Opinion of the Association of Prosecutors Lex Super Omnia on the draft law amending the ultimate Court Act and any another laws (print No 902)

Warsaw, 21 January 2023.

The association of independent prosecutors Lex Super Omnia negatively assesses the draft law amending the ultimate Court Act and any another laws noting that the proposed amendments do not only have anything to do with restoring the regulation of law and implementing, "milestones", but above all are incompatible with the Constitution of the Republic of Poland. We categorically disagree with the content of the justification for the draft Act in question, which states that the Act aims to clarify the principles of disciplinary liability of the ultimate Court judges and the judges of the general, military and administrative courts, and that the proposed amendments are resultant and orderly. It is not possible to consider as a reasonable assertion by the drafter that the task besides clarifies the procedure of the alleged "test of the impartiality of the judge" introduced by the Act of 9 June 2022, which is intended to meet the implementation of the "milestones" and, moreover, to increase the independency and impartiality of the judiciary.
The proposed changes disqualify not only their unconstitutional nature, but besides their appearance in the context of the recovery of the situation in the Polish judiciary, which present lacks prospects for a real restoration of the regulation of law. The text of the proposed amendments is nothing more than an effort to show the European Commission that everything has been done to get in return for the reinstated regulation of law the funds from the National Recovery and Immunity Plan. However, in our opinion, there is no reform, and even more an effort to resolve the dramatic situation of the Polish justice system, which, as a consequence of pseudo-reforms aimed at subjugating the judiciary of the executive and legislative authorities, is present on the verge of a judicial failure coupled with an ongoing attack by politicians on independent judges and independent courts. The proposed amendments to the ultimate Court Act and another laws that are expected to reconstruct the regulation of law and fill in the "milestones" are critical and we point out that they do not solve any problems in the judiciary.
First, in view of the content of Article 184 of the Constitution which specifically defines the competence of the Chief Administrative Court, it is unacceptable to postpone the disciplinary accountability and to let the ultimate Court judges, general courts, military and administrative courts to be held liable or temporarily arrested, as well as as judicial assessors to the ultimate Administrative Court. The arguments of the representatives of the executive and legislative authorities that appear in the public space that it is completely acceptable to extend the powers of the body set out in the Constitution by means of a bill, we perceive as a complete deficiency of respect for the rules of the democratic regulation of law. specified an extension of competence is only possible if the basic law itself allows it. However, Article 184 of the Constitution explicitly, in item and in a way that does not let any over-interpretation and additions, indicates that the Chief Administrative Court and another courts of administration exercise, within the scope of the Act, control over the activities of public administration. So does the projecter respect the courts as public administration bodies, with all of these consequences, including submission to the executive authority? Should we consider that the courts in Poland are no longer separate from the executive and legislative authorities of the judiciary and the public administration subordinate to them? The absurdity of the proposed solution discovers the real intention of the task promoter to subject independent judges and independent courts to enforcement alternatively than to solutions to the problem which is the consequence of unsuccessful reforms in the judiciary. The present Article 184 of the Constitution besides states that the control of the activities of public administration besides includes the determination of the conformity of resolutions of local government authorities and of the normative acts of local government authorities. Therefore, the basic law does not give any anticipation to extend the scope of the cases in the jurisdiction of the ultimate Administrative Court, and even more so the anticipation of ruling in the areas proposed in the draft.
The question so needs to be asked, what does this task exposure the judiciary to? The answer leads to the conclusion that precisely the same thing as the amendments made to the ultimate Court Act to date or to the General Courts and another laws. Therefore, whether it refers to a disciplinary or immunity settlement of judges, the plan of a disciplinary chamber or a professional accountability chamber, or, as in the case of the draft, the ultimate Administrative Court in each of these situations will decide or decide an authority which has no constitutional authority to do so. However, in the case of the proposed amendments, it will not only consequence from the fact that about 30 percent of the composition of the ultimate Administrative Court is present the persons appointed in that court by a procedure before the neo-krs, whose position as an authority not appointed in accordance with the Constitution no longer has any doubts about the full pro-democratic legal environment, but besides the fact that the ultimate Administrative Court under Article 184 of the Constitution has no competence to do so.
The effects of specified a solution will not should be long, due to the fact that they will be identical to the non-existent disciplinary chamber in the ultimate Court. The Polish State awaits retrials before ETPCz. It should besides be recalled here that the obligations arising from ,,milestones’ indicate the shift of competence in the disciplinary accountability of judges to another Chamber of the ultimate Court which will comply with the criteria of Article 19 of the EU Treaty and not to the Chief Administrative Court, which in this respect has no constitutional authority.
We so believe that the most serious and automatically disqualifying, due to the fact that the solution proposed by the drafter, contrary to Article 184 of the Constitution, is the intention to transfer to the Chief Administrative Court the powers which it cannot fulfil under the basic law.
The second crucial issue, which clearly indicates that the task does not comply with the requirements, the milestones, is the fact that the Act does not repeal the provisions of the ,,Bailiff Act’, including, in particular, Article 107(1)(3) of the Law, the law on the strategy of common courts, which provides for the anticipation of bringing a disciplinary action against a court for misconduct involving actions that call into question the existence of a service relation of a judge, the effectiveness of the appointment of a judge, or the appointment of a constitutional body of the Republic of Poland. The deficiency of a solution in this respect continues to exposure the insufferable judges to initiating and conducting disciplinary proceedings against them whenever they take the action referred to above. Meanwhile, caring for the exercise of citizens' rights to an impartial and insufferable court is the most crucial component of the regulation of law. We have repeatedly pointed out as an association that, in the face of the constitutional crisis and the competence of the constitutional authorities of the state, including the current neo-KRS, questioning the effectiveness of the judges appointed by that body (also in promotion) by the judges appointed in a correct manner, which comes to be ruled in a composition with judges appointed defectively, is in fact evidence of the fulfilment of the latter's judicial oath and expression of the unwavering attitude of the guardians of the Constitution. Therefore, specified action cannot be assessed as a disciplinary measure, as it is in a situation of unprecedented crisis of the regulation of law in our country that is to warrant citizens that their case will be recognized by an independent and impartial court.
In conclusion, we note that the absence of a proposal to repeal the provisions introduced by the Kagan law in this Article 107 § 1 point 3 of the Law on the strategy of the General Courts shows that there is no sincere intention on the part of the drafter to prosecute the real process of restoring the regulation of law. The task does not supply a real chance to warrant citizens their right to an independent and impartial court. It will proceed to be possible to hold a disciplinary justice liable, who, in order to warrant the exercise of the right of the parties to settle his case by an independent and impartial court, will question the position of a justice who has been appointed by an unconstitutional body, the neo-KRS. It should be recalled at this point that, on 19 November 2019, the TEU (C-585/18, C-624/18, C-625/18) expressed its views that an authority which is not an independent and impartial court may be referred to erstwhile the nonsubjective circumstances in which the authority was established and its characteristics, as well as the way in which its members were appointed, are likely to rise legitimate doubts as to its independency from external factors, in peculiar the influence of the legislative and executive authority. The designer in this substance does not change anything, nor does the situation of the judges to whom disciplinary proceedings are conducted for the above-mentioned delicacy.
When discussing the plea of non-compliance with the draft amendments concerning the repeal of Article 107(1)(3) of the Law on the General Courts, mention should be made to a kind of contradiction between the content of that provision and the proposed amendment of Article 72(6) of the Law on the ultimate Court and its equivalents in the laws on universal, military and administrative courts. According to this proposal, it is not a disciplinary offence to examine the compliance of the justice with the requirements of independency and impartiality and to establish by law. The question so arises as to how, without being exposed to disciplinary responsibility, the examination of the requirements of independency and impartiality can be referred to in this situation and the establishment under the law, since the initiating component of the examination of these requirements is first of all to challenge the effectiveness of appointing a judge, e.g. to the court in which he decides, in view of the participation in the procedure of appointment by a neo-KRS body, whose power as constitutional authorities of the Republic of Poland is disputed for apparent reasons. The request of independency and impartiality requires, among another things, to examine whether a justice has been appointed in a way that guarantees his independency and impartiality. As already mentioned above, an authority which is not an independent and impartial court may be referred to erstwhile the nonsubjective circumstances in which the authority was established and its characteristics, as well as the way in which its members were appointed, may give emergence to reasonable uncertainty in the minds of the individuals as to the independency of that authority from external factors, in peculiar the influence of the legislative and executive authority. The starting point for a genuine and fair examination of independency and impartiality and the establishment under the law will therefore, in most cases, be to challenge the circumstances surrounding the appointment or promotion of a judge. It is so hard to examine the fulfilment of the abovementioned requirements, which, in accordance with the draft Article 72(6)(3) of the ultimate Court Act, is not a disciplinary measurement and at the same time do not exposure itself to the disciplinary liability referred to in Article 107(1)(3) of the Law on the General Courts. If the independent is not a court in which a justice appointed by a non-constitutional body sits, in this case the neo-KRS argument in the application for the conduct of, the impartiality test, will necessarily be based on questioning the constitutional authority of the Republic of Poland, and so the effectiveness of appointing a judge. In short, it can be said that, in order to carry out the procedure, an impartiality test, first of all, actions will be needed, which proceed to be pursued by a disciplinary delicacy. The procedure, the impartiality test, has been provided for cases where impartiality, independency and the establishment of a justice under the law are contested. The maintenance of the law on the strategy of common courts in Article 107(1) of the Act causes that not only the dissonance already indicated with the proposed amendments, but it effectively excludes the anticipation for the competent court to initiate an examination of independence, impartiality and the establishment of a justice on the basis of the law, whenever there are doubts at the basis of the initiation of, an impartiality test, it will be essential to show an action consisting in questioning the existence of a service relation of a judge, the effectiveness of appointing a judge, or the power of a constitutional body of the Republic of Poland.
Therefore, it should be firmly stressed that nothing changes the proposal to grant the anticipation of initiating a procedure, a test of the impartiality of judges, by the competent court alongside the parties or participants in the proceedings. The solutions adopted in the current ultimate Court Act and the Laws on the General Courts, Military Courts and Administrative Courts merited and inactive deserve criticism, for example, for reasons specified as unclear grounds for directing the application, the indeterminate and leaving besides wide an explanation margin for the content of the application, the reservation of the form of covert proceedings, while guaranteeing to the justice whose application concerns the right to be heard and the veiled "warning" for attorneys to address notifications to professional authorities in the event of rejection of the application. The provisions relating to ,, impartiality test’ are unacceptable due to the illusoryity of their warrant nature, not to mention their vague relation to the provisions laid down in the C.E.C. and the C.E.C. on the exclusion of a justice due to circumstances of specified kind that it could give emergence to reasonable uncertainty as to its impartiality in a given case. Our critical assessment of the changes already adopted as a consequence of the presidential draft of the amendments relating to the alleged ‘ impartiality test’ does not alter, for the reasons set out above, the changes presently proposed by the drafter granting, alongside the organization or associate to the proceedings, the anticipation for the competent court to apply for, the impartiality test.
In summarising the amendments to Articles 29(5) and (7), (8) and 14 to 25, Article 72(6)(1) and (3) and Article 73 of the Act on the ultimate Court, as well as Article 23a(4), § 7a, § 14, Article 37(4) and (3), Article 39a(1)(b), (2), Article 39a(2a), § 4 of the Act on the strategy of Military Courts, Article 42a(3)(a), § 6(8), § 6a, § 13, Article 107(3)(c) and (3), Article 110(1)(b) and § 2, 110(2a), § 3, Art. 112(c), Article 114a(3), Article 114a(3) of the Law on the strategy of Universal Courts, and Article 5(3)(c), § 3a, § 3a, and § 9, 110§ 2a, § 2a, § 3, § 112c, Article 114a and § 3 of the Law on the Consistency of Public Courts, Article 5, § 3a, Art.
We besides point out that about 30 percent of the judges presently sitting on the ultimate Administrative Court were appointed to this function by a procedure conducted before the politicized neo-KRS. Therefore, for the same reasons as for persons appointed to the ultimate Court, the ruling of specified persons in disciplinary and immunity matters will be contested before the EU Court of Justice and the ECHR.
Undoubtedly, 1 of the most hard applicable problems that will arise in the event of the entry into force of the proposed amendments will besides be the deficiency of procedural preparation of the judges of the ultimate Administrative Court to settle the disciplinary matters thus assigned to them, while the Act would enter into force only 14 days after its announcement. The position of the judges of the ultimate Administrative Court can be illustrated by comparison with the situation of doctors, who would abruptly be recommended to execute open-heart cardiosurgery surgery. Each doctor has completed medical studies, but not everyone will execute specified surgery. It should be borne in head that judges who have been specialised in administrative law throughout their professional lives will be subject to disciplinary proceedings by another judges based mostly on or close to criminal proceedings. This fact is worrying, and the task promoter seems not to realize the seriousness of the situation by reserving only 14 days of vacatio legis in Article 11 of the bill. It does not see any difference between judges who have been specialised in administrative procedures for years and civilian justices or carnists, which clearly shows a scandalously low level of cognition of the different areas of law and, consequently, the recklessness associated with the deficiency of forward-looking reasoning on the effects and quality of judgments given in this case.
Nor does the drafter of the law of the citizens themselves respect the court and the reasonable time limit for considering their cases, due to the fact that he completely underestimates the consequences of shifting disciplinary and immunity cases to the ultimate Administrative Court. This will be for the citizens whose cases have been brought before this court, meaning an apparent extension of the already protracted, due to the deficiency of real reforms in the judiciary, time limits for settling their cases. The judges of the ultimate Administrative Court will receive fresh cases for their papers, which they will request to read and run, and this will naturally mean a simplification in the rate of designation and settlement of administrative matters to which the ultimate Administrative Court has been appointed in the Constitution. All of this will take place in the face of the request to know a completely fresh and unpractised procedure by the judges, as well as the deficiency of organisational preparation, as it should be remembered that the fresh duties will besides be borne by secretarial staff, and in the justification of the deficiency of any information on the possible increase in the administrative staff in the ultimate Administrative Court and the safeguarding of the appropriate financial resources essential to handle disciplinary proceedings. No rational evaluation of the organisational, financial and staff capacity of the ultimate Administrative Court was carried out in this respect.
In the light of the above arguments, it should be considered unacceptable that the applicant’s message in the explanatory memorandum that the adoption of the proposed law will have financial implications for the state budget, which, by its nature, are hard to measure and does not include an assessment of the financial implications for the budget of local government units. This proves not only the breach of the rules of the correct legislation, but besides shows the ignorance of the task promoter in this regard. The question here is, how can we propose specified major changes and not consider their financial implications for the state budget?
We do not agree with the projecter's claim that the proposed changes will have affirmative social, economical and legal effects, including for the situation of micro-entrepreneurs, tiny and medium-sized entrepreneurs, by eliminating any possible legal doubts regarding the compatibility of the disciplinary and immunity arrangements with the law of the European Union. specified conclusions are most likely based solely on the aim of keeping funds from the KPO. In the field of view, however, it should be borne in head that the full assessment of the social, economical and legal consequences must include interior factors, including whether and how the proposed changes solve erstwhile and for all the problem of the neo-crs and those appointed and promoted by them to service as judges, how will they actually safeguard the right of citizens to an independent and impartial court without having to wonder whether, in their case, the judge, or the alleged neo-judge, or whether these changes will supply a sense of stableness and legal certainty as to the consequences of the deficiency of real solutions to these problems for the Polish State itself, whether they will affect initiating fresh proceedings before the ETPC and the EU, whether the proposed solutions will make effective mechanisms for guaranteeing inviolability and safeguarding the independency of judges before the executive authority, which translates into issues of disciplinary and immunity, and yet what are the financial consequences?
Last but not least, the argument in favour of a negative assessment of this draft amendment is that the task promoter, in order to push through unconstitutional changes in the disciplinary judiciary of the judges, convinces us that in this way he removes the legal doubts arising from the law of the European Union. It so acknowledges that the erstwhile amendment, which has been in force for respective months, which established the Chamber of Professional work in the ultimate Court does not meet the standards of the EU regulation of law. However, for unknown reasons, the task promoter does not see the disciplinary and Immunity liability of prosecutors and the disciplinary work of representatives of another legal professions, including lawyers, notaries and many another professions. The question remains open, why are the solutions adopted in the alleged presidential novel, which set up the Chamber of Professional work not gathering the disciplinary disciplinary work of the judges, but the same regulations, with the same shortcomings and reservations, not questionable in the case of disciplinary accountability of representatives of another leads? This is clearly a deficiency of consistency on the part of the task promoter, as well as an apparent example of an effort to show the European Commission that this conversion of the regulation of law is being restored, while no of the fundamental problems that actually destruct it are solved.
In summary, the deficiency of a solution concerning the continued and continuous functioning of the neo-CRS and the continued participation of that body in the appointment and promotion of judges, the authorisation of judges appointed by that body both in the chambers of professional work of the ultimate Court, as in the Chief Administrative Court provided for as a disciplinary court, and the transfer of powers not in accordance with Article 184 of the Constitution to regulation on disciplinary matters and immunity of judges to the Chief Administrative Court in contravention of the procedure prescribed in ,,the Court of Milestones’, that this work should be transferred to another Chamber of the ultimate Court, but 1 which will comply with the criteria of Article 19 of the Treaty on EU, the absence of repealing the provisions of the ,the Administrative Court’s Act, the illusoryity and fascsibility of the procedure , the Court of Justice’s impartiality test’, to stay the disciplinary accountability of the another professions, including prosecutors, lawyers, legal advisers, etc. in the ultimate Court’s Chamber of disciplinary accountability, as well as well as well as the deficiency of a factual and comprehensive assessment of the social and legal consequences of the financial and Nor can it be said to any degree that those solutions contrary to the Constitution fulfil the conditions of "milestones".
Therefore, while we note that, while we realize the request to fund state finances with KPOs, we have no uncertainty that the introduction of these changes into our legal order will have specified far-reaching effects on the regulation of law and democracy in our country that it is simply impossible to keep a democratic regulation of law in the close future.

proc. Aleksandra Antoniak-Drożdż