The Act on the National Council of the Judiciary K 5/17
1. The essence of the judgment
· The provisions of the Act on the National Council of the Judiciary which concern the election of the members of the said Council from among the judges of common courts and administrative courts are inconsistent with the Constitution;
· The provision of the Act on the National Council of the Judiciary which refers to the terms of office of the members of the said Council elected from among the judges of common courts – construed in the way that the term of office of such a member has an individualised aspect – is inconsistent with the Constitution.
2. The details of the determination
On 20 June 2017 at 12.30 p.m., the Constitutional Tribunal considered an application filed by the Public Prosecutor-General with regard to the way of regulating the procedure for electing judges to be members of the National Council of the Judiciary as well as shaping the provisions on the terms of office of elected members of the said Council in the Act on the National Council of the Judiciary.
The applicant presented the following basic allegations:
1) the unconstitutional way of regulating the procedure for electing judges to the National Council of the Judiciary, which undermines the independence of judges and the equal status of judges;
2) the defective shaping of provisions on the terms of office of elected members of the Council, and the continuous and common practice related thereto which breaches constitutional requirements.
The Tribunal took account of both allegations of the Public Prosecutor-General and adjudicated that:
1. Article 11(3) and (4) in conjunction with Article 13(1) and (2) of the Act of 12 May 2011 on the National Council of the Judiciary is inconsistent with Article 187(1)(2) and Article 187(4) in conjunction with Article 32(1) of the Constitution.
2. Article 11(2) in conjunction with Article 12(1) of the Act mentioned in point 1 is inconsistent with Article 187(1)(2) and Article 187(4) in conjunction with Article 32(1) of the Constitution.
3. Article 13(3) of the Act mentioned in point 1 – construed in the way that, in the context of the members of the National Council of the Judiciary elected from among the judges of common courts, the term of office of such a member has an individualised aspect – is inconsistent with Article 187(3) of the Constitution.
As to the remainder, the Tribunal decided to discontinue the proceedings.
The ruling was unanimous.
3. The justification for the judgment
The Tribunal stated that the challenged provisions differentiated among judges in an inadmissible way, by affecting their passive electoral rights in elections to the National Council of the Judiciary. The differentiation concerned:
the way of electing members to the National Council of the Judiciary (different procedures for electing judges from among the judges of common courts and from among the judges of other courts, i.e. the Supreme Court, administrative courts and military courts);
· the way of electing judges who are members of the National Council of the Judiciary from among the group of common-court judges (two separate procedures).
According to the Tribunal, Article 187(4) of the Constitution provides the legislator with a wide scope of discretion when it comes to devising a procedure for electing members of the National Council of the Judiciary. However, the limits of that discretion are set by the wording of constitutional provisions. On the basis of Article 187(1)(2) of the Constitution, the passive electoral right in this context is exercised by the judges of: the Supreme Court, common courts, administrative courts, and military courts.
Since the Constitution does not specify any criteria that the legislator could adopt to differentiate among judges mentioned in Article 187(1)(2) as regards their possibility of standing for elections to the National Council of the Judiciary, the legislator may not determine such criteria freely by statute. Indeed, the composition of the said Council falls within the ambit of matters required to be specified by the Constitution, and hence the composition may not be modified without constitutional authorisation. The legislator is obliged to devise a mechanism for electing members to the National Council of the Judiciary in such a way that the proper representation of judges could be guaranteed, without introducing additional criteria within the scope ratione personae (see also: the Tribunal’s judgment in the case ref. no. K 25/07).
When analysing the other allegation, the Tribunal identified the problem differently than the applicant did. The Tribunal did not agree with the assertion that the problem was the legislator’s omission. Instead, it deemed that the problem was an erroneous, continuous practice of applying certain provisions where the practice had resulted in a well-established, though unconstitutional, interpretation of the provisions of the relevant statute. The Tribunal held that it was competent to examine the unconstitutional interpretation, which had been done in the past.
Therefore, in the Tribunal’s view, it does not follow from Article 187(3) of the Constitution that the members of the National Council of the Judiciary are chosen individually for a set term of office (unlike, for instance, in the case of the judges of the Constitutional Tribunal). According to the Tribunal, the wording of the constitutional provision indicates that all elected members of the said Council have one common term of office.
The group of Council members meant here comprises: 15 judges of particular courts, as well as four Sejm Deputies and two Senators. Differentiation at the level of statutory norms as regards the terms of office of elected Council members results in an infringement of Article 187(3) of the Constitution (which stipulates that the term of office of the elected members of the National Council of the Judiciary lasts four years).
The Constitutional Tribunal based its analysis of the allegations raised by the Public Prosecutor-General on the evaluation of the systemic position of the National Council of the Judiciary. The Tribunal pointed out that the said Council was neither part of the judiciary nor a representative thereof. Indeed, the Council constitutes an authority that does not fall within the simple rendering of the principle of the separation of powers, as referred to in Article 10 of the Constitution.
The constitution-maker placed that authority in between the three branches of government (the legislature, the executive, and the judiciary), thus turning it into an instrument for the realisation of the constitutional principle of balance between the branches of government, as well as a forum for cooperation and balance between the said branches.
Due to the above-mentioned systemic position of the National Council of the Judiciary, as well as its tasks and powers, it is impossible to apply the same guarantees with regard to the Council as in the case of the constitutional authorities of the judiciary. The legislator has a wide scope of discretion when it comes to determining the organisational structure of the National Council of the Judiciary, the remit of its activity, its modus operandi, as well as a procedure for electing its members.
However, the legislator’s discretion is limited by the constitutional tasks of the Council, the composition of the Council specified in the Constitution, as well as the requirement that the elected members of the Council are to be chosen for a fixed term of office. In the last-mentioned instance, the interpretation of Article 187(3) of the Constitution must be consistent – the term of office of all elected members of the Council must be rendered jointly (a joint term of office), as only such an interpretation of the said term of office is consistent with the Constitution.
The hearing was presided over by Judge Michał Warciński, and the Judge Rapporteur was Judge Mariusz Muszyński.