Violation of constitutional provisions, disregard for the Venice Commission’s remarks, lack of proper assessment of the impact of the proposed changes on the judiciary – these are the key objections raised by the Helsinki Foundation for Human Rights regarding the draft law intended to regulate the status of persons appointed to judicial positions with the involvement of the so-called new National Council of the Judiciary (KRS).
Under the proposed regulation, parliament would grant itself the power to decide by statute which judges are to be removed from office or transferred to another post.
“We emphasize that the Sejm should regulate the status of judges appointed by the new KRS in a manner consistent with the principle of proportionality, without exceeding what is necessary to execute the judgments of international and Polish courts. Nowhere in those judgments is there any basis for such a far-reaching intervention in the judiciary,”
explains Dr. Marcin Szwed, a lawyer at the HFHR.
At the same time, those concerned will have no possibility of having such a decision reviewed by a court.
The principle will not apply
In its opinion, the Helsinki Foundation for Human Rights explicitly pointed out that this solution does not meet the requirement of Article 180 of the Constitution, which requires a court ruling for the transfer or removal of a judge from office. It also highlighted that the solution does not comply with the standard defined by the Venice Commission, which stated, among other things, that “it is not permissible to declare by statute that all valid appointments made by the KRS within a certain period of time are null and void.”
The Foundation also raised concerns about the exclusion, in criminal proceedings, of the principle that the defendant’s procedural situation cannot be worsened. The draft assumes that this principle will not apply if, for example, the prosecutor files a motion to overturn a ruling to the detriment of the defendant. The proposal sets no time limits from the moment the judgment becomes final.
“As a result of such a reform, there will be cases where convicted persons who completed serving their sentences long ago will be required to appear to serve an additional sentence imposed in new proceedings, after overturning a ruling already executed with respect to them,”
notes attorney Marcin Wolny, a lawyer at the HFHR.