This Friday, the draft law on the National Council of the Judiciary will be ready – Senate Deputy Marshal Gabriela Morawska-Stanecka announced in an interview with DGP
What will be the Senate’s decision regarding Judges Disciplinary Act?
Hard to say. We are only after a meeting of joint legislative committees and the rule of law and human rights, during which senators first listened to the voices of experts, and then had a discussion. In turn, today we are starting a three-day plenary session, where the decision will be taken as to the fate of the said Act.
How do you vote? Can this law be improved?
I have no idea how to improve it, because it cannot be improved. And I have 27 years of legal experience. In my opinion, the law should be rejected in its entirety.
The legislative team of the Senate is preparing its legislative proposals regarding the courts. At what stage are the works?
The bill on the National Council of the Judiciary is almost finished. This is a project of all opposition groups in the Senate, it responds to the facts that were created after the ruling of the CJEU of November 19 last year and the ruling of the Supreme Court of December 5. This is our answer to what tests of independence of the National Court Register pointed out to the CJEU and how the Supreme Court used them. And he established that the new KRS may not use the attribute of an authority independent of the other authorities, especially the executive one. I am in favor of the thesis that the new Act on the National Court Register broke the constitution, if only because the members of the previous National Court Register had their constitutional termination terminated and that it was the parliament that chose the judges to be chosen by the judiciary. Another issue is the famous signatures of support for candidates for the new National Court Register, which we may never see, and whose presentation was recommended by the Supreme Administrative Court. (Yesterday, the Olsztyn court decided that judge Paweł Juszczyszyn would go to the Chancellery of the Sejm to read the letters of support to the new KRS. Such a solution was proposed by the chancellery – ed.)
What should you do now?
This is rightly described last week by prof. Robert Grzeszczak in an opinion for the Senate. Poland should amend the Act on the National Court Register, appoint a new one in accordance with the constitution, find a legal instrument to verify those judges who were appointed by a defective staffed National Court Register. The legislator is also obliged to find a statutory procedure for the verification and possible confirmation of judgments issued by these judges. And there are already about 100,000 of them. The idea is for Polish and other EU citizens to be sure that the sentences are issued by correctly assigned courts.
What solution do you want to propose in your draft act on the National Court Register?
I do not want to reveal the details yet, we have established that since so-called the disciplinary act is on the table, for the time being we will not mix up our act on the National Court Register. Based on previous projects – incl. Iustitii or PSL – we have created a project combining these proposals, we have added provisions that are the answer of the CJEU and SN. The Senate has been working on the project since the end of November last year, and were it not for the fact that the muzzle act was submitted on December 10, we would probably show the act on the National Court Register at the beginning of January. And yes, unfortunately, we were busy with something else. I think that we will submit the bill on the National Court Register to the Speaker of the Senate this Friday.
When will the Senate adopt this draft so that it can be referred to the Sejm?
I think at the end of February. We agreed that we want to work on this act in accordance with the Senate Regulations and the requirements of correct legislation. We want to organize a public hearing and invite all interested communities. The project needs to be thoroughly discussed. The substantive provisions regarding the National Court Register are relatively simple and there was no doubt here. The most difficult thing was to consider this issue, which was given to us by the CJEU. It is very difficult to meet these requirements when we already have about 500 judges nominated by “neoKRS”.
What to do with these judges then? They already sit in the Disciplinary or Civil Chamber of the Supreme Court.
This is the subject of our project, please wait until Friday for details.
Will your project deepen the chaos we already have?
No. Our project is to make everything clear, legible and restore constitutional status and treaties.
PiS – based on the ruling of the Constitutional Tribunal – questioned part of the previous term of office of the National Court Register, chose a new one. From the point of view of the rulers, everything is embedded in the constitution.
But if this body was not elected in accordance with the constitution, it is not compatible with it. Shortening the term of office of the members of the National Court Register is analogous to the one in the case of an attempt to shorten the term of office of the first president of the Supreme Court. And when the EC lodged a complaint with the CJEU, this solution was quickly withdrawn. Certainly the fate of this bill depends on the government majority, but also on the EC. Because information has appeared that the Commission will apply for precautionary measures to the CJEU in the matter of the Disciplinary Chamber. If this were to happen, the Polish government must think about what to do.
Does it increase your project’s chances of entry into force?
If our bill goes to the Sejm, PiS can do what it usually does with opposition projects, but it may be worth bending over it, adopting at least some solutions, i.e. taking a step back. After the ruling of the CJEU, one should ignore the Disciplinary Chambers, as well as the Extraordinary Control, because they are set up contrary to the treaties and the constitution. Correction of this condition is the responsibility of the legislator.
Will the opposition encourage the Commission or the CJEU, if the court act enters into force, to challenge it?
The resources available to the opposition are quite meager. The opinion of this Venice Commission law will certainly be important. I participated in the meeting with them, I explained why the law is incompatible with the Polish constitution, as well as with our treaty obligations. Since the judges appointed by the new National Court Register have no right to adjudicate, the panels with their participation do not meet the conditions of an objective court independent of the executive branch. The Act cleverly omits the role of the National Court Register in their appointment, because it states that the judge is someone who was appointed by the president. In ancient Rome, Emperor Caligula appointed a consul as a horse. So this provision can be made absurd, and the president will appoint judges people who do not meet the prerequisites. President Duda is able to do this,
But the judges of the Constitutional Tribunal are appointed by the Sejm, and the president is only to receive the oath, which the law says, because the constitution itself is no longer.
But he did not receive from them, and from judges who were correctly appointed by the Sejm of the 7th term, he did not, so he decides. I was naive that in the campaign the president would rise above divisions and instead of judges Pawłowicz and Piotrowicz receive the oath from those judges. Unfortunately this did not happen.