POSITION OF THE NATIONAL COUNCIL OF THE JUDICIARY OF

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POSITION

OF THE NATIONAL COUNCIL OF THE JUDICIARY

of 6 June 2017

in the matter of the request filed by the Public Prosecutor General to the Constitutional Tribunal
regarding constitutional compliance of certain provisions
of the Act of 12 May 2011 on the National Council of the Judiciary (Case File K 5/17)

National Council of the Judiciary presents the following position in the matter of claims raised by the Public Prosecutor General in his request to the Constitutional Tribunal regarding constitutional compliance of certain provisions of the Act
of 12 May 2011 on the National Council of the Judiciary (Journal of Laws of 2016 item 976 as amended):

Article 11(3) and (4) in conjunction with Article 13(1) and (2) and Article 11(2) in conjunction with Article 12(1) of the Act of 12 May 2011 on the National Council of the Judiciary are not compliant with Article 178(1) and Article 187(1)(2) and Article 187(4) in conjunction with Article 32(1) and (2) of the Constitution of the Republic of Poland;
Article 11(3) and (4) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary, to the extent in which the provisions leave out the rule under which the term of office of the members of the Council selected from among judges of common courts shall commence at the same time, are compliant with Article 187(3) and (4) of the Constitution of the Republic of Poland in conjunction with the principle of legal specificity arising from Article 2 and the principle of legality defined in Article 7 of the Constitution of the Republic of Poland.
To the remaining extent the proceedings are subject to discontinuation pursuant to Article 59(1)(2) of the Act of 30 November 2016 on the organisation and mode of proceedings before the Constitutional Tribunal (Journal of Laws item 2072).

The National Council of the Judiciary believes that the request of the Public Prosecutor General, who as the Minister of Justice is a member of the Council, is unjustified in its entirety.

STATEMENT OF REASONS

1. By his letter of 11 April 2017, the Public Prosecutor General filed a request to the Constitutional Tribunal requesting that:

Article 11(3) and (4) in conjunction with Article 13(1) and (2) of the Act of 12 May 2011 on the National Council of the Judiciary (Journal of Laws of 2016, item 976, as amended; hereinafter: Act on the National Council of the Judiciary) be declared non-compliant with Article 178(1) and 187(1)(2) and 187(4) in conjunction with Article 32(1) and (2) of the Constitution of the Republic of Poland and that Article 11(2) in conjunction with Article 12(1) of the Act on the National Council of the Judiciary be declared non-compliant with Article 187(1)(2) and Article 187(4) in conjunction with Article 32(1) and (2) of the Constitution of the Republic of Poland;
Article 11(1), (2), (3), (4) and (5) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary, to the extent in which the provisions leave out the rule under which the term of office of all members of the Council selected under those regulations shall commence at the same time, be declared non-compliant with Article 187(3) and (4) of the Constitution of the Republic of Poland in conjunction with the principle of legal specificity of the two provisions arising from Article 2 and the principle of legality defined in Article 7 of the Constitution of the Republic of Poland.

In accordance with the Act of 30 November 2016 on the organisation and mode of proceedings before the Constitutional Tribunal (Journal of Laws, item 2072; hereinafter referred to as the Act on the Constitutional Tribunal), participants of the proceedings in Case K 5/17 are exclusively: the Public Prosecutor General as the applicant and the Sejm as the body who issued a normative act covered by the request. In its position of 11 May 2017 (ref. no.: BAS-WPTK-787/17), the Sejm of the Republic of Poland considered the request of the Public Prosecutor General to be justified.

In accordance with Article 72(4) of the Act on the Constitutional Tribunal, the chairperson of the adjudicating panel may call upon other bodies and organisations to participate in the proceedings if the chairperson considers their participation to be reasonable for due explanation of the case. To this date, the National Council of the Judiciary has not received any summons issued under the aforementioned provision.

Case K 5/17 was assigned to the following adjudicating panel: judge of the Constitutional Tribunal Michał Warciński (chairperson), prof. Henryk Cioch, dr hab. Mariusz Muszyński (rapporteur), judge of the Constitutional Tribunal Leon Kieres and prof. Lech Morawski. This means that in the five-person adjudicating panel to which the case was assigned, there are three persons elected for the already occupied judicial positions (see judgment of the Constitutional Tribunal of 3 December 2015, Case File K 34/15, OTK ZU 11A/2015, item 185). For this reason, the National Council of the Judiciary has decided not to apply to such an adjudicating panel of the Constitutional Tribunal for permission to join the proceedings in Case K 5/17 and it has decided instead to adopt and publish its position on the claims raised by the Public Prosecutor General in the said case.

2. The first group of claims raised by the applicant is related to the mode of selecting the members of the National Council of the Judiciary referred to in Article 187(1)(2) of the Constitution of the Republic of Poland as regulated in the Act on the National Council of the Judiciary.

The applicant stated that the provisions challenged by him introduced differences in voting rights of the judges of common courts and other courts and differences in voting rights of judges representing specific levels of common courts. According to the applicant, the challenged provisions limited the rights of judges of common courts, were discriminatory against the judges of regional courts in comparison to judges of courts of appeal and they were discriminatory against judges of district courts in comparison to judges of regional courts. In the opinion of the applicant, the challenged provisions infringe the rule of equality arising from Article 32 of the Constitution of the Republic of Poland in terms of judicial independence and voting rights related to the National Council of the Judiciary.

In reference to such claims, it is first and foremost necessary to emphasise that the Public Prosecutor General claims that the participation of judges in the selection of their representatives to the National Council of the Judiciary “constitutes the exercise of the office and is covered by the rule of judicial independence”.

The National Council of the Judiciary agrees with this statement made by the applicant. It is true that judges do not exercise their individual rights in this regard (as, for example, voting rights in the election to the Sejm and Senate), but they exercise a right enjoyed by them as a public authority. Participation of judges in the selection of the members of the National Council of the Judiciary belongs to the empire zone and is strictly related to the status of a judge as a holder of public authority, namely judicial power, or a judge exercising his or her office. This means that by participating, either through standing for elections or voting, in the elections to the National Council of the Judiciary, a judge takes part in exercising public authority. This, in turn, means that the legal possibility of becoming a candidate for a member of the Council and participation of judges in the selection of the members of the National Council of the Judiciary through voting as envisaged by law is not a right enjoyed by a judge as an individual, but it is a competence of a judge as a holder of public authority.

The Public Prosecutor General requests that the rule of equality arising from Article 32 of the Constitution of the Republic of Poland be applied to the selection of judges to the National Council of the Judiciary. The first claim of the applicant was based entirely on the possibility of applying the rule of equality arising from Article 32 of the Constitution of the Republic of Poland to the exercising of judicial office. The applicant proposed a thesis about the equality of all judges in terms of judicial independence and about the equality of all judges in terms of their right to stand for election to the National Council of the Judiciary and to support this thesis he referred to constitutional grounds of rights and freedoms of persons and citizens. In other words, the applicant wishes that the standard related to rights and freedoms of persons and citizens be applied not only to the vertical relationship (as a claim of an individual towards the state), but also in the relation between the entities of public authority. The assumption that the selection of the members of the National Council of the Judiciary stays within the exercise of the judicial office and constitutes a part of exercising public authority means that a judge, to the extent of exercising the office held, is not a subject of rights and freedoms of persons and citizens as regulated in Chapter II of the Constitution of the Republic of Poland. The rights and freedoms of persons and citizens are public individual rights, which means they refer to claims of individuals towards the state (acting through public authorities).

Constitutional freedoms and rights are aimed at protecting individuals; they shape the relation between an individual and the state and other public authorities. Public authorities are required to ensure that individuals may exercise their freedoms and rights (use them); the entitled party is an individual, and the obliged party is a public authority (see order of the Constitutional Tribunal of 15 September 2011 Case File Ts 256/09).

In the opinion of the Council, it is necessary to distinguish between the legal situation of an individual appointed to hold a judicial office and the legal status of a judge as a public authority holder. As far as the selection of representatives of judges to the National Council of the Judiciary is concerned, judges, as it was stated by the applicant, exercise their office, or the scope of public power assigned to them, and therefore they do not use their constitutional individual rights, including Article 32 of the Constitution of the Republic of Poland. Human rights, of which the rule of equality is a part, do not cover horizontal relations between specific branches of power or within a single (as in the case of the judiciary) section of public authority. A list of constitutional rights and freedoms of persons and citizens is, however, applied in full to Polish citizens who exercise judicial office, but only to the extent beyond their exercising of judicial duties.

The National Council of the Judiciary believes therefore that the constitutional norm referred to by the applicant as related does not imply normative content that could constitute an adequate benchmark for the purpose of verifying the constitutionality of Article 11(3) and (4) in conjunction with Article 13(1) and (2) and Article 11(2) in conjunction with Article 12(1) of the Act on the National Council of the Judiciary. It should be noted that Article 11(3) and (4) in conjunction with Article 13(1) and (2) and Article 11(2) in conjunction with Article 12(1) of the Act on the National Council of the Judiciary are not non-compliant with Article 178(1) and 187(1)(2) and 187(4) in conjunction with Article 32(1) and (2) of the Constitution of the Republic of Poland.

In the opinion of the Council, in the challenged provisions the legislator opted for one of constitutionally acceptable options of selecting judges to the National Council of the Judiciary. In the constitutional law theory (L. Garlicki, thesis 7 to Article 187 of the Constitution [in] Konstytucja Rzeczypospolitej Polskiej. Komentarz [ed.] L. Garlicki, Wydawnictwo Sejmowe), it is indicated that the following rules of selecting judges to the National Council of the Judiciary may be concluded from Article 187(1)(2) of the Constitution:

members of the National Council of the Judiciary referred to in the said provision must be “selected”, meaning that “there must be a formal election procedure” which on the one hand excludes the possibility of their being appointed by any public authority body, and on the other hand leaves some freedom to the legislator, who may entrust this competence to judicial self-government or decide to have general elections in which all active judges will be entitled to vote, as long as the legislator respects the rule under which judges are elected by judges, arising from the independence of the judiciary from other powers (see judgement of the Constitutional Tribunal of 18 July 2007, Case K 25/07);
members of the National Council of the Judiciary selected from among judges should be judges from each of the groups specified in Article 187(1)(2) of the Constitution, namely at least one judge from among the judges of the Supreme Court, administrative courts, common courts and military courts; in this regard the legislator may specify the proportions of seats in the Council assigned to specific groups of judges (in particular the legislator may rely on their position within the system and professional experience typical of specific groups of judges by assigning to the judges of the Supreme Court and higher instance courts more seats in the National Council of the Judiciary than to judges with limited professional experience; the legislator may also decide to assign the number of mandates reflecting the size of specific groups of judges), since the Council is not a representative body of judicial self-government, but the constitutional body which is a guardian of the independence of courts and judges.

At this point, it should be noted that it cannot be concluded based on the constitutional provisions regarding the National Council of the Judiciary that it is required to maintain proportional representation of judges of specific levels in the National Council of the Judiciary. Similarly, the law maker did not decide to introduce proportional representation of members of the Sejm and the Senate in the National Council of the Judiciary. Both a member of the Sejm and of the Senate is a representative of the nation to the equal extent, no matter what the size of the member's constituency is or what the number of votes obtained in parliamentary elections was (Article 104 and 108 of the Constitution of the Republic of Poland). Still, there are 2 members of the Senate (selected from the statutory number of 100 members) and 4 members of the Sejm (selected from the statutory number of 460 members). According to the Constitution of the Republic of Poland, members of the Sejm and the Senate sitting in the National Council of the Judiciary do not represent their chambers proportionately (there is 1 member of the Senate in the Council for 50 members of the Senate and 1 member of the Sejm in the Council for 115 members of the Sejm), and therefore there is no ground to claim that it is necessary to have proportional representation of members of the Council selected from among judges. The legislator may introduce such a solution, but it is not bound to do so by the Constitution.

The National Council of the Judiciary points out that in the challenged provisions the legislator granted the competence to select the members of the National Council of the Judiciary to the bodies of judicial self-government, functioning in specific segments of the judiciary. For common and administrative courts, due to the size of these groups and differences in the structure of these sections of the judiciary, the rules of selecting judges are regulated in a manner appropriate for their specific circumstances. All judges of common courts may stand for election to the National Council of the Judiciary and all judges who undergo the election procedure specified in the Act may be elected to the National Council of the Judiciary. It is obvious that in the least numerous groups of judges (i.e. judges of the Supreme Court and military courts) the election procedure is simplified as much as possible and the legislator did not need to introduce an extended election procedure. In respect of more numerous groups of judges (judges of regional and district courts), the solutions challenged provide for double verification of support given to the members of the National Council of the Judiciary, which strengthens their legitimacy in the judicial environment; the judges are supported not only by the national self-government body, but also by general assemblies of judges or regional representatives.

The National Council of the Judiciary points out that the necessity to have an election procedure for candidates to the National Council of the Judiciary has been introduced by the constitutional legislator, who must have taken into account that, when voting, judges entitled to vote may consider the factors related to the manner in which public authority is exercised (e.g. stability of ruling represented by a candidate) or other criteria (e.g. experience of a candidate in judicial self-government activities), including the traits of a candidate's character. An assessment of a judge who wishes to become a member of the National Council of the Judiciary does not infringe the rule of judicial independence as long as it is made by other judges.

Each judge, not only a judge wishing to become a member of the National Council of the Judiciary, is subject to permanent assessments made by the court considering measures of appeal against rulings issued by such a judge, and substantive assessments made by visiting judges regularly or in the event of applying for another judicial nomination. Among the three branches of powers, only in the judicial power there is a procedure under which competences of a person exercising power are assessed by other judges who are more experienced in ruling. No similar type of substantive assessment can be found in the legislative or executive powers. Therefore, the claim raised by the Public Prosecutor General that making a judge subject to an election process attended, among others, by persons who consider measures of appeal against the rulings of such a judge infringes judicial independence is groundless. Additionally, this claim may suggest that the Public Prosecutor General questions the basic rule of the judiciary, i.e. the rule of two instances, on which the multi-level structure of the judiciary is based and under which a case may be assessed and heard by judges of a higher instance.

Leaving aside the proposal made by the applicant to apply a list of rights and freedoms of persons and citizens to the rules of exercising judicial power, the National Council of the Judiciary points out that the reference made by the Public Prosecutor General to the rule of equality cannot be justified on the grounds of “general voting rights” as well. It is enough to look at the linguistic level, clearly preferred by the applicant, to state that the rule of equal elections is not an inherent feature of each election procedure. It should be noted that the law maker regulates the principles of election law in specific provisions (Article 96(2), Article 97(2) and Article 127(1) of the Constitution of the Republic of Poland). As far as the selection of judges to the National Council of the Judiciary is concerned, the law maker has not decided to introduce any of general principles known to the Polish election law: equality, directness, commonality, proportionality or majority. Still, within the existing Act on the National Council of the Judiciary, no judge of the Supreme Court, administrative court, common court or military court was deprived of a voting right or right to stand for election to the National Council of Judiciary referred to in Article 187(1)(2) of the Constitution; prohibition of any restrictions on the right to stand for election was confirmed in the judgment of the Constitutional Tribunal of 18 July 2007 in Case 25/07. In the same judgment, the Constitutional Tribunal decided that the election procedure specified in the previously applicable Act of 27 July 2001 on the National Council of the Judiciary complied with Article 187(1)(2) of the Constitution. It should be noted that under that Act (Article 7(4)), the assembly of representatives of general assemblies of regional judges elected members to the National Council of the Judiciary “from among themselves” and not from all regional judges (judges of district and regional courts). The Constitutional Tribunal accepted the constitutional compliance of the regulation, which is currently questioned by the Public Prosecutor General. For this reason, it should be emphasised that each judge is entitled to stand for elections to obtain a mandate of a member of the National Council of the Judiciary and each judge may be elected to the National Council of the Judiciary after taking part in the election procedure applied to the segment of the judiciary in which such a judge exercises his or her office.

3. The Public Prosecutor General also claimed that Article 11(1), (2), (3), (4) and (5) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary, to the extent in which the provisions leave out the rule under which the term of office of all members of the Council selected under those regulations shall commence at the same time, are non-compliant with Article 187(3) and (4) of the Constitution of the Republic of Poland in conjunction with the principle of legal specificity of legal provisions, arising from Article 2, and the principle of legality defined in Article 7 of the Constitution of the Republic of Poland.

The National Council of the Judiciary points out that in this part of the request, the Public Prosecutor General referred to Article 11(1), (2), (3), (4), (5) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary. This means that the applicant infers the existence of a specific legal norm from the provisions of the Act on the National Council of the Judiciary quoted by him. Meanwhile, Article 13(3) and (4) of the Act on the National Council of the Judiciary refer exclusively to the selection of the members of the National Council of the Judiciary from among the judges of common courts. The provisions regulate only the manner in which the representatives of assemblies of judges of courts of appeals and representatives of general assemblies of regional judges (judges of regional courts and district courts) are selected. Given the wording of the request, it should be noted that Article 11(1), (2) and (5) of the Act on the National Council of the Judiciary are in fact beyond the scope of the appeal discussed. In the statement of reasons to the request, the Public Prosecutor General presented arguments to support a claim regarding individual terms of office of the members of the National Council of the Judiciary only with respect to judges of common courts. For these reasons, issuing any ruling in respect of Article 11(1), (2) and (5) in conjunction with Article 13(3) and (4) of the Act on the the National Council of the Judiciary is inadmissible. The Constitutional Tribunal is bound by the scope of the appeal (Article 67(1) of the Act on the Constitutional Tribunal) and cannot replace the applicant in making arguments in support of his unjustified claims. To this extent, the proceedings shall be subject to discontinuation under Article 59(1)(2) of the Act on the Constitutional Tribunal.

In the opinion of the Council, it is necessary to respond only to the claim regarding non-compliance of Article 11(3) and (4) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary, to the extent in which such provisions leave out the rule under which the term of office of the members of the Council selected from among judges of common courts should commence at the same time. In the opinion of the Council, the rule complies with Article 187(3) and (4) of the Constitution of the Republic of Poland in conjunction with the principle of legal specificity arising from Article 2 and the principle of legality specified in Article 7 of the Constitution of the Republic of Poland.

The National Council of the Judiciary notes that in accordance with Article 187(3) of the Constitution, the term of office of the selected members of the National Council of the Judiciary lasts four years. This means that the members of the National Council of the Judiciary selected from among judges, from among members of the Sejm and from among members of the Senate exercise their function within their constitutionally determined term of office. The Council supports the view according to which the legislator, when specifying the mode in which the members of the National Council of the Judiciary are selected (pursuant to Article 187(4) of the Constitution), must respect the principle of 4-year term of office of the National Council of the Judiciary’s members. The length of the term of office cannot be changed by means of an act and the legislator must not shorten it or terminate it. It should be, however, clearly stated that the term of office of the National Council of the Judiciary does not arise from Article 187(3); this is a permanent body of mixed composition, which is regularly renewed.

The basic claim of the applicant is a thesis according to which the term of office of all selected members of the National Council of the Judiciary should commence at the same time. The understanding of Article 187(3) of the Constitution presented by the applicant in fact means reading the wording of the provision without taking into consideration the objective of its introduction and interpretation context. The Council notes that the correct interpretation of the Constitution cannot be limited to the result of so-called linguistic interpretation and it cannot be deprived of a wider and thorough analysis of the entirety of constitutional norms.

The Constitutional Tribunal stated that “the analysis of the Constitution leads to the conclusion that both the regulations related to the term of office of collective bodies and individual terms of office of persons sitting in such bodies are not shaped according to a single scheme. In fact, almost each constitutional collective body whose members are selected differently than through general elections is appointed in a different manner. Undoubtedly, among factors that had an impact on that there are different systemic position and functions of specific bodies, which justifies this variety of detailed provisions regarding institutional aspects of such bodies adopted by the law maker. As far as the scope discussed is concerned, the clearest and most exhaustive regulations are constitutional regulations related to the Constitutional Tribunal” (judgment of the Constitutional Tribunal of 24 November 2003 Case K 26/03).

In accordance with Article 194(1) of the Constitution, judges of the Tribunal are selected individually for 9 years. According to the applicant, the wording of this provision is supposed to indicate clearly that the individual selection may apply only to the judges of the Tribunal as long as the law maker explicitly introduces the said principle only in this case. Meanwhile, as it was pointed out by the Tribunal in the already quoted statement of reasons, the Constitution of the Republic of Poland provides for various solutions governing the terms of office of specific bodies or individuals sitting in such bodies. The Tribunal clearly indicated that the provisions are not shaped according to one scheme, and therefore in the opinion of the Council, drawing any conclusions to the contrary effect, as the Minister of Justice and Public Prosecutor General did to ground the discussed claim, is groundless.

According to the National Council of the Judiciary, the current wording of provisions that regulate the terms of office of specific members of the National Council of the Judiciary complies with the Constitution. Individual nature of terms of office of the selected members of the National Council of the Judiciary supports the implementation of pluralism principle to the work of the National Council of the Judiciary and corresponds in an optimum manner with the mode of selecting members to the National Council of the Judiciary. This, in turn, means that Article 11(3) and (4) in conjunction with Article 13(3) and the first sentence of Article 13(4) of the Act on the National Council of the Judiciary, to the extent in which the provisions leave out the rule under which the term of office of the members of the Council selected from among judges of common courts shall commence at the same time, are compliant with Article 187(3) and (4) of the Constitution of the Republic of Poland in conjunction with the principle of legal specificity arising from Article 2 and the principle of legality defined in Article 7 of the Constitution of the Republic of Poland.

The National Council of the Judiciary also indicated that on 12 February 2002 it had issued a resolution in which it had adopted a position in the matter of interpretation of Article 187(1)(2) of the Constitution of the Republic of Poland in terms of calculating the term of office of members of the National Council of the Judiciary selected from among judges. The Council reminds that the resolution expressed the position of the members of the National Council of the Judiciary in this regard. It should be noted, however, that under applicable regulations it is not the National Council of the Judiciary, but the Minister of Justice who organises the elections of members of the National Council of the Judiciary. This means that the Minister of Justice and the bodies of judicial self-government, even though it was not required of them, have shared the presented position of the Council for the last 15 years (also from 2005 to 2007).

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