Opinia Biura Legislacyjnego Kancelarii Sejmu dot. rządowego projektu zmian w ustawie o KRS

17 marca 2017r. Biuro Legislacyjne Kancelarii Sejmu przedstawiło wstępną opinię legislacyjną do rządowego projektu ustawy o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (przedstawiciel wnioskodawców: Minister Sprawiedliwości).

W opinii tej stwierdzono m.in. że wybór 15 sędziów na członków KRS przez Sejm budzi wątpliwości co do zgodności z art. 10 Konstytucji RP, wygaszenie kadencji dotychczasowych członków KRS budzi wątpliwości co do zgodności z art. 187 ust 3 Konstytucji RP, natomiast sam projekt zawiera szereg uchybień legislacyjnych wymagających usunięcia w trakcie procesu legislacyjnego.

Poniżej pełna treść opinii oraz angielska wersja.

Opinia (pdf)

 

Warsaw, 17 March 2017

 

Initial legislative opinion on the government's draft act amending the Act on the National Council of the Judiciary

and several other acts (representative of the sponsors: Minister of Justice)

 

The aim of the proposed draft act is to entrust the Sejm with selecting judges – members of the National Council of the Judiciary (KRS), creating new bodies within the National Council of the Judiciary, introducing new principles of selecting and presenting to the President requests for the appointment of judges or assistant judges, as well as shortening the term of office of the National Council of the Judiciary's members selected from among judges, the term of office of the disciplinary proceedings representative for common court judges and assistant judges and the term of office of the disciplinary proceedings representative for military court judges.

The statement of reasons attached to the draft act satisfies the requirements provided for in Article 34(2)(1)–(4) of the Sejm's Standing Orders.

The sponsors indicated that the draft act did not cause direct financial effects for the state budget or budgets of local government units.

The draft act does not provide for the necessity to issue any implementation acts.

The statement of reasons includes the statement that the draft act is not covered by the EU law, and therefore it satisfies the requirements of Article 34(2)(7) of the Sejm's Standing Orders.

Pursuant to Article 34(3) of the Sejm's Standing Orders, the statement of grounds should present the results of consultations carried out and inform about variants and opinions presented. Taking into consideration the scope of the proposed changes and the statutory right to be consulted held by entities that were not involved in the process of preparing the draft act, the Legislative Bureau indicates that, due to the scope of the draft act, opinions thereon shall be expressed also by:

1)  the National Chamber of Legal Advisers – pursuant to Article 60(2) of the Act of 6 July 1982 on legal advisers;

2)  the Supreme Bar Council – pursuant to Article 58(9) of the Act of 26 May 1982 – Law on Advocate Profession;

3)  General Counsel to the Republic of Poland – pursuant to Article 4(1)(10) of the Act of 15 December 2016 on the General Counsel to the Republic of Poland.

The statement of reasons, in accordance with Article 34(4b) of the Sejm’s Standing Orders, includes the information that the draft act is made available through the Public Information Bulletin pursuant to Article 5 of the Act of 7 July 2005 on lobbing activity in law-making process and that no entity expressed its interest in the work on the draft act under the aforementioned procedure.

As far as the matter of forwarding the draft act for the first reading is concerned, it should be noted that due to the change in the system and jurisdiction of the National Council of the Judiciary, which is a public authority body, the first reading should be conducted during the session of the Sejm (Article 37(2) of the Sejm’s Standing Orders).

The draft act raises serious doubts of constitutional nature, which due to the short period available for drafting this opinion, may only be signalled.

The draft act provides for the change in principles governing the appointment of the members of the National Council of the Judiciary from among the judges of the Supreme Court, common courts, administrative courts and military courts. Pursuant to Article 12 (amendment 1) of the submitted document, the Sejm is to select judges to perform the function of the members of the Council from among candidates presented by the Speaker of the Sejm.

The National Council of the Judiciary, pursuant to Article 186(1) of the Constitution, is a guardian of the independence of courts and judges. The National Council of the Judiciary is composed of 25 members, of whom four are selected by the Sejm and two are selected by the Senate (Article 187(1) of the Constitution). Article 187(2) of the Constitution stipulates that the National Council of the Judiciary selects its chairperson and two deputy chairpersons from among its members, and their term of office lasts for 4 years (Article 187(3) of the Constitution). Article 187(4) stipulates that the organisational structure, scope of activities and procedures for work of the National Council of the Judiciary and the method of selecting its members is specified by the Act.

According to Article 8 of the Constitution, the Constitution is the supreme law of the Republic of Poland and its provisions apply directly unless the Constitution states otherwise. This means that the provisions of the Act must be compliant with the Constitution.

Constitutional Tribunal in its judgment of 18 July 2017, Case No. K 25/07, decided as follows: “Article 187(1)(2) of the Constitution regulates directly the principles governing the selection of the National Council of the Judiciary and decides about the personal composition of the Council. It states expressly that the members of the National Council of the Judiciary may be judges selected by judges and it does not specify any additional features that would constitute conditions for their membership in the Council. The selection is made from among four groups of judges specified in Article 187(1)(2) of the Constitution. The Constitution does not provide for the possibility of removing members and their four-year term of office is defined. The selection procedure specified in the Act on the National Council of the Judiciary, whose scope of activities is set forth in Article 187(4) of the Constitution, is shaped by Article 187(1)(2) of the Constitution, which provides for the principle under which judges are selected by judges.”

Article 187(1) specifies how many members of the National Council of the Judiciary are selected by the Sejm and the Senate. If further 15 members of the National Council of the Judiciary were to be selected by the Sejm, then the competence of the Sejm to select such members would arise directly from the provisions of the Constitution, as it is the case with 6 members of the National Council of the Judiciary referred to in Article 187(1) (3), judges of the Constitutional Tribunal (Article 194(1) of the Constitution) or members of the State Tribunal (Article 199(1) of the Constitution). As the Constitution specifies the composition of the National Council of the Judiciary and states how many of its members should be selected by the Parliament, the solution proposed by the sponsors, which envisages that 15 additional members of the National Council of the Judiciary would be selected by the Sejm, does not comply with Article 187(1) read in connection with Article 8 of the Constitution (the Constitutional Tribunal states that non-compliance of an act with the Constitution may have different forms; in some cases, infringement of the Constitution is visible already when juxtaposed with the wording of the act, which includes norms that cannot be aligned with constitutional standards, principles or values, irrespective of the interpretation methods, see judgement of 12 January 2000, Case No. P 11/98), and raises doubts as for the compliance of the solution with Article 7 of the Constitution, according to which public authorities act on the basis of, and within the limits of, law.

In its judgment of 8 April 1998, the Constitutional Tribunal upholds its earlier standing with respect to Article 3 of the earlier constitutional provisions that the rule of legality (currently expressed in Article 7 of the Constitution of the Republic of Poland) imposes on legislative bodies an obligation to formulate provisions in the enacted acts in a manner that stays in line with the provisions of the Constitution (case-law of the Constitutional Tribunal in Cases No. K 15/91 and P.1/95).

The Constitution stipulates that the National Council of the Judiciary is a guardian of the independence of courts and judges (Article 186 of the Constitution) and that the judiciary is separate from and independent of other branches of power (Article 173 of the Constitution), and it delineates precisely the competence of legislative and executive powers in shaping the composition of the National Council of the Judiciary.

In its judgment of 18 July 2007, Case No. K 25/07, the Constitutional Tribunal stated that “regulations on selecting the judges to the Council are grounded in the Constitution and are of particular systemic importance, as their position decides, in fact, about the independence of this constitutional body and the effectiveness of the Council’s work.” The aim of the separation of powers is to protect human rights by preventing the abuse of power by any of the bodies exercising it (judgment of the Constitutional Tribunal of 9 November 1993, Case No. K 11/93). In accordance with the judgment of the Constitutional Tribunal of 14 April 1999, Case No. K 8/99, the “principle of the separation of powers assumes a particular manner of defining relations between the judiciary and the other powers. In the relations between the legislative and the executive powers, various forms of interaction and cooperation are possible, and it is also possible to have an area in which the competences of bodies belonging to these two branches of power intersect or overlap. Relations between the judiciary and other powers, however, must follow the principle of separation. A necessary element of the principle of separation of powers is the independence of courts and judges.”

Therefore, the selection of 15 judges to be members of the National Council of the Judiciary by the Sejm raises doubts as for the compliance with Article 10 of the Constitution.

It is necessary to consider whether Article 16 of the draft act that provides for selecting deputy chairpersons of the Council by the First Assembly and the Second Assembly of the Council, each from each Assembly, fits into the idea of the system whose shape, according to Article 187(4) of the Constitution, is to be regulated by the Act. The First Assembly of the Council is composed of the Minister of Justice, the First President of the Supreme Court, the President of the Supreme Administrative Court, a person appointed by the President as well as 4 members of the Sejm and 2 members of the Senate. The Second Assembly of the Council is composed of 15 judges and, therefore, the draft act decides that one of the deputy chairpersons must be a judge and the second must be selected from among the members of the First Assembly of the Council. It is necessary to carry out an in-depth analysis to state whether the solution is in line with Article 187(2), which stipulates that the National Council of the Judiciary selects from among its members a chairperson and two deputy chairpersons.

In Article 5 of the draft act, the sponsors envisage that the term of office of 15 judges of the National Council of the Judiciary selected pursuant to the existing regulations expires after 30 days after the act comes into force.

This solution raises doubts in terms of its compliance with Article 187(3) of the Constitution, which stipulates that the term of office of the selected members of the National Council of the Judiciary is 4 years, in particular in the light of the quoted judgment of the Constitutional Tribunal, Case No. K 25/07, where in the statement of reasons, the Constitutional Tribunal stated expressly that: “the Constitution does not provide for the possibility of removing the members of the National Council of the Judiciary, when specifying their four-year term of office in the Council.”

In view of the above, it is reasonable to forward the draft act to the Sejm Bureau of Research to prepare a detailed opinion on its compliance with the Constitution, in particular with Article 186(1) read in connection with Articles 10 and 173, Article 187 read in connection with Articles 7 and 8 of the Constitution.

In view of the presented doubts concerning the compliance of the solutions included in the draft act with the Constitution, the Legislative Bureau indicates that the Speaker of the Sejm, pursuant to Article 34(8) of the Sejm's Standing Orders, after consulting the Presidium of the Sejm, may forward the draft act for the purpose of obtaining an opinion of the Legislative Committee.

The Legislative Bureau points out that in connection with proposed Articles 11 and 12 (amendment 1 of the draft act), new obligations will be imposed on the Speaker of the Sejm related to publishing in “Monitor Polski” (official gazette) information on vacancies in the National Council of the Judiciary, as well as selecting applications from candidates for members of the National Council of the Judiciary who are judges, and presenting them to the Sejm.

Additionally, it should be noted that the work on the examined draft act should be harmonised with the work on the government's draft act amending the Act on the National School of the Judiciary and Public Prosecution, Act – Law on the system of common courts, and several other acts (filed with the Sejm on 16 March 2017), which regulates the norms included in Article 22 and Articles 32–37 of the Act on the National Council of the Judiciary differently.

The draft act includes several legislative defects that need to be removed in the legislative process.