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The election of members to the National Council of the Judiciary from among judges; an appeal against the said Council’s resolution on an appointment to the office of judge K 12/18

On 25 March 2019 at noon, the Constitutional Tribunal publicly delivered its ruling on joined applications filed by the National Council of the Judiciary and a group of Senators with regard to provisions on the appointment of members to the National Council of the Judiciary as well as the appellate procedure for appealing against the said Council’s resolution on an appointment to the office of judge.

The Constitutional Tribunal adjudicated that:

1.      Article 9a of the Act of 12 May 2011 on the National Council of the Judiciary (Journal of Laws – Dz. U. of 2018 item 389, as amended) is consistent with Article 187(1)(2) and Article 187(4) in conjunction with Article 2, Article 10(1) and Article 173 of the Constitution of the Republic of Poland as well as with Article 186(1) of the Constitution;

2.      Article 44(1a) of the Act referred to above is inconsistent with Article 184 of the Constitution.

Moreover, the Tribunal discontinued the review proceedings as to the remainder.

The ruling was adopted by a majority vote.

The subject of the Tribunal’s review comprised two groups of provisions: the first one pertaining to the manner of appointing judges to the National Council of the Judiciary; and the second one concerning the appellate procedure for appealing against the said Council’s resolutions on refusal to present a candidate for a judge of a common court, the Supreme Court or the Supreme Administrative Court to the President of the Republic.

The remit of the application comprised the following detailed constitutional matters: (1) the admissibility of the Sejm’s election of judicial members to the National Council of the Judiciary, in particular in the light of Article 187(1)(2) and Article 187(4) of the Constitution; (2) the juxtaposition of two constitutional rights – namely the right to a fair trial (Art. 45(1) of the Constitution) and the right of equal access to public service (Art. 60 of the Constitution) – with the constitutional procedure leading to the appointment of a judge as the outcome of the Polish President’s exercise of his/her prerogative (Art. 179 in conjunction with Art. 144(3)(17) of the Constitution).

Moreover, the challenged regulatory scope constitutes space for specifying the constitutional principles of the political system which are set out in Chapter I of the Constitution: the principle of a democratic state ruled by law (Art. 2), including the formal aspects of the rule of law (Art. 7) and the principle of the separation and balance of powers (Art. 10), as well as the general principles expressed in Chapter VIII of the Constitution, i.e. the principle of the independence and separateness of the judiciary (art. 173) and the principle of the independence of judges (Art. 178).

The Tribunal deemed that although the National Council of the Judiciary is obviously a constitutional body, the laconic wording of the constitutional provision pertaining to the Council indicates that the constitution-maker had envisaged that key issues related to the functioning of the Council are to be regulated by statute, expressing in the Constitution merely a certain minimal standard of the constitutionality of the Council. The fact of representing the legal profession arises not from the mode of selecting members of the Council, but from the fact that a majority of members are selected from judges, which is guaranteed by the Constitution; hence, the Tribunal ruled Article 9a of the Act on the National Council of the Judiciary to be consistent with Article 187(1)(2) and Article 187(4) in conjunction with Article 2, Article 10(1) and Article 173 as well as with Article 186(1) of the Constitution.

The Tribunal noted the unusual character of the solution provided for in Article 44(1a) of the Act on the National Council of the Judiciary. The referral of cases mentioned therein for consideration is justified neither by the procedure in accordance with which they are considered nor by the characteristics of the organisation of the Supreme Administrative Court, which do not predestine the said Court to examine cases concerning the Council’s resolutions; in addition, the ‘type’ or ‘nature’ of the Council’s resolution referred to in Article 44(1) of the Act  on the National Council of the Judiciary does not place such resolutions within the scope ratione materiae of administrative courts, since, in principle, the power to review those resolutions has been vested in the Supreme Court, and merely in the case of lex specialis provided for in Article 44(1a) of the Act on the National Council of the Judiciary, an appeal is to be considered by the Supreme Administrative Court. This exemplifies a kind of hybrid proceedings – which is unknown in the Polish legal system – where it is not courts of different instances but courts of different types that consider the same cases on the basis of the same provisions with regard to different persons. Therefore, the Tribunal held that Article 44(1a) is inconsistent with Article 184 of the Constitution.

The Presiding Judge of the adjudicating bench was the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the Judge Rapporteur was Judge Justyn Piskorski.