRS is 80%, where: 63.65% of all judges were District Court judges.

20% of the current KRS members are high-level judges (from the Provincial Administrative Court, Circuit Court).

9.

Who has majority on the KRS (professional group):

[changes]

Judges

Even though the KRS consisted primarily of judges elected by other judges, undesired phenomena developed in the KRS (and indirectly in the whole justice system), such as: nepotism, focusing on one’s own interests at the expense of the interest of the citizens, unjustified protection of members from the same group, which built a social image of the KRS as a closed extraordinary professional corporation that does not serve the society but feels above it.

Judges

Judges have the same majority on the KRS as they used to have – this arises directly from the Constitution of Poland.

10.

Who is the main participant of the KRS election process (professional group):

[no changes]

Judges

Judges

Judges also retain material input in the election process – KRS members will be elected exclusively from among candidates who first received the support of at least 25 other judges or 2,000 citizens.

11.

Which judges (from what levels) have the actual majority on the KRS?

[material changes]

Higher-level judges, “functional” judges. The participation of lower-level judges (District Courts) is symbolic and illusory, whereas the majority of judges in Poland are judges of the lowest-level courts (District Court judges).

The number of District Courts in Poland is much higher than of higher-level courts, i.e. Circuit Courts and Appellate Courts.

KRS representation system: inversely proportionate to the representation of District Court judges (District Courts) when compared to the remaining courts.

Nature of the KRS: elite, limited to “higher-level” judges and “functional judges”.

No dependence from and preferential treatment for “higher-level” judges or “functional judges.” Actual participation of the largest group of judges (i.e. District Court judges) in the works of the KRS.

KRS representation system: in principle proportionate to the representation of District Court judges (District Courts) when compared to the remaining judges (from Circuit Courts, Appellate Courts).

Nature of the KRS: in principle, proportionate shares of particular groups of judges from courts of particular levels, more democratic KRS elections: judges from courts of various types and levels are represented.

12.

Election mechanism:

[material changes]

Election:

  • used to leave out the lowest-level judges;
  • not for a joint but for an individual term of office, in violation of the Constitution.

The 15 KRS judges will be elected by the lower chamber of the parliament (Sejm):

  • exclusively from among judges; every candidate needs to receive support of at least 25 other judges or a group of 2,000 citizens;
  • the Act also ensures that at least 40% of the judges elected from the KRS come from among the candidates designated by the opposition.

13.

Candidates (term of office):

[material changes]

Candidates: 

  • are appointed for a joint term of 4 years;
  • cannot be dismissed;
  • the Act guarantees independence (once candidates are elected for the KRS, there is no mechanism for the Sejm to put pressure on KRS members).

14.

Nature of the term of office:

[material changes]

Individual terms of office of 11 out of 15 KRS members, found to be in violation of the Constitution of Poland.

Joint term of office

15.

Duration of the term (Constitution):

[no changes – Constitution of the Republic of Poland]

4 years

4 years

16.

Independence of KRS judges:

[material changes]

[Problematic]: Under the Constitution and statutes, judges are independent from other state institutions but the possibility of dismissing them from their office in fact considerably limits that independence (e.g. economic pressure – loss of office / compensation).

[Stronger than before]: Under the Constitution and statutes, judges are independent from other state institutions. Non-dismissible before the end of the KRS term (once elected, they cannot be dismissed by anyone). As politicians have no influence over the KRS, there is no mechanism of putting political pressure on the KRS’s decisions as regards judge recommendations for common courts or for the Supreme Court or on the judgements subsequently entered by such judges.

The independence of elected KRS members stems from the fact that they cannot be dismissed from office.