The proposed solutions are a response to the flawed system created by the previous government. We want to fix it and restore normality in this area,

- said Deputy Minister of Justice Dariusz Mazur.

He pointed out that around 2,500 improperly appointed judges are currently adjudicating in courts.
 

This is a consequence of the original sin – the politicisation by Zbigniew Ziobro of the selection of 15 judges to the National Council of the Judiciary. More than 700 cases before the European Court of Human Rights are a consequence of the pseudo-reform of the judiciary

- he pointed out.

The assumptions of the regulation submitted for consultation include:

- a clear definition of the effects of resolutions adopted by the National Council of the Judiciary, formed in violation of the Polish Constitution, in 2018-2025, with regard to all judges affected by these resolutions, taking into account the conditions and circumstances relating to the groups of judges indicated in these resolutions;

- the provisions of the bill divide the judges covered by the bill into three main groups:

a) novice judges (the so-called green group, numbering approximately 1,000 people), i.e. primarily former assessors, former assistant judges and referendaries, whose status is to be remedied by resolutions of a future, properly constituted National Council of the Judiciary,

b) judges who were promoted after being assessed by the unconstitutional National Council of the Judiciary (the so-called yellow group, numbering approximately 1,200 people); judges from this group will be reinstated to their previous positions by virtue of the act (ex lege), but will be delegated for two years to their current positions so as not to paralyse the courts where they currently work; during the period of delegation, they will receive remuneration similar to their current remuneration and, unless they resign, will be entitled by law to participate in repeated competitions, which will be open, and their results will be subject to review by the Supreme Court;

c) persons who entered the judicial profession from other professions (the so-called red group, numbering approximately 400 persons) as a result of participation in competitions before the unconstitutional National Council of the Judiciary; these persons will either return to their previous professions, provided that professional corporations accept them, or will be able to become referendaries; these persons will also be automatically entered into the repeated competitions, unless they waive this option.

- detailed definition of the statutory rules for the delegation of judges from the yellow group, their duration, and the rules under which they may be extended or terminated;

- definition of the legal situation of judges who, as a consequence of the entry into force of the proposed regulation, will lose the possibility of exercising the office of judge;

- regulation of the rules for re-competitions before a properly constituted National Council of the Judiciary, after the creation of vacant judicial positions as a result of the entry into force of the Act, following the transfer of judges to lower positions or the deprivation of their judicial status by virtue of the Act;

- introducing regulations to ensure the proper functioning of the justice system until the properly constituted National Council of the Judiciary completes proceedings concerning vacant judicial positions;

- regulating the system for overturning rulings issued with the participation of unauthorised persons and specifying the conditions for initiating and conducting proceedings in this regard; as a rule, rulings issued with the participation of incorrectly appointed judges are to remain in force, but parties who, during the proceedings, and subsequently in an appeal against the judgment, consistently challenged the status of incorrectly appointed judges will be able to submit a request for the proceedings to be reopened within one month of the Act entering into force; this option will not apply to judgments with irreversible effects,

- changes to the constitutional basis for the functioning of common and military courts, administrative courts and the Supreme Court, in particular changes in disciplinary responsibility, the restoration of judicial self-government, a transparent system for selecting court bodies, and the abolition of offences introduced by the muzzle law.

The Venice Commission, as a specialised advisory body of the Council of Europe, is the competent institution to give an opinion on the draft in question. The submitted assumptions concern an internationally unprecedented legal act aimed at removing the effects of the ongoing changes of systemic guarantees that undermined the independence of the Polish judiciary, which has been ongoing since 2016 and limits the right of citizens to an independent and impartial court established by law. The key objective of the draft is to regulate the status of judges appointed between 2018 and 2025 in the course of competition proceedings before an irregularly constituted National Council of the Judiciary, so that no one can question the legality of their decisions.

The draft bill submitted to the Venice Commission is intended to restore constitutional order in Polish ordinary, administrative and military courts, as well as in the Supreme Court.

The starting point and legislative basis for these assumptions is the draft law submitted to the Minister of Justice by the Commission for the Codification of the Court and Prosecution System on regulating the effects of NCJ resolutions adopted in 2018-2025, in a variant assuming that these effects will occur by operation of law. This option will apply to a group of judges who were promoted before the NCJ not properly formed and those who came from outside the judicial profession. For the group of novice judges, the effects of the act will take effect through resolutions of the future, properly constituted KRS. The correctness of the assignment of persons subject to statutory evaluation to specific groups will be reviewed by the Supreme Court.

 

* The modified version of the draft law includes new provisions on the reform of extraordinary appeal, in the context of abolition of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court, in accordance with the Court of Justice of the European Union judgement of 21 December 2023.