The European Commission is criticising judicial reforms undertaken by Poland’s governing Law and Justice (PiS) party. The Commission’s First Vice-President Frans Timmermans has said the reforms pose a threat to the separation of powers and judicial independence in the country and suggested that Polish courts would come under political control if the laws were enforced. Are the proposed procedures for selecting members of Poland’s National Council of the Judiciary (KRS) and Supreme Court judges really a shift away from European standards?
Poland’s National Council of the Judiciary is an institution enshrined in the constitution. Among other responsibilities, its role is to review and assess candidates for judges. It also submits proposals to the president to appoint judges of the Supreme Court, the Supreme Administrative Court, common courts as well as provincial administrative and military courts. Moreover, the KRS has the power to submit requests to a special disciplinary officer to take disciplinary action against judges. In a nutshell, the KRS decides who will become a judge and whether a judge neglecting their duties will be held responsible.
The KRS is composed of 25 members. Under the current law, these are the first president of the Supreme Court; the president of the Supreme Administrative Court; the justice minister, a member selected by the Polish president; four members selected by the Sejm lower house of parliament from among the house’s deputies; two members selected by the Senate, the upper house of parliament, from among senators; and 15 members selected by judges (two from the Supreme Court, two from appeals courts, two from administrative courts, eight from regional courts, and one from a military court).
The reform proposed by the ruling PiS party aims to change the way in which this last group of KRS members is selected.
Under the amended law regulating the council’s work, its members/judges will be selected by the Sejm. Under the original version of the law drafted by PiS, this was to happen with a simple majority of votes. But President Duda came up with an amendment to have KRS members/judges chosen by a three-fifth majority.
What does this mean for Supreme Court judges?
At the moment, the court’s first president and the heads of its individual chambers are appointed by the head of state at the request of the Supreme Court’s General Assembly. The head of state also appoints individual Supreme Court judges, but he does that at the request of the KRS.
Under the new regulations pushed through by PiS, the Supreme Court’s first president would still be appointed—with no change from the current arrangement—by the head of state at the request of the Supreme Court’s General Assembly. However, the assembly would have to propose three candidates for this post, and not two as is the case now. Does this arrangement differ from European standards in any way? How are judges selected in some other countries in the European Union? Here’s a brief overview.
The five most important judicial institutions in Germany are the Federal Court of Justice, the Federal Labour Court, the Federal Social Court, the Federal Fiscal Court, and the Federal Administrative Court. They are roughly equivalent to Poland’s Supreme Court and Supreme Administrative Court. Under the German constitution, candidates for judges on these courts are named by the federal minister of justice (equivalent to Poland’s Justice Minister Zbigniew Ziobro) and by a 32-member recruitment commission (of which 16 members are selected by the parliament and the other 16 by the justice ministers of the country’s individual states).
The same commission selects judges for the five courts. The appointments are subject to approval by the German federal government. Once such approval is granted, the country’s president formally appoints a judge.
All this goes to show that judges in Germany are selected by politicians.
What’s the situation like at the other end of Europe?
In Spain, judges are selected by the General Council of the Judiciary, roughly the counterpart of Poland’s KRS. The council is headed by the president of the country’s Supreme Court, and its remaining 20 members are selected by the parliament by a three-fifths majority from among candidates recommended by the Electoral Commission operating out of the Supreme Court.
The Spanish system is close to the model urged by Poland’s ruling conservatives.
What about France, a country whose presidents, both the current one and his predecessor, have been known to rebuke Polish politicians over rule-of-law issues? It turns out that in that country too, politicians have a significant influence on the selection of judges.
Judicial appointments in France are determined by the country’s High Council of the Judiciary. This is composed of 12 members, but given the specific features of the French system of government, the nation’s president has the majority of votes in the council. How so?
The president of France is himself part of the High Council of the Judiciary, and he also appoints three of its members. The other members are: the heads of the National Assembly and the Senate (both usually come from political parties allied with the head of state); the justice minister (usually politically close to the president); a prosecutor; a representative of the country’s constitutional court; and five judges. This inevitably means that the president -- a politician -- has the majority of votes in the High Council of the Judiciary.
The European Commission’s Timmermans, a Dutchman, has often hit out at Poland, suggesting it disrespected European standards. He has also lambasted the government in Warsaw over judicial reforms.
In Timmermans’ native Netherlands, judges are appointed by royal decree. This takes place at the request of the justice minister. Candidates are named by the country’s Council for the Judiciary, which is half composed of judges selected by members of the judicial community. If there are two candidates for one spot, the justice minister makes the final choice.
This brief overview shows the extent to which democratically elected politicians have a say in the process of selecting judges. Their influence varies from one EU member state to another.
Michał Fabisiak, PolskieRadio.pl