Socio-political background of the reform of the National Council of the Judiciary

The international community accuses the Republic of Poland of undemocratic, biased and politicized solutions in the context of changes in the judiciary, and hence the regulations on which the National Council of the Judiciary is based. The rhetoric common in Europe brings to the sidelines the institutional and legal solutions that have been taking place in Poland in recent years. Poland is considered to be one of the weakest democracies within the European Union. At the same time, the Republic of Poland, according to the democracy index from 2020, was described as “defective democracy”. It is worth noting, however, that most of the European Union states, including the countries of the “Old Union” , were classified in this category too by the same ranking. Moreover, compared to the previous ranking, Poland moved up in the ranking by as many as 7 positions, while a decrease was recorded by Lithuania (6 positions), Slovakia (5 positions), France, Portugal and Malta (4 positions) .

Democracy is a concept that is not regulated by the European Union in its treaty solutions. Each sovereign state, functioning within the EU sphere as Member State, has the ability to autonomously shape its own system. Such national legal system is adapted to the particular needs of a given country, it is based on the social, political and economic environment, taking into account its own legal traditions (legal culture). The state of democracy in a given state reflects the level of citizens’ satisfaction with its level. In 2019, the Pew Research Center conducted a survey measuring the above ratio. Poland came third among the surveyed countries. Below the Polish position in the ranking there are flagship states of the European Union, whose representatives have been criticizing the level of democracy in Poland, as well as former Eastern Bloc countries, which have a lot in common with Poland. An interesting comparison is finally the fact that in the case of Poland, the satisfaction index increased by 13 percentage points, comparing the result to the survey conducted already in 2009.

In Poland, the Ministry of Justice was aware of the huge need for introducing fundamental changes within the judiciary, and thus also in the National Council of the Judiciary. It has been present in the political discourse for decades. Public opinion polls conducted over the years indicated that up to 80% of Poles waited for such changes. This need was dictated by the lack of any reforms since the Polish Round Table Agreements. It should be remembered that they were never revisited even in the debate on the 1997 Constitution.

1. France, Portugal, Estonia, Italy, Malta, Czech Republic, Cyprus, Slovenia, Belgium, Greece, Latvia, Lithuania, Slovakia, Croatia, Romania: https://pages.eiu.com/rs/753-RIQ-438/images/democracy-index-2020.pdf?mkt_tok=NzUzLVJJUS00MzgAAAF7kTr9_G9MZWyjYWyBTmFKaXm3ISy_qyXd51ch2hyvYiRVQphW9t2YnemlaU6SDRttbMAhVxFABsnmqEZOwuZ3mKX3QqwgTeTt2_maIOQrJSYXeg [15.03.2021].

2.  Ibidem.

3. The study covered 14 European Union states (as for the year 2019), as well as Ukraine, Russia and the United States. Result: 66% satisfied and 31% dissatisfied. 

4.Germany (4th place), France (9th place), Spain (10th place), Italy (11th place), Great Britain (12th place), Report: European Public Opinion Three Decades After the Fall of Communism, Data taken from: 

European Public Opinion Three Decades After the Fall of Communism, https://www.pewresearch.org/global/2019/10/14/democratic-satisfaction [15.03.2021].

5. Ibidem.

The NCJ is not a judiciary body, however, it is genetically related to it. Before the discussed reforms, the need for introducing an element of democratic control was announced in the case of the process of electing judges to the National Council of the Judiciary with directing the elections to parliament, as well as the participation of the public. This idea met with considerable criticism from both the legal and opposition milieus. This was not surprising, as the previous solutions allowed the “judiciary caste” to elect representatives to the National Council of the Judiciary among themselves, which in fact gave them full control to this professional group in the following appointments of judges. In this matter, Polish society was not so clearly defined. A similar percentage of the respondents were both in favour of changes and against them. Additionally, a similar number of respondents indicated that they had no established opinion on that subject.

In the course of work on the legislative changes, a number of comments from the parliamentary and non-parliamentary opposition were taken into account. However, the reforms adopted in 2017 were criticized even by those milieus that had previously encouraged reforms of the judiciary. Such critique focused mainly on the allegation of violation of the balance of powers. Understandably, too little independence of the courts could contribute to the disturbance of harmony and balance, but too much independence could in turn undermine the foundations of democracy, being one of the most important constitutional principles in the Polish legal order.

Within the full and equivalent separation of powers, the jurisprudence doctrine assigns great importance to the independence of the judiciary, as well as the independence of judges. Therefore, a commonly accepted solution is to search for bodies that guarantee the above balance. It is indicated that their establishment is a sine qua non condition for maintaining independence. With regard to the democratic order and control over the judiciary exercised by the National Council of the Judiciary in Poland, it should be emphasized that there are states whose constitutional systems do not provide for an authority that acts as a guardian of independence. The catalogue of such countries includes, for example, Germany, Austria, the Czech Republic and Latvia. Moreover, it does not affect the suspicion on the state of democracy in those countries. Judges are appointed by the ministers of justice (so the executive power) or other collective bodies.

In this case, a perfect example would be Sweden (assessed by the above-mentioned democracy index as “full democracy”, having the 3rd place in the world), appoints its Advisory Council (a body with similar powers to the NCJ) with the help of the government. In France, the Supreme Judicial Council is an advisory body to the President on the matters of the judiciary. Though in this case, the head of state is the guarantor of independence. He or she heads the Council, supplemented by the minister of justice and members elected by the president, as well as the chairman of both houses of parliament and the General Assembly of the Council of State. Spain in turn presents an equally interesting solution. As in Poland, the constitutional law does not define the procedure for selecting members of the Council of the

6. Godlewski, Krajowa Rada Sądownictwa, in: Ochrona praw i wolności. System instytucjonalny w Rzeczypospolitej Polskiej, Kruk M., Olszówka M., Godlewski M., Jarosz M., Laskowska M., Zaleśny J. (ed.), Warsaw 2019, p. 201

7.  37% assessed the idea as bad, 33% – people supporting the idea of electing judges to the National Council of the Judiciary by the parliament, 30% – do not have any opinion on this subject:

Społeczne oceny wymiaru Sprawiedliwości, Komunikat z badań nr 31/2017 CBOS, Warsaw, marzec 2017. 

8. Art. 64(1) of the Constitution of France: http://libr.sejm.gov.pl/tek01/ txt/konst/francja.html [15.03.2021]; R. Errera, Sur le Conseil supérieur de la magistrature français: réflexions et perspectives. Die Shweizer Richterzeitung, Justice–Justiz–Giustizia 2009, nr 2. http://rogererrera.fr/institutions_judiciaires/docs/errera_csm-fr. pdf [15.03.2021].

Judiciary, which is regulated by an organic law. Art. 122 of the Spanish Constitution indicates that the entire composition of the Council is elected by the Cortes.

These examples do prove that the regulations on the National Council of the Judiciary in Poland are consistent with the regulations in other European states, as well as they do not disturb the entire process of democratization of the state authorities.

The overriding aim of the National Council of the Judiciary Act is the amendment regarding the selection of judges who are to perform functions within this particular body. The changes were aimed at democratizing the process of selecting members of the Council by increasing transparency, as well as allowing the public debate on candidates at the public sphere. At the outset, it is worth emphasizing that the 1997 Constitution does not indicate the method of selecting judge members. It only emphasizes that the choice should be made from among the judiciary. The body which was to make such a choice remained a specific matter to be regulated by an additional law. The presumption that the judiciary community itself was obliged to do so seems actually wrong. Regulations under the 2011 Act, stating that 15 judges of the NCJ are elected by general assemblies of judges, has been subject to criticism for many years. This system was based on a corporate model that distinguished judges who performed their functions in the higher courts. The previous solution (Art. 11 of the 2011 National Council of the Judiciary Act) regulated that the elections were made by assemblies of judges or their representatives divided into: 1) judges of the Supreme Court, administrative and appeal courts – 6 seats; 2) judges of military courts – 1 seat; 3) judges from individual districts – 8 seats.

Such a solution resulted in a deeply corporate character of the composition, favoured the dominance of judges without the possibility of consulting their decisions with the public opinion. The adopted system meant that the judges in total accounted for over 2/3 of the Council’s composition. This solution finally led to the actual subordination of the competences of this body, which was supposed to guard the independence of the judiciary.

The 2017 Act introduced a mechanism for the appointment of judges – members of the Council, who are elected by the Sejm by a qualified majority of 3/5 votes. At this point, it is impossible not to refute the accusations of the representatives of the European Union, the judiciary environment and the opposition about the politicization and the “monopoly of choice”. A majority adopted in this way means that members of the Council are appointed not only by the parliamentary majority (politicians representing the government), but the members’ election requires the agreement of a wider parliamentary group. Therefore, it constitutes a compromise between the political parties standing on both sides of the political scene. This solution is anchored in Art. 4 of the Polish Constitution, which indicates that the supreme authority belongs to the nation. The nation may exercise it through its representatives (indirectly) or directly.

It is also worth emphasizing that, in accordance with the democratic state of law, it has been assumed that the procedure of nominating candidates involves groups of at least 2,000 adult citizens with full legal capacity, as well as enjoying full public rights. Thus, the Polish citizens have an influence on the election of judges through both direct and indirect democracy, which

9.  Art. 122 of the Constitution of Spain: http://libr.sejm.gov.pl/tek01/txt/konst/hiszpania.html [15.03.2021], Comentarios a la Constitución Española, XXX Aniversario, Maria Emilia Casas Baamonde, Miguel Rodriguez-Pinero y Bravo Ferrer (directores), Mercedes Perez Manzano, Ignacio Borrajo Iniesta (coordinadores), 2008, p. 1896.

10. The National Council of the Judiciary Act of 12 May 2011.

11. Skotnicki, Problem konstytucyjności składu obecnej Krajowej Rady Sądownictwa w Polsce, „Acta Universitatis Lodziensis” 2020, nr 93, p. 51.

is also guaranteed by the Constitution. The number of citizens is not prohibitive thus it allows to put forward a candidate from outside parliamentary milieus. The participation of citizens in this process not only confirms strengthening of the democratic standards in the election of judges-members of the NCJ, but also gives them greater control over the entire process. The transparency of the entire selection process is also enhanced. As a result, the names of the candidates became widely known to citizens. Therefore, the system of concealing candidates and forcing particular names by the judicial elite was finally made far more difficult.

The new law also stipulated that the mandate of all judges of the National Council of the Judiciary would expire upon the election of new members. The body itself does not have a term of office. Those are the judges who are appointed for a certain period of time, while not the body itself. The law makes it possible to adjust their terms of office so that the new Council could start operating unwaveringly. It is also an expression of the democratization of the composition of the National Council of the Judiciary. This solution, nonetheless, is not a novelty. Here the ruling of the Constitutional Tribunal can be recalled which explains that the shortening of the term of office of persons currently in service may be applied due to an important public reason. Consequently, it is difficult to understand the criticism of introducing such democratic solutions.

At this point, it is also worth underlining again that the NCJ does not operate within the administration of justice, nor is it an organ of the judiciary. Of course, the way it is shaped, as well as its tasks, which include determining the path of professional advancement of judges, monitoring the observance of professional ethics or overseeing the organization of the work of the justice system, connects it with the judiciary. However, thanks to the solutions of the constitutional matter, it is a highly autonomous body that goes beyond the tripartite division of powers. Therefore, there can be no question of disturbing the doctrine of separation of powers with the principles of division of power its balances, because the National Council of the Judiciary appears somewhat outside the system. This argument seems to explain the newly adopted formula for the election of judges-members of the National Council of the Judiciary with the constitutional role assigned to this body. It should also be emphasized that the term of office of 7 out of 15 members of the NCJ expired only at the beginning of 2018, and the first meeting of the NCJ was convened by the First President of the Supreme Court. It was in fact the actual confirmation that the appointment of a new composition complies with the legal order. It should also be added that the shortening of the term of office, following the introduction of the amended act, shortened the term of office of only two members of the body, which did not affect the decisions of the National Council of the Judiciary.

12.  The Constitutional Tribunal Judgement of 18 July 2007, K 25/07.