The European Court of Human Rights (ECHR) has clearly stated that Poland is facing a systemic problem related to the politicised process of election of judges, the formation of fresh chambers in the ultimate Court and an extraordinary complaint, which is dependent on political influence. On Thursday, the announced conviction afraid the case of Lech Wałęsa, who has been in a legal dispute for years with Krzysztof Wyszkowski, accusing him of an agentural past.
The European Court of Human Rights decided to apply the pilot judgement procedure to Poland. This means that the country has been obliged to take legislative action to reconstruct compliance, in peculiar in the context of the "independent and independent court established by the Act". Experts point out that the appeals of judges from the alleged neo-KRS may constitute a step towards the healing of the judicial system.
The case of Lech Wałęsa, which went to Zbigniew Ziobry's desk, became the subject of an emergency complaint to the recently formed ultimate Court Chamber, and this complaint was taken into account. The final judgement of the Court of Human Rights is simply a triumph for Wałęsa, who was found injured and Poland was convicted of violating the European Convention on Human Rights.
The Court besides expressed peculiar objections to the position of lawyer General, who at the same time serves as Minister of Justice, overseeing administratively the courts and is besides active in political activity. Experts stress that the extraordinary complaint should not be utilized as a political tool. The judgement of the ECHR sheds light on the difficulties of independency of the judiciary in Poland and calls for urgent legislative action to reconstruct integrity and compliance with legal standards.
“The ECHR has clearly indicated that the solution to the systemic problem of neo-Judges will be part of the execution of the judgement and that this cannot be left without any decision,” emphasises Dr Barbara Grabowska-Moroz of the Helsinki Foundation for Human Rights.
The ETPC does not indicate how to change the law.
– But Strasbourg's judgement must be executed and depoliticised with the choice of judges – emphasises Wojciech Hermelinski, justice of the Constitutional Court at rest. "It is the KRS in its present form that is the origin of evil, so it is essential to revoke the election of judges to the KRS by resolution of the Sejm. However, you cannot choose fresh ones. The Council will not work for any time, but that's good, due to the fact that it will not “produce” candidates for judges with the same flaw," he adds.
The current parliamentary majority, working on draft resolutions. In the next stage, a bill is planned to destruct political vocation to the noeKRS. According to the fresh proposals, judges would be expected to participate again in the selection of their colleagues, and candidates could besides be submitted by citizens, NGOs and the legal community.
In the National Judicial Council, where the fresh word of office is now being elected by the Sejm, the atmosphere on Thursday was little hot than on the erstwhile day. On Wednesday there were even calls for police intervention due to alleged threats directed to Kamila Gasiuk-Pihowicz by justice Maciej Nawacki.
During this procedure, a fresh neoKRS Vice-President was elected, replacing Arkadiusz Mularczyk. Successively, more judges rejected the proposals to run until the neo justice introduced Mr Tomasz Zimoch as his candidate. Nevertheless, Zimoch besides refused, arguing that he was questioning the constitutionality of the procedure for selecting judges to the National Judiciary Council.
The illiterate presently elected neo-Judge Zdun as vice-president of the neo-KRS.
We remind you that the case law issued by the neo-judges is repealed by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.
What is neo-KRS and neo-Judge
The National Judicial Council was elected in a manner incompatible with the Constitution of the Republic of Poland, which makes it impossible for the Court of Justice to recognise it in the light of the adopted line of the jurisprudence of the ultimate Court and the TEU as a body acting as acting and having the power to appoint judges. Any justice appointed by that unconstitutional authority and appointed by the president to execute is besides served by a noe-judge who has no legal capacity to issue judgment,
At this point it will be justified to rise that the problem of vocations of "judges" after the formation of the "National Judicial Council" as a consequence of changes in 2017 has respective aspects. The first is related to the provisions of the Constitution of the Republic of Poland, which impose on public authorities, including the legislator, the work of specified appointment of judges to judicial duties, which guarantees the essential minimum independency and independency of the bodies active in the nomination process. This body is the National Judicial Board. engagement in constitutional standards for shaping the judicial composition of this body, creating an chance for politicians to form the Council, i.e. the election of members of the judges of the Council in their entirety by parliament (excluding the 1st president of the SN and the president of the NSA), has caused this body to neglect to meet constitutional requirements. This makes in any event the appointment of a justice question arise, which accompanies any man who puts his case under the judgement of the court, whether this court is simply a constitutional court.
In addition, this is the second aspect – in the doctrine to which I have given my hand, and in the case-law, there has been a method of verifying the correctness of the appointment of judges based on tools that have been in the strategy since forever, but mostly not utilized to measure the fulfilment of minimum conditions of impartiality and independence. It is the institutions (in the case of preventive control) – iudex sspectus and iudex inhabilis, and in the case of follow-up control – the absolute appeal condition, which is the incorrect cast of the court. On this thought the position of the resolution of the 3 Joint Chambers of the ultimate Court of January 2020 was placed. The resolution contained not precisely the right differentiation: indicating that, in the case of an SN, due to the nature of that authority, judges appointed after a advice of the KRS formed after 2017, do not supply guarantees of independent and impartial ruling. For this reason, it was considered that only this organization flaw justifies the claim that specified judges are deprived of material votum. The resolution did not competition that these persons had obtained the position of SN judges, but it was found that they had no power to issue judgments.
The judgments of specified ‘judges’ so far have been affected by the defect, given the inadequate cast of the court, which should be regarded as a failure to fulfil the constitutional request of the competent court referred to in Article 45(1) of the Constitution of the Republic of Poland. Failed judges should not rule. From the date of the resolution, these judges shall be incapable to rule. They do not have a material votum, although they have the position of judges. In the light of the above, it should be considered that, pursuant to Article 91(2) and (3) of the jurisprudence of the Court of Justice of the European Union and of the ECHR, the rule of precedence of the application of the law
This is justified in the judgement of the Court of Justice of the European Union of 6 October 2021 in Case C-487/19, as well as in the erstwhile judgement of the European Court of Human Rights of 7 May 2021, action No 4907/18. I remind the hooded court that, in accordance with Article 9 of the Constitution, the Republic of Poland is obliged to respect its binding global law. In accordance with Article 91(2) of the Constitution, an global agreement ratified with the prior consent expressed in the Act shall take precedence over the law if that law cannot be reconciled with the agreement. The position of judges and the guarantees of the independency of courts, which constitute the essence of the right to a fair trial, are enshrined in the provisions of the European Convention for the Protection of Human Rights and are further confirmed in Article 6(3) of the Treaty on EU. In the present case, the judgement given on 7 October 2021 by the Constitutional Court in the present – defective – composition of the case in Case No. K 13/21, which reconciles the interests of citizens.
Our position on the neo-CRS and neo-Judges appointed by this unconstitutional body confirms the position of the European Commission, which decided on 15 February 2023 to mention Poland to the Court of Justice of the European Union in connection with the controversial ruling of the Polish Constitutional Court. The Commission opened infringement proceedings against Poland on 22 December 2021. – The reason was the judgments of the Polish Constitutional Court of 14 July 2021 and 7 October 2021, in which it declared the provisions of the EU treaties to be incompatible with the Constitution of the Republic of Poland, explicitly questioning the rule of primacy of EU law. Without doubt, in light of the content of the judgement of the Court of Justice of the European Union (Grand Chamber) of 19 November 2019 (Nos C 585/18, C-624/18, C 625/18) and the resolution of the full composition of the ultimate Court of 23 January 2020 (BSA I-4110-1/20), there is simply a basis for concluding that the institution designated to guarantee the regulation of law is breaking the law and commits the crime.
We remind you that the case law issued by the neo-judges is repealed by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.
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Following the ETPC judgement in the Wales case, it is essential to remove the neojudges from their posts without delay:
