How do you measure the bill on the verification of judges prepared by the Ministry of Justice?
Not “verification” but “sanction” – it is simply a very crucial difference. The aim is not to verify judges, but to sanitize justice. The aim is to defend us all from a situation where judgments are handed down all day, where there are doubts as to whether they will last possible verification in Strasbourg.
I understand, but in practice, the task repeals the position of judges who passed the nomination procedure after 2018.
No, that's a incorrect look. It is not about repealing their position – this is not the intent of the bill. The point is that justice should halt producing sentences that can be challenged. The first phase of the improvement does not in itself harm anyone. If there is simply a problem, it is only at the minute of fresh competitions and in the second stage, erstwhile we begin to look at these judges who have been sanctioned and to measure whether they have committed gross violations. Then you can talk about possible disciplinary responsibility.
But there is simply a group of about 400 judges who have gone to profession from another legal professions will cease to be judges, so they will endure real harm.
Yeah, it's called a red group. But if we want to bring that tiger down without harming anyone – it cannot be done. However, they besides have the chance to compete in fresh competitions. And there is simply a anticipation of shielding (no, not highly attractive) remaining in the position of referendar.
We besides have over 1,000 judges who, under this project, will be recalled to lower instances where they utilized to work. This can besides be considered as their harm.
I realize frustration – nothing good to be a subject of sanitation. But at the minute they have a "worst" position as judges of the "statutory". By this fact, it is essential to sanction the justice system, which they order officially and the EU Court of Justice, and the ECHR, and they will at the same time have the position of constitutional judges, which will give them full constitutional protection.
But they say they already have that status.
Not really. erstwhile the bill comes in, they will be able to say, “Now I am fine”. They will be protected by Article 180 of the Constitution and are not at present. The problem is that their promotions, both to the ultimate Court and to the general courts, were carried out on the basis of laws, and these gave the position of "legal judges".
But there is no specified thing as "law judges" in Polish law?
What do you mean, it's gone?
Where does it say that?
And who are the asessors? After all, they had “always” statutory status.
But the Assessors are excluded from this bill.
I am now explaining what is different from the "constitutional" judge, not the scope of the law. If a justice was posted from a territory court to a territory court, his position in a territory court was not constitutional, but only statutory. And what did that mean, even though he was nominated by the president as a territory judge?
He was just a justice posted to a higher instance.
But as a delegated judge, his position was not constitutionally chosen.
However, there is simply a difference, judges from the “yellow group” advanced after 2018 and received full nominations alternatively than delegations.
But they received them utilizing the Act of December 2017 on the KRS, whose constitutional legitimacy is contested. If we presume that the KRS has been shaped defectively, and that is the consequence of the ruling of the ECHR in the case of Wałęsa – then their judicial position is burdened with the same disadvantage.
But that ruling was for the ultimate Court. The bill we are talking about besides includes the judges of the general courts.
This judgement does; but due to the engagement of the defective KRS – which is identical in both cases.
However, did the Court of Strasbourg clearly state the request to remove the judges?
The Court of Strasbourg ruling on a peculiar case (here: L. Wałęsy), but indicates, due to the fact that it is simply a pilot judgment, a systemic mistake which the national legislature must remove. And the ETPC, and the TSUE never straight talk about removing something from the Polish legal system. This is where we should be ourselves.
Then why do you make specified regulations?
Because European courts only indicate what is not allowed, what is allowed, and then we gotta adapt to it. This is the opinion of the Venice Commission. She did not urge the verification of the judges individually, but indicated that their position could not simply be revoked retroactively by a bill.
But in the case of this task we have massivity in relation to the alleged yellow group, or over 1,000 judges.
The Venice Commission has clearly indicated that the annulment of the resolutions of the KRS with ex tunc effect is not possible and that the draft law does not apply this solution. Instead, the effects of these resolutions expire on the date of entry into force of the provisions. In another words, we do not cancel the past – we do not “withhold” nominations, but since the entry into force of the Act, further consequences of these resolutions cease to apply.
The full construction of the ministerial task is suspended on 1 concept that these amendments, which have been introduced by subsequent laws, in peculiar the 2017 National Judicial Council Act, are incompatible with the requirements imposed by the individual rulings of the European courts. The disqualification of the KRS has already occurred in the resolution of the 3 chambers of January 2020.
Is it possible to overlook the fact that the resolution of the 3 chambers of the ultimate Court of 2020 did not request the removal or degradation of judges, but simply indicated the request to measure their judgments in certain cases? Now it went much further, why?
Deconstruction is carried out by brick by brick. The first brick was drawn in Luxembourg, and later came the resolution of the 3 chambers. It was a general resolution which did not come out of the decision on a peculiar court case, but a further consequence of the question referred for a preliminary ruling on 1 judge, to which the TEU replied. On the basis of this, the full structure was built, according to which the present KRS is simply a constitutionally flawed body.
But did the SN give emergence to specified extremist action? After all, the resolution referred to the independency of the jury's compositions, not to the position of the judge.
The current KRS, due to its vocation, has lost its capacity to be a constitutional body referred to in the Constitution. Since this is due to the resolution of the 3 chambers, the conclusions of the CoR on the appointment of judges do not meet the conditions of constitutionality. From the point of view of the bill, specified judges operate within its limits, but do not benefit from constitutional guarantees. This is the consequence of successive decisions of the EU and ETPC. From your point of view, in order to construct this, you gotta have a ruling straight on a peculiar case.
Shouldn't it be?
No, due to the fact that neither the ETPC, which examines individual complaints nor the EU Court of Justice, which rules on matters of Union law, always straight decide on the authorities in the country concerned.
And the Disciplinary Board? That's where it was decided to be eliminated.
Not exactly. The CJEU, answering a preliminary question, stated that the existence of the Disciplinary Board was not compatible with European law. It was only then that the ultimate Court, based on this judgment, ruled that it should be wound up.
I may be besides simple to reason, but it seems to me that in specified a serious substance as deciding the position of 3,000 judges, which will origin systemic shock, there should be no area for interpretation. There should be a clear ruling.
But as you wish, it would mean a crucial extension of the interference competences of the TEU and ETPC.
Let me quote 1 of your entries on social media: in the case of KRS vocation mode, there is an explanation dispute between systemic and linguistic interpretation. Does this mean that the case is not obvious? due to the fact that erstwhile reading the constitution literally, according to Article 184(4), the organisation or selection procedure of members of the KRS determines the law, so it can be read that the legislator can choose the selection procedure of the judicial part of the KRS.
That's right, the KRS is shaped by law. The problem is, it was done wrong. There is simply a request for independency in the Constitution, and the current KRS does not meet that requirement. Her position is statutory, but not constitutional.
Why is the position of the KRS only statutory and not constitutional?
There is simply a provision in the Constitution concerning the composition of the KRS, and the dispute to which you mention concerns its interpretation: whether the choice is made among judges and judges, or between judges, but by another body, e.g. parliament. This is the fundamental difference between the systemic explanation which I consider appropriate and the restrictive explanation (even in relation to the practice to date) and by the other which they apply claiming that Parliament's election is not a constitutional problem.
Why are they wrong?
Strasbourg and Luxembourg clearly indicate that we should strive (this principle) to strengthen the independency and independency of the courts. The explanation you call on allows politicians to influence the formation of the KRS, which limits the principle. The strategy explanation so better protects the qualities essential in the light of the judgments of European courts.
I would like to ask you, what about the rulings of this 1000 challenged by the MS justice project?
The task regulates this meticulously. The principle: the decisions of the judges being sanctioned shall stay valid. Conditional resumption — when, first, the defect of the staff of the court was notified in the course of the proceedings preceding the judgment; second, 1 period for applications for cases decided under an exceptional action.
Let's presume I'm the individual whose case has been settled by specified a judge. I did not comment at the time of the trial due to the fact that I did not know about the problems with the regulation of law, I am an average citizen. Now I find out that any may question their judgments due to the fact that they have submitted comments during the trial, and I cannot. Although I have just become convinced that the composition of the court in my losing case was not independent. Isn't that an inequality towards citizens' rights?
And is there equality before the law erstwhile the conviction was flawed but no 1 reported it?
But this is simply a different situation. individual didn't study the problem, and now they're reporting it, but the legislator says it doesn't number due to the fact that he didn't signal it before.
Is statute of limitations fair and consistent with the rule of equality? There are quite a few akin mechanisms in law, so we cannot talk about unequal treatment.
But is that fair in terms of these 400 judges? A man loses his status, turns out he was never a constitutional judge, and I have no right to competition his conviction due to the fact that I had not previously raised doubts. How was I expected to know there was a problem? Then I'm going to Strasbourg.
You think you can win this? The law is not full fair—it can be proportionate at most. In the case of a individual who did not rise the plea of defection at the trial phase and received an eagle paper and on behalf of the Republic, there is simply a presumption that this judgement is constitutionally consistent and remains in force.
Why is this conviction retained erstwhile the individual who gave it up was not legally a judge?
The presumption of the constitutionality of specified a judgement has not been called into question, so it remains protected by the Constitution. Thus, the interests of those who acted in assurance in its content are safeguarded. But those who raised the charge at the time of the trial did not have specified confidence, but nevertheless submitted to the judgment—the legislator meets them.
The bill is at an early legislative stage, it may be passed by autumn. Does this mean that those who presently have cases in courts before the alleged neo jurisprudences should usage that time and study specified “just in case” doubts about the composition in order to be able to competition the judgement in the future if it is unfavourable to them?
Let me tell you a story: in my housing cooperative there is simply a process in which the president and her lawyer have been sentenced to very advanced penalties. After respective years, appeal proceedings were to take place. The deadline is December. The case was to be dealt with by a justice who is possibly to be covered by the sanitization process. For the sake of certainty of future judgment, the justice excluded herself from the proceedings. The case will so be dealt with in a different configuration in June. This shows that the full legislative mess that has been prepared brings real costs and risks.
In Poland we have 16 million cases, and in a fewer months there may be over a million cases going to court. If there are mass requests that undermine the judicial composition, there will be a immense problem – let alone trust in the full system.
There is simply a Latin proverb: “The foolishness of kings is paid by their nations.” Citizens are already paying for this mess in the judiciary. Sanction of justice is necessary, and quickly.
Prof. Ewa Łętowska is simply a justice of the Constitutional Tribunal at rest, the first Polish RPO.
