The discussion about the ruling of the alleged neojudges is not silent. The issue is not only about constitutionalists but besides about the parties to litigation. any rulings in fresh years have been issued by judges appointed to their posts not in accordance with the constitutional procedure, i.e. with the engagement of the incorrectly appointed National Judicial Council. It is pointed out that legal steps are needed in the private and public interest to address this problem.
Mechanisms should be put in place and applied which will be a systemic consequence and take into account, in addition to the demands for legislative solutions, method and organisational aspects of the problem. Judges or asessors appointed with the participation of an unconstitutional body are not lacking, and questions about the consequences of specified a situation proceed to multiply.
Firstly, the overarching nonsubjective of the proposed amendments should be to comply with EU law and the Constitution so that the nonsubjective of eliminating defective appointments of judges and asessors from the legal strategy does not justify the means used. It should be stressed that, in the interests of legal certainty, a full legal solution, introduced into the legal strategy in an appropriate form, is required by the legislator, which will exclude the anticipation of contesting amendments. For the validity of these solutions, there is simply a request to make or modify a legislative act respecting the hierarchy of sources of law.
Secondly, it will be essential to draw attention to the decisions of global courts. The crisis around the regulation of law in Poland did not escape the judges of the Court of Justice of the European Union or the European Court of Human Rights erstwhile answering questions referred for a preliminary ruling and handling complaints. respective times there was a debate before the European judicial authorities on judges appointed in an unconstitutional procedure. That is where the judgement of the TEU of 6 October 2021 in Case C-487/19 at the request of the SN for a preliminary ruling can be cited. By deciding on the validity of the order issued by the alleged neo-judge alone The Court held that specified a provision should be regarded by the national court as unfounded[1]. The Court of Justice besides pointed out the grounds for the appointment of specified a judge: ‘if, on the full of the conditions and circumstances in which the appointment of that justice was carried out by a single person, it follows that this appointment was based on a flagrant breach of the basic standards forming an integral part of the strategy and functioning of the judiciary in question and that the correctness of the effect which it has led to is at stake and that, in the belief of individuals, there may have been reasonable doubts as to the independency and impartiality of the justice in question, so that provision cannot be regarded as having been issued by an independent and impartial court previously established by the law within the meaning of the second subparagraph of Article 19(1) TEU’. In the event of the appointment of unconstitutional state bodies (which is now considered to be the KRS) as to the fulfilment of these conditions, there is no uncertainty and it should be for the Polish courts to guarantee that they decide according to the indication of the TEU. Nevertheless, it should be stressed that there were another factors in this case alongside the flawed procedure which contributed to the judgement cited above. The problem gives emergence to the knowing of the concept of designation of the provision as ‘unfortunate’. It seems that the Court's intention was to state the legal state in which the decision was as if never given. This does not conclusively find whether akin sanctions should be imposed by alleged neo-Judges (and if so, how to treat the issue of judges' compositions another than one-persons, which besides include judges who have no legal comments?). The legal identity of the court within the meaning of EU law is dealt with by Advocate General Collins in his Opinion delivered on 15 December 2022.[2]which states that the court ‘established by law’ will not be the court in which the justice appointed in the procedure sits:
(a) without consulting the judicial authority;
(b) candidates have been appointed on the basis of a resolution of an authority specified as the National Judicial Council (Poland);
(c) candidates in the competition could not challenge the nomination procedure to a court complying with Union law.
The above conditions, if, in conjunction with any another applicable circumstances characterising the conduct of proceedings, they may give emergence to the conviction of individuals of a systemic uncertainty as to the independency and impartiality of the judges appointed as a consequence of the proceedings, constitute the basis for the assessment of the court as a court not established by the law.
Thirdly, constitutional guarantees guarantee that judges are inadequacy, which cannot be forgotten in answer to the question of solving the problem of alleged neo-judges. This implies, in turn, the question of having the position of justice within the meaning of constitutional regulations by persons appointed to positions on the basis of a bill on which there are objections.
Fourth, in order to guarantee legal certainty, the problem needs to be resolved as shortly as possible and the consequences for the parties to judicial proceedings will be determined by the courts on the position of which there are serious doubts. The number of these judgments and the long-standing practice of appointing judges and asessors with the participation of the National Court Register, not in accordance with the Constitution, is important. In the public debate, various ideas emerge, from recalling the decision in administrative proceedings, by maintaining the position of justice and appealing to the constitutionally appointed KRS for an opinion, to withdrawing the nomination. The discourse fails to draw attention to the issue of procedural parties, and they besides will be affected by the decision of the legislator. The resumption of completed proceedings or the repeal of judgments (by whom?) would undoubtedly origin organisational difficulties. From the position of the parties to the process, it could besides violate fundamental procedural principles by amending final decisions. There will undoubtedly be a weighing of the value here, as the condition for a justice to issue a judgement which may not have specified a position within the meaning of the Constitution has crossed the validity of the ruling. From the position of the trial, it is worth noting the anticipation of submitting applications for exclusion of the justice (in accordance with Article 41(1) of the Code of Criminal Procedure or Article 49(1) of the Code of civilian Procedure) and raising the allegation of deficiency of impartiality or independency of the court in appeal proceedings. It requires that an assessment of specified allegations or a decision on applications is always made by the court, taking into account the individual circumstances of the case. At present, a draft regulation amending the Regulation of the Minister of Justice – Rules of Procedure of the General Court – is being adopted in specified a way that no judges are appointed to examine requests for exclusion of a justice who questions the fact that a justice is appointed, as a consequence of an application for appointment of a justice presented to the president of the Republic of Poland by the National Judicial Council, as a consequence of the entry into force of the Act of 8 December 2017 amending the Act on the National Judicial Council and certain another laws (Journal of Laws of 2018 item 3).[3]. This proves that the legislator foresees the impact of specified proposals. Let us reiterate that the court will examine them taking into account individual aspects of the facts and the law.
Unbiasedness, independency and independency of courts and judges are the fundamental values of the regulation of law and their compliance should not be a subject of discussion, but of course. However, in the current legal state, the legislator should guarantee that these principles are implemented through legal instruments, respecting aspects of EU law, the hierarchy of sources of law and constitutional principles.
[1] judgement of 6 October 2021, C-487/19, ECLI:EU:C:2021:798, paragraph 161.
[2] Opinion of Advocate General Anthony Michael Collins delivered on 15 December 2022, Joined Cases C-181/21 and C-269/21, ECLI:C:2022:990, paragraph 79.
[3] Draft regulation of the Minister of Justice amending the Regulation – Rules of Procedure of the General Court, number from the list B800, Sejm of the 10th term.
