This is a response of Iustitia to the "informational materials" handed out by PM Morawiecki to foreign journalists on a press meeting on January 10th, 2018. The materials originally included the EC recommendations along with the response of the government. We follow the original order of statements in the PM's document and we added sections including our responses describing factual situation.





Recommendation EC 2.1.1(6)

“due to the lowering of the retirement age all new [Supreme Court] judges will be appointed by the President of the Republic on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by the political appointees.


PL government position

The Council will still be dominated by judges (17 - as compared to 8 non-judges). They will be appointed by the Parliament by a 3/5 majority for a 4-year term, and are irrevocable both from the Council and their judicial mandates. There is no mechanism that would al low either the Parliament or the government to effectively enforce that the Council appoints specific judges to the Supreme Court.

Other public officers elected by the Parliament, such as the Ombudsman, Constitutional Tribunal Judges, Supreme Audit Office President are also political appointees in this meaning - and they enjoy full independence from other branches of power; members of National Judiciary Council are enjoying it as well and will continue to do so, as new law provides no regulations that would pressure them to act at Parliament's  will after they are elected.



Response from IUSTITIA - Association of Polish Judges

 Lowering the retirement age for Supreme Court judges will result in retirement of 40% of acting judges in the court. The judges may apply for extension of the service beyond the retirement age, but this mechanism raises many questions of constitutional nature.

At the same time, the creation of new chambers in Supreme Court – Disciplinary Chamber and Chamber of Extraordinary Control and Public Matters Chamber, will force the increase of the number of Supreme Court judges from 80 to 120. The vacancies and newly created posts will be manned by the judges nominated by National Judiciary Council. The latter in its new form is indeed a political body which we will discuss further in this document.

Minister of Justice will also directly second judges from all common courts. These direct nominees of the Minister may take up to 30% of Supreme Court’s posts. Of course the new law does not stipulate any conditions to be fulfilled by seconded  judges.


It is important to note, that the new chambers will be populated exclusively by the new Supreme Court judges nominated by new National Judicial Council.

Even more important is the fact, that new law transferred (from the Chamber of Labor and Social Security to new Chamber, populated with only new judges) the responsibility for dealing with: electoral complaints, complaints related to country-wide referendum, constitutional referendum, approval of the elections and referendum, other public law matters, including competition protection law, energy regulation, telecommunication and railroad transport and appeals from the decision of the president of the National Council of Radio and Television. 

There is no reference to this rearrangement in the justification to the new law.

And the same law assumes that the executive power will have total control over the personnel and management of the Supreme Court in the transitional period (art. 11 § 4).




Recommendation 2.1.2.(10) KE

“it is hard to see why a person who was deemed fit to perform official duties for several more years to come would suddenly be considered unfit”

if the authorities doubt the loyalty of individual judges, they should apply the existing lustration or disciplinary procedures and not change the retirement age”


PL government position

We understand that it may be hard to see why - and will do our best to explain it properly. In the following weeks we will present a white paper describing reasons that make the reform necessary.

In short, it is worth underlining that Polish judiciary is the only branch of power that came nearly intact from totalitarian communism era to modern democracy. It is true that almost all the judges were considered fit to continue their service – but that happened for merely political reasons.

Society never accepted that communist-era judges are still administering justice – and that is one of the reasons for a very low trust in judiciary.

There are still judges in the Supreme Court that were involved in delivering harsh, politically motivated verdicts during the  martial war in 1980’. Some others were confidential informers of communist security services. Their continuous presence in the highest court of the country and influence on it has long affected both public trust in the judiciary and other, younger judges’ conduct as well.

In 2007 (almost 20 years after the democratic transition) the Supreme Court issued a verdict that virtually exempted all the judges involved in communist-era court crimes from any responsibility for their actions. In a wide perception this was motivated by a desire to protect older colleagues from possible responsibility (disciplinary and/or criminal).

We do not intend to individually condemn every single judge involved in communism and organize a national witch-hunt against them - that would only further diminish already low public trust in the judiciary.

Instead we propose a reform that:

  1. Retains all rights for the judges in question - as they will continue to receive full pension for the rest of their lives;
  2. Allows for a reform of the Supreme Court - guaranteeing that it will be composed only of respected judges and scholars, nominated by the National Judiciary Council consisting in over 2/3 majority of independent, irrevocable judges.

We strongly believe that this approach will strengthen confidence in independent courts, as opposed to individual disciplinary proceedings that would decrease it.



Response from IUSTITIA - Association of Polish Judges

The Supreme Court after 1990 was one of the most screened institutions. In 1990 the term of office of all Supreme Court judges nominated in times of communism expired and its entire composition was reestablished with the participation of the newly created (by Solidarity government) National Judicial Council. The new composition included only 22 judges of the previous Supreme Court, the most outstanding, credible and uncompromised:

  • 11 judges out of the total number of 31 remained in the Civil Chamber,
  • 3 judges from the total number of 47 remained in the Criminal Chamber,
  • 3 judges from the total number of 14 remained in the Chamber of Administration, Labour and Social Insurance,
  • 5 judges from the total number of 19 remained in the Military Chamber.

That means that 98 judges (81% of total number of all Supreme Court  judges) have been "verified". So harsh, thorough and effective "verification" probably did not occur in the early 90s, in any environment, body or professional group in  Poland.

In present Supreme Court, there are only few judges presiding, who held the post during the martial law, but none of them can be accused of any kind of misbehaviour at that time. If this is the case, then current authority should perform an individual assessment rather than total political cleansing. (this is also the assessment of Professor Adam Strzembosz, the icon of the Polish judiciary and the First President of the Supreme Court in 1990-1998,,75398,22936039,sztrzemsz-ze-sedzieach-sad-najwyzszego-wachowali- Aug-przyzwoicie.html

Meanwhile, the ruling party designated Stanisław Piotrowicz as a Chairman of the Parliamentary Committee on Justice and Human Rights. Ironically, Stanisław Piotrowicz is a former communist prosecutor and member of the Polish communist party, who persecuted oppositionists and for his loyalty received the Bronze Cross for Valor from communist government, he is now leading the “reforms” devastating Polish judiciary.

It is true, that the Supreme Court made on December 20th, 2007 a resolution in case I KZP 37/07. It was well argumented rule, entered into book of legal principles. A controversial resolution, but we can’t agree that it was caused by the will to protect older friends from responsibility.

Polish Judges make obligatory verification statements and the consequences for false statement is immediate dismissal from a post of judge.

The intention of political power is to depreciate judges and courts, a fact further proven by infamous billboard campaign produced and executed using money of the state-owned companies, media statements of prominent politicians of the ruling party and state media. This is a standard activity since the last change of political power in Poland. These activities, often deceitful, lead to lower public trust in judiciary – which anyway is higher than that of the parliament and the government.

The term „judges in question” requires further clarifications, also regarding who will decide about which judge and why is “in question”.  The Supreme Court will be populated in majority by new judges, selected by judges elected to NJC by the ruling party politicians. Judiciary has no influence on that and - as well as the law science society – distances itself. This is further confirmed by numerous resolutions of all legal societies, including those practicing and those researching law. So the statements that judges respect new Supreme Court members, appointed in such way, is not true.

We also believe that the question of faith and its strength shall be evaluated by other kinds of specialists.

Under the new law the legendary figures defending human rights during communist regime in Poland, who now serve in Supreme Court (such as, for example, Stanisław Zabłocki – defender of opposition activists in the communist era, Józef Iwulski - Solidarity's court activist in the 1980s, and many others, meritorious in actions for the observance of human rights) will be forced to retire prematurely.

The “reforms” of Supreme Court and National Judicial Council were best summarized by aforementioned former communist, now member of ruling party, deputy to Sejm and president of the Commision of Justice and Human Rights “it is all about the qualitative change of judges, who will become the people with servant mentality, servant to people and nation, rather than mentality ruling the nation”





Recommendation 2.1.2.(16) KE

“President of the Republic as an elected politician should not have the discretionary power to extend the mandate of a Supreme Court judge beyond the retirement age”


PL government position

Similar system is applied in the UK where such power is vested in Lord Chancellor (who does not even have to be elected by the people, but appointed to the Cabinet at HM Prime Minister’s will).

In France the judges of the common courts may also have their term extended – the decision is taken by the Supreme Council of the Judiciary (of which - as mentioned above - only 6 out of 22 members are judges) - if the proposal is submitted by the Minister of Justice; the Minister may also indicate that the interested judge shall take a post in a different court of the same or lower level.

Several reforms of the judicial retirement age took recently place in Italy. In 2014 it was decreased from 75 to 70 years . In August 2016, the age was increased to 72 years for the judges of the Cassation Court and in 2017 the government proposed similar increase for the rest of the judges.

Italian National Association of Judges have vehemently protested all the reforms, deeming them unconstitutional and ad personam, i.e. proposed in favour of several particular judges.

To this day all the Italian reforms are valid, and neither the European Commission nor Venice Commission seem to be concerned as they were also never bothered by British of French legislation, for that matter.



Response from IUSTITIA - Association of Polish Judges

The Constitution of the Republic of Poland does not envisage such presidential prerogatives to interfere in the affairs of judiciary.

The law does not provide any criteria defining when the President can/cannot extend a post to a judge. The ambiguity of presidential decisions were evident already in 2015, when the President refused to nominate 10 persons to a post of a judge. We have never learnt the grounds for President’s decision (many of those persons have filed a complaint in ECHR). But the Constitution only states that President only performs an act of nomination, based on the decision of National Judicial Council (we have similar situation in most of EU countries, e.g. in Denmark, the Netherlands, Romania, Italy, etc.)

Similar regulation applying to polish common court judges has entered into force several months ago. Here the decision is made by the Minister of Justice, who does not, in any way, justify why he allows some common courts  judges to keep the post while he denies this right to others (usually women, who are to retire at the age[1]  of 60, whereas male judges retire -  according to new law - at age of 65). In majority of cases the decision is negative and there is no single sentence of justification. It seems that from the President, we can expect the same behavior regarding Supreme Court judges.

The law does not provide any means for appealing this arbitrary decision of the President. It is not known, why the age of 65 was accepted as the retirement age (according to Supreme  Court judges). It is even more questionable if we consider the age of the parliament members (deputies and senators), who are actually creating the law.

References to foreign judicial systems have this basic flaw, that Poland is ruled by the Constitution of the Republic of Poland, so Polish law shall conform with Polish Constitution. The latter assumes in Art.180 p.1, irrevocability of judges until the retirement age. Lowering the retirement age by 5 years, while empowering the executive power with arbitrary decision on the extension of the judge’s post beyond the retirement age is a violation of art. 180 p.1 and art. 10 of the Constitution. We can imagine the change of the retirement age, but excluding the judges already at post and assuming proper (long) vacatio legis. Such was the case of UK, where vacatio legis was set to two years.

Besides, in all considered cases, the retirement age was lowered to 70 years (not to 65) and extension of the post depends on a permission of collective body rather than arbitrary decision of executive power (except for UK, were long tradition created a custom of checks and balances)

The only case of changes similar to those introduced by Polish government that can be somehow compared can be seen in Hungary. Unequivocally negative assessment of those changes is included for example in the ECHR sentence of June 23rd, 2016 (Baka vs Hungary). 





Recommendation 2.1.3 (18)

„the extraordinary appeal can be lodged if it is necessary to ensure the rule of law and social justice and the ruling cannot be repealed or amended by way of other extraordinary remedies, and either it (1) violates the principles or the rights and freedoms of persons and citizens enshrined in the Constitution; or (2) it is a flagrant breach of the law on the grounds of misinterpretation or misapplication; or (3) there is an obvious contradiction between the court's findings and the evidence collected”

Recommendation 2.1.3(20)

the extraordinary appeal procedure is dangerous for the stability of the Polish legal order (...) it will be possible to reopen any case decided in the country in the past 20 years on virtually any ground and the system could lead to a situation in which no judgement will ever be final anymore”


PL government position

Violation of constitutional principles, rights and freedoms may hardly be called virtually any ground, as well as flagrant breach of the law or obvious contradiction between the court’s findings and evidence.

Those two paragraphs of EC Recommendation are self-contradictory (obviously and flagrantly, for that matter).

Both the Venice Commission and the European Commission disregarded the fact that even under current legislation any case may be reopened without no limitation at all.

Article 540 of the criminal procedure code (in force since 1997) does not provide for any deadline to reopen the case if only the convicted provides new evidence in their favour. Article 408 of the civil procedure code (in force since 1965) stipulates no such deadline as well - if the party was either deprived of the ability to exercise their rights or unduly represented.

After ordinary remedies are exhausted, each and every court sentence remains final and enforceable - unless the case is reopened because of extraordinary circumstances, and then a different ruling is delivered after independent judicial review. It has been like that for years - and will remain so after the reform.

New legislation sets some new grounds (and not virtually any ground) for reopening the cases, thus granting citizens wider access to independent court revision.

Before a case is reopened it will have to be examined by the Ombudsman or the Prosecutor General, which guarantees that new procedure will be applied only when those organs deem it necessary.



Response from IUSTITIA - Association of Polish Judges

Mechanisms mentioned by Polish government (like resumption of proceedings) assume the possibility of annulment of judgment delivered in very particular circumstances (when e.g. a party was deprived of the possibility to defend itself or the verdict was based on fabricated evidence). There is even one extra procedure, introduced 10 years ago, regarding cases, where the trial was proper but the verdict is invalid (and the party did not notice this fact before the deadline for the appeal). But in order to ensure the legal stability, the former verdict is not annulled, but the party is given a compensation.

Extraordinary appeal can in turn completely destabilise the legal order:

  1. The grounds for extraordinary appeal are imprecise and may be given a broad meaning, as they include: “(1) violation of constitutional rights and liberties, (2) flagrant violation of law on the grounds of misinterpretation or misapplication,  (3) there exists an obvious contradiction between the court’s findings and the evidence collected”. 
  2. Unjustified time for extraordinary appeal. It may be filed for any case which has been finalized in last 20 years.
  3. No citizen (who stood trial resulting in a verdict finalized within last 20 years) can be sure that an unhappy opponent is not going to reopen the finalized case (especially if a citizen or a foreign business won against State Treasury)
  4. Extraordinary appeal may (due to the public interest or state interest) be filed against the interest of a citizen (there are no limitations in this scope). So (even though Morawiecki states otherwise) the citizens are not actually given another mechanism protecting their rights, but in contrary – this is another mechanism unavailable to citizens and serving other purposes.
  5. The formation of the court considering the appeal will include two judges newly appointed by new National Judicial Council (or at least one judge seconded by the Minister of Justice) and a lay-judge – elected by the ruling party (a case in the Extraordinary Control and Public Matters Chamber)
  6. A question arises: what are the guarantees that the verdicts following extraordinary appeal will not be „flagrantly unjust” anymore? There are no such guarantees, as the experience of several hundreds of years of forming various mechanisms of appeal in various legal systems, shows that the multiplication of court levels does not guarantee verdicts free from any flaws. The chance that following the extraordinary appeal, the new verdict will not be “flagrantly unjust” is accompanied by the risk, that the appeal will lead to annulling valid verdict and that the new verdict will hurt the citizen.
  7. The project promoter makes it clear, that he is inspired by former „extraordinary revision” (art. 6 of the justification). This clearly explains the intentions of the project promoter regarding stability of verdicts and shows how this stability will be respected by political power (legislative and executive authority). Extraordinary revision was a construct of totalitarian state, existing in a political system without separation of powers, giving the control over final verdicts to politicians, who took precautions to ensure that the courts and judges remain practically dependent from them
  8. There are major reservations regarding the legitimacy to file an extraordinary appeal. Next to the bodies having systemic right to file an extraordinary appeal (Ombudsman, Ombudsman for Children, Ombudsman for Patients), the new law gives the legitimacy to the bodies able to provide legal representation for the State Treasury or other specific institutions (President of the General Counsel to the Republic of Poland).         
    Thus we experience the bizarre situation, clearly violating the principle of equality (art. 32 ust. 1 of the Constitution) – a body being the legal representative of the State Treasury and other specific institutions (thus one of the parties of the trial in the civil court) has the right (of which the opponent is deprived) to use yet another appeal mechanism in the interest of the institutions it represents and against his opponent.





Recommendation 2.1.4.(23) KE

“The fact that the President of the Republic (and in some cases also the Minister of Justice) has the power to exercise influence over disciplinary proceedings against SupremeCourt judges by appointing a disciplinary officer who will investigate the case (‘disciplinary officer') which will exclude the disciplinary officer of the Supreme Court from an on-going proceeding, creates concerns as regards the principle of separation of powers and may affect judicial independence"


PL government position

Neither the President, nor the Minister of Justice will have any authority over disciplinary courts that ultimately decide whether a judge breached their conduct. All the benches will be composed either of majority of judges (in the Supreme Court) or solely of judges (in the common courts).

Investigation stage needed to be reformed. Society has had little confidence in the judiciary for years, one of the reasons for it being wide perception that judges repeatedly failed to investigate disciplinary cases of their colleagues themselves. While allowing or external impulses that should restore some public trust in this matter, disciplinary verdicts shall remain free from any political influence, as they will be delivered by independent judges themselves.



Response from IUSTITIA - Association of Polish Judges

The possibility of designating one of the prosecutors as Extraordinary Disciplinary Representative enables the Minister of Justice – Prosecutor General to influence particular disciplinary proceedings thus exerting the pressure on selected judges. The Disciplinary Representative, being a prosecutor, will execute Prosecutor General instructions regarding charging of Supreme Court judges, what - in some cases - may influence their judgments in the cases they proceed.

Moreover, a power to appoint Extraordinary Disciplinary Representative lies in hands of Minister of Justice if this competence is not used by the President of the Republic of Poland. The risk is all the greater, because according to article 144 of Constitution of Poland, appointment of Extraordinary Disciplinary Representative by the President requires countersignature of Prime Minister, who like the Minister of Justice, is a member of Polish Council of Ministers (every President’s decision not listed in art. 144 requires such countersignature, appointment of EDR is not listed there). Therefore there is a risk, that Minister of Justice acting jointly with Prime Minister may block President’s candidate, resulting in empowering Minister of Justice to designate his/her own Extraordinary Disciplinary Representative.

The bill introduces “Holy Inquisition” procedure – as stated above, the Disciplinary Representative will represent executive power. The cases will be considered by new judges of Supreme Court, appointed by politicized National Council of the Judiciary. Moreover, salaries of Disciplinary Judges will be 40% higher than the salaries of other judges of the Supreme Court, what constitutes additional premium for prosecutors to take the posts of the judges.  Possibly these salaries are to encourage prosecutors to candidate for judges of the Supreme Court. In addition, adjudicating panels will consist of professional judges and lay judges elected by ruling party (Polish Senate, but it is dominated by the ruling party and lay judges are to be elected by simple majority). And it is important to underline that the disciplinary procedure will also be used against also attorneys, legal advisors etc.

The purpose of new Disciplinary Chamber and other changes in disciplinary proceedings is to petrify – judges and parties’ representatives. New regulations deprive judges of their rights in ordinary disciplinary cases - criminals accused of the most serious crimes have more rights than judges in disciplinary court (limited rights to defense, suspending the limitation period etc.). Detailed description of objections (in Polish) is available here: 





Recommendation 2.1.4.(24) KE

“evidence gathered in violation of the law could be used against a judge [Article 108(23) of the law on the Supreme Court in terms of Article 115C] “


PL government position

It is simply untrue: Article 115C pertains to evidence gathered through surveillance, as provided by articles 168b, 237 and 237a of the criminal procedure code.



Response from IUSTITIA - Association of Polish Judges

When it comes down to article 115c, it allows to include the evidence gathered in an illegal manner.  It may also interfere with the rule of secrecy of the judges’ council. The article 115c certainly contradicts with the European Convention of Human Rights. The Appeal Court in Wrocław ruled on 27.4.2017, II AK 213/16, on the illegally gathered evidence in criminal proceedings.,,9031.





Recommendation 2.1.4.(24) KE

“under certain conditions evidence presented by the judge concerned could be disregarded”


PL government position

‘Certain conditions' being lapse of prescribed time during the investigation stage, and only if the evidence was available for the judge to present during this time [Article 114 § 5 of the law on the Supreme Court] which is no different than most court procedures; the evidence may still be presented before disciplinary court.



Response from IUSTITIA - Association of Polish Judges

An accused judge cannot be charged for refusal to testify. Even if we accept the  opinion, that inadmissibility as evidence is related only to failure to lodge evidentiary motionin due time, we shall emphasize that the proposal maker in fact proposes to abandon the inquisitorial system in disciplinary proceedings. But return to inquisitorial system was the main argument for recent change of criminal procedure code, where the rule of adversary system was heavily criticized and abandoned.

The new bill introduced less favorable (than those guaranteed by criminal procedure code) rules of handling evidential motions, for judges falling under disciplinary procedure. According to art. 114 § 4 u.s.p. & art. 115 § 3 u.s.p. the bodies in charge of disciplinary proceedings may dismiss evidential motions lodged after due time, unless the party proves that the evidence was not known to it  (during proceedings before disciplinary representative) or that the evidential motion could not be lodged for reasons beyond its control (during proceedings before disciplinary court). The criminal procedure code does not anticipate such limitations (see art. 167 & 170 § 1 k.p.k.).





Recommendation 2.1.4.(25) KE

“both [Disciplinary and Extraordinary Control and Public Matters] (. . .) are composed of new judges elected with a decisive influence of the ruling majority.

Also, the Venice Commission underlines that the law will make the judicial review of electoral disputes particularly vulnerable to political influence”


PL government position

All the judges will be recommended by the National Judiciary Council, composed by a majority of judges, elected by the Parliament - but then irrevocable and free from any influence. Again, there is no mechanism that would allow politicians to pressure members of the Council or coerce them to appoint anybody specific for the Supreme Court.

Furthermore, once appointed to the Supreme Court, a judge may not be revoked under any circumstances and therefore remains fully independent - both from politicians (either from Parliament or President), and from the Council that recommended them.

Assumption that members of Parliament, without any mechanism to pressurize National Judiciary Council, that itself has no means of enforcing its will on the judges of the Supreme Court - will somehow affect the verdicts of the latter (on validity of elections or on anything else) seems very far-fetched, to put it mildly.



Response from IUSTITIA - Association of Polish Judges

Regarding irrevocability of judges – members of National Judicial Council – we shall remind that the new law on National Judicial Council terminates prematurely the term of the office of current judges-members of NJC (and only judges, not members who are politicians). This is a direct violation of the Constitution, which states that the term of the office of the member of NJC is 4 years.

As stated before, the lay-judges are obviously dependent on politicians - if they are to be elected by the Senate, with basic majority (since Senate is dominated by the ruling party, the lay-judges will be elected by the ruling party)

Some idea of apolitical new judge of Supreme Court and NJC could be derived from observation of the Constitutional court. Here the members of the ruling party became judges and persons unlawfully nominated to judges positions in the Constitutional Court. Even now, a new candidate for a judge of Constitutional Court is long-time member of “Law and Justice” party, ruling in Poland. One of the judges of the Supreme Court, presented himself in UK as the “representative of Polish government”. See:,sedzia-lech-morawski-w-oxfordzie,mid,2002175,cid,4051,klip.html?ticaid=61aa39,,

How to defend the argument of “apolitical judge” if the members of NCJ are to be recommended by political parties (the new law assumes that each party proposes their own candidates)? The new law does not guarantee at all, that the candidates to NJC are real representatives of judges. It allows to run for NCJ to non-adjucating judges delegated to the Ministry of Justice, where they work as normal clerks. It also enables presidents of courts, newly appointed by Ministry of Justice (who can dismiss them at will) to run for NCJ.

Since the candidates may be proposed just by 25 judges (out of 10.000 on duty), it may happen that all candidates to NJC are proposed by the same, 25 men-strong group of judges.





Recommendation 2.1.2.(16) KE

“As observed by the Venice Commission, introducing lay judges to the two new chambers of the Supreme Court puts the efficiency and quality of justice in danger”


PL government position

Article 182 of the Polish Constitution provides that the citizens should take part in the administration of justice. Participation of lay judges in the process is a well-established way to ascertain that in many legal systems. It is very surprising that both the European Commission and the Venice Commission deem it as dangerous to quality and efficiency of justice; it seems way more dangerous if we continue to exclude general public from its administration, further diminishing public trust in the judiciary, widely perceived as a closed, inaccessible environment.

As the specifics of lay judges participation may be disputed, general principle should not only allow it, but promote on every possible level.



Response from IUSTITIA - Association of Polish Judges

Increasing the trust in judiciary by introducing the society factor will only happen, if this very society (citizens) elect their lay-judges in direct, democratic elections. It is a parody of democracy, that the lay-judges of Supreme Court will be elected by politicians of the Senate. Surely putting elections of lay-judges in the hands of senate is constitutionally invalid, since it leads to politicization of the judging panel. The argument of “increasing public trust in judiciary” is rather unfortunate, since the Senate has lower public trust than judiciary.

The argument that lay-judges shall sit in panels of all level of courts is also invalid. In principle they shall judge in common courts of the first, possibly second level. But never in Supreme Court (see CEPEJ report:


Lay-judges are predominantly „judges of facts”. While the experience and general knowledge of lay-judges can be important in common courts, the specifics of the Supreme Court, which employs “the judges of law” leaves no opportunities for lay-judges.

Current government does not mention about the increase of the society factor in courts. Moreover, in the proposal of changes to criminal conduct from 2007, when current Minister of Justice, Zbigniew Ziobro, held the same government’s position – a law reducing the participation of lay-judges in common courts was introduced. It was justified as the need to minimalize lay-judges panels in order to strengthen professional judges – and to enforce the protection of rights and sense of security of citizens (Fifth term of Sejm, document no. 639). So a question about the true intensions of politicians remains.

Up till today, the lay-judges (in a very limited number) operate only in 1-st level courts and do not participate even in considering appeals. That makes their introduction to the Suprem Court even more questionable.

Lay-judge in Supreme Court, as fully fledged member of the panel, will often face the need to interpret the regulations and analyze the legal standards, what requires broad legal expertise, hard to expect from a college graduate (this is the educational requirement for lay-judges in Supreme Court). This also refers to adjucating in disciplinary cases, where the panel assesses the disciplinary offense, constituted by flagrant and obvious violation of the legal rules during issuing of judgements.  





Recommendation 2.2 (31) KE

“Well established European standards, in particular the 2010 Recommendation of the Committee of Ministers of the Council of Europe stipulate that  ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary”.



PL government position

It is true that all the documents cited in EC Recommendations say so - but may it be actually labelled a well-established European standard? Many EU Countries follow different guidelines - and their judiciaries hardly raise any concerns.

In Denmark, only 5 out of 11 members of their respective council are judges. In France - only 6 out of 226. In Portugal – 8 out of 177. In the Netherlands there is currently a 2 - 2 distribution, but the law  does allow for a 3 - 2 majority for non-judicial members. In Germany there is no such council at all - but the committee that appoints judges (which is Council’s most significant power) is composed solely of politicians from legislative and executive branch...

Polish Constitution provides extensive, more than 2/3 majority of judges (17) over non-judicial members of the Council (8). The Constitution does not specify who should elect the judges, allowing a regular law to set the rules. However, since the term of the Council is fixed, its members shall remain independent no matter who elected them, be it the Parliament, their colleagues or general public.

New legislation is very similar to Spanish Law on Judicial Power that also provides majority of judges in the Council for the Judiciary (12 - 8), and that all of its members are elected by the Parliament for a fixed term.

Since so many EU member states follow criteria that do not comply with those established in documents invoked in EC Recommendation, it is groundless to accuse Poland of breaching European standards – as law the after the reform still grants judiciary wider independence from other branches of power than in several other countries.



Response from IUSTITIA - Association of Polish Judges

Polish government simply manipulates the facts, referring to selected, distinct elements of individual European political systems.

First of all, it is the Constitution of the Republic of Poland that states that judge members of National Judicial Council are elected by judges themselves. Admittedly, it is not stated expressis verbis, however historical, grammatical and systemic interpretation of the Constitution leaves no doubt. The composition of the Council and most importantly, the fact that judge members shall be elected by the judges, has been established already during the negotiations at the Round Table in 1989, where de-politicizing judiciary was a priority (Jarosław Kaczyński and prof. Adam Strzembosz - the 1st President of the Supreme Court after 1989,  both took part in these negotiations).

Meanwhile, the new bill provides that the candidates for judge members of the National Judicial Council are to be proposed by political parties and can be voted by simple majority, which is obviously contradictory to rule of apolitical judiciary.

The best European standards, developed by Venice Commission assume that:

“44.  In  Europe,  a  variety  of  different  system s  for  judicial  appointments  exist  and  that   there is not a single model that would apply to all countries.

45.  In  older  democracies,  the  executive  power  has  sometimes  a  decisive  influence  on judicial  appointments.  Such  systems  may  work  well  in  practice  and  allow  for  an independent  judiciary  because  these  powers  are  restrained  by  legal  culture  and  traditions, which have grown over a long time.

46. New democracies, however, did not yet have a chance to develop these traditions, which   can   prevent   abuse,   and   therefore,   at   least   in   these   countries,   explicit constitutional and legal provisions are needed as a safeguard to prevent political abuse in the appointment of judges.”

“48. An appropriate method for guaranteeing judicial independence is the establishment of  a  judicial  council,  which  should  be  endowed  with  constitutional  guarantees  for  its composition, powers and autonomy.

49. Such a Council should have a decisive influence on the appointment and promotion of judges and disciplinary measures against them.

50. A substantial element or a majority of the members of the judicial council should be elected  by  the  Judiciary  itself.  In  order  to  provide  for  democratic  legitimacy  of  the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualifications.”

The National Judicial Councils function in Belgium, the Netherlands, Denmark, England and Wales, Italy, Portugal, Spain, France, Greece, Sweden, Ireland, Scotland, Slovenia, Slovakia, Bulgaria, Romania, the Czech Republic, Lithuania, Latvia, Croatia, Serbia and Ukraine. The standards were first defined by  France, Italy and Greece. In the Conseil Supérieur de la Magistrature, judges themselves do not have an advantage, although the vast majority of the council is composed of lawyers appointed by professional bodies independent of politicians (out of 22 members – 6 are judges elected by judges, 6 are prosecutors elected by prosecutors, President of the Court of Cassation, Attorney General and 8 prominent lawyers ). In the 1970s, after the collapse of authoritarian regime, the Councils were established in Portugal and Spain. At the turn of the 1990s and 2000s, as a result of public debate regarding the institutional strengthening of the independence of courts, the creation of Judiciary Councils also took place in Denmark, the Netherlands, Ireland and Belgium. Around year 2000, in Sweden, Finland and Norway, deep reforms aimed at increasing the transparency of the judges' nomination process and statutory independence from politicians occurred, regardless of existing good practices in this area. In Sweden the Council has been operating for 70 years, but its job before, was to manage the courts.

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