Judges appointed by the National Council of the Judiciary. The Venice Commission is analyzing proposals for changes
Polish judicial reforms have been the subject of analyzes by the Venice Commission for years. The first request for an opinion was submitted in 2016, after controversial changes introduced by the Law and Justice government. The currently pending opinion on the draft law on the “Restoration of the right to an independent and impartial court” was published urgently on February 27 at the request of the Parliamentary Assembly of the Council of Europe.
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New regulations and their assessment
The draft act, prepared by the Ministry of Justice under the leadership of Waldemar Żurek, aims to solve problems related to the appointment of judges by the politicized National Council of the Judiciary (KRS) in the years 2018-2025. According to the opinion of the Venice Commission, the document pursues two key goals: restoring the rule of law and implementing the judgments of the European Court of Human Rights, which indicate the need to solve the issue of the status of judges appointed during this period and the decisions issued by them.
The committee emphasized that the draft law introduces a legislative framework classifying judges into specific categories, with different legal consequences. A procedure for resuming proceedings in which a judge appointed in a defective manner adjudicated was also introduced.
“Taking into account the unprecedented nature of the situation and the scale of deficiencies that the Polish authorities must remove, the proposed statutory mechanism is understandable and justified,” the document notes. At the same time, it was indicated that some solutions need to be adjusted to better comply with the principles of judicial independence, legal certainty and proportionality.
Recommendations and next steps
The Venice Commission recommends that judges subject to transfer or removal remain in their positions until new competitions are resolved. It was stressed that these competitions should take into account the criteria of judicial independence and political neutrality, and their results must be subject to judicial review. Particular attention should be paid to filling vacancies on the Supreme Court.
The opinion also pointed out the need to limit the possibility for public authorities to question final judgments of administrative courts on an equal basis with citizens. The Commission and the Directorate-General for Human Rights and the Rule of Law of the Council of Europe declared their readiness to continue supporting the Polish authorities in the legislative process.
Polish delegation and reactions
The plenary session of the Venice Commission on Friday will be attended by, among others: Jacek Saryusz-Wolski, advisor to President Karol Nawrocki, and Deputy Minister of Justice Maria Ejchart. Two days before the deliberations, the first president of the Supreme Court, Małgorzata Manowska, appealed for the postponement of consideration of the opinion to enable it to be issued in the ordinary course.
New Polish representatives in the Venice Commission
At the beginning of March, Polish representatives in the Venice Commission were replaced. Prof. Wojciech Sadurski and prof. Monika Florczak-Wątor replaced the current representatives of the PiS government – Joanna Lemańska and Justyn Piskorski. The nominations were presented by the Minister of Foreign Affairs, Radosław Sikorski, who consulted them with the Minister of Justice, Waldemar Żurek.
The Venice Commission, established in 1990, serves as an advisory body to the Council of Europe in the field of constitutional law. Its opinions, although non-binding, often have a significant impact on decisions made by European institutions.
