In fresh weeks, in the legal circles, there has been an intense debate on the solution to the problem of neo-judges, i.e. persons appointed by the president on the basis of a advice from the National Judicial Council (neoKRS), which itself has been appointed in a way incompatible with the Constitution. To simplify, let us bring this multi-threaded discussion to 2 main positions.
The first of them represent supporters of the hawk positions associated with Iustitia, who search to nullify the appointments of judges designated by the neo-KRS. Their attitude can be summarized in the form of a decisive “out” for all those who previously did not service as assistants, assistants or referents. According to their view, these judges should return to where they came from, or to a lower court. However, if they have come from another professions, they should quit their erstwhile profession.
On the another hand, we have dove supporters representing the Helsinki Human Rights Foundation. They argue that mistakes must be corrected in accordance with the Constitution and the judgments of the EU Court of Justice and the European Court of Human Rights. They are opposed to extremist action, noting that judges are indisposable in accordance with the Constitution and that the European Court of Human Rights has never challenged the position of neojudges, simply indicating that the ruling formations in which they sit do not meet the criterion of “the court established by the law”.
It is worth noting that, according to the Helsinki Foundation for Human Rights, a thorough examination of the problem of neojudges, including analysis of the number, origin and places of ruling, is necessary. Without this, it is hard to measure the possible consequences of the possible "cut-out" of all neojudges by means of a bill. The Foundation proposes an individual assessment of all neo-judge, taking into account whether a individual promoted by the neo-KRS is simply a career player, a political nominee, or a professional who would win a position independently of the council's decision.
Hawks are right, too. According to them, “neons” are comparable to russian athletes at the Moscow Games. They won medals there, but mostly due to the fact that practically the full democratic planet boycotted these competitions. If a neojudge entered the competition, having no competition or having only 1 candidate (many judges boycotted the KRS for constitutional reasons), this may propose that he would not usually win the competition, being the 3rd or 5th choice. Iustitia says, if you want to measure them, let it be in an open competition where all those willing to participate. Then we will see if “neons” were specified heroes.
For judges who consistently did not break the Constitution and for 8 years watched their colleagues advance, it is demotivating to “curry” before specified persons. There are voices from the judges' circles that if we check now whether these “neos” are truly so bad, alternatively of rejecting them all, they will be rewarded in any way. If they did not prove negative in their work, no 1 would take their positions. According to the rule, they put themselves in competition, but they did not enjoy it. We accept their choice and respect.
Judge Piotr Mgłoniec from Wrocław believes that participation in the procedure before neo-KRS is an perfect test. If 1 has taken this step, knowing about constitutional doubts and realizing that his appointment may be challenged in the future, he has embezzled his oath to the justice and does not meet the condition of immaculate character. I agree. However, this does not mean that those who have not applied for promotion are automatically morally superior. The refraining from applying for promotion may have been due to opportunism towards the environment, e.g. colleagues from the faculty who boycotted the neo-KRS.
For me, an opportunist justice – no substance who – will always stay a businessman, which is not a feature I would like to see in the individual issuing sentences on behalf of the Polish Republic. I'm not saying this to depreciate those who have contributed to this mess, but about it in a moment.
If the neo-KRS problem were limited to 15 judges elected by politicians and respective who signed letters of support, it would not be so incriminating for the judge's community. There will always be black sheep among the large group. However, according to HFPC calculations, almost half of the 2.3 1000 people who applied for promotions were judges – not asessors, lawyers, counsellors or prosecutors. The boycott appeals remained silent. By becoming neo-judges, they contributed to this chaos.
If that's the case, let the environment clean up this mess. If justice Mgwiek is right that the participation in the defective procedure and the increase in chaos was a violation of the judge's oath, disciplinary proceedings should be initiated against those who committed it. Especially since the punishment may be a transfer to another service post or an ex officio deposit. It's a constitutional procedure.
Such a way avoids difficulties and problems related to the position of judge, avoids collective work and abrupt “cut” hundreds of people from courts (impossible in a week, especially since not all deserve to be removed from the profession). This solution besides eliminates the problem with decisions given by these judges.
Since participation in the competition before the neo-KRS was a circumstantial test that many failed, disciplinary procedures could be a test for another judges. However, this requires people willing to stand up to their own environment. This task may be hard to accomplish. prof. Ewa Łętowska says that it will not work, due to the simple fact: everyone wants to settle, but at the same time they anticipate individual else to do it for them. That could be true. It is worth remembering that the judiciary had the anticipation of self-cleaning after 1989 and did not take that opportunity. 1 cannot assume, as many commentators, that the situation will be different this time, especially since another specified chance will no longer exist.
Such a way avoids difficulties and problems related to the position of judge, avoids collective work and abrupt “cut” hundreds of people from courts (impossible in a week, especially since not all deserve to be removed from the profession). This solution besides eliminates the problem with decisions given by these judges.
Since participation in the competition before the neo-KRS was a circumstantial test that many failed, disciplinary procedures could be a test for another judges. However, this requires people willing to stand up to their own environment. This task may be hard to accomplish. prof. Ewa Łętowska says that it will not work, due to the simple fact: everyone wants to settle, but at the same time they anticipate individual else to do it for them. That could be true. It is worth remembering that the judiciary had the anticipation of self-cleaning after 1989 and did not take that opportunity. 1 cannot assume, as many commentators, that the situation will be different this time, especially since another specified chance will no longer exist.
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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Let the legal judges clean up the law after the neoKRS:
