No Transparency of Election of Judges to New Polish National Council of the Judiciary

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Three months after Civil Development Forum (FOR) inquired the Minister of Justice about the judges who supported the candidates for the new National Council of the Judiciary (NCJ), we have received answers with mostly… blank pages. As the Minister did not provide all the requested information we face yet another legal battle (after the lawsuit against the decision of the Chief of the Chancellery of the Sejm – lower chamber of the Polish Parliament) in the administrative court for the openness and transparency of public life.

It must be borne in mind that, at the beginning of the year, the amendment to the Act on the National Council of the Judiciary entered into force. It introduced the unconstitutional procedure allowing the Sejm to elect the judges to the judicial part of the NCJ (15 out of 25 members). Moreover, the amendment submitted by Law and Justice’s MP Waldemar Buda excluded “the attachments to the documents” (in particular lists of supporters of the judges) from the documents to be published by the Speaker of the Sejm.

We are convinced that the lists of supporters of judges applying to the National Council of Judiciary qualify as public information. These are also necessary to check whether there were any links between the judges that support the candidates and the Minister of Justice. The Speaker of the Sejm refused to give us access to the lists of candidates’ supporters, which is why we filed a complaint to the administrative court and await the hearing.

The lists received by FOR
The lists received by FOR

According to the Act on the National Council of the Judiciary, the status of judges that support an application is to be verified by the Minister of Justice. To this end, the Speaker of the Sejm sent the non-disclosed attachments to the Ministry of Justice and then received a reply. Therefore, we have requested the content of this very correspondence using the constitutional right of access to public information. This information would allow us to obtain the names of the judges supporting the candidates for the National Council of Judiciary, bypassing the Speaker.

After two months of waiting we received a response from the Ministry of Justice. A letter, which has almost 70 pages long, did not contain personal data of the judges who supported the applications to the National Council of Judiciary. All the names were removed from the documents so we can only see the empty lists. Only a small part of the information from the annexes was made available, as – according to the Minister’s interpretation – attachments cannot be disclosed. He believes that the provision of the Act on the National Council of Judiciary, requiring the Speaker of the Sejm to publish applications “with the exception of attachments” also applies to him.

From the received documents we can find out the number of judges who supported the candidates (from 25 to 57). The provided information also indicates that the Minister of Justice requested the President of the Supreme Administrative Court to confirm the status of a judge in the case of several signees.

From the point of view of exercising the parliamentary mandate, the letter dated February 27, 2018, enclosed at the end of the document, is important. The Minister returned to the Speaker of the Sejm all previously obtained attachments which “have not been returned earlier by mistake”.

It is interesting that the date of this letter coincides with a parliamentary intervention in the Ministry of Justice, announced by two opposition MPs on that very day: February 27, 2018. That day the deputies were supposed to request the undisclosed attachments to the applications of candidates for the National Council of Judiciary. However, due to the need to “prepare materials” for the MPs intervention, the planned visit to the Ministry of Justice was postponed to the next day. During the intervention on February 28, 2018, Michał Woś – Undersecretary of State in the Ministry of Justice – informed the deputies that the requested documents had been sent to the Speaker of the Sejm, and the Ministry did not archive them.

It is difficult not to regard the Ministry’s actions as deliberate in order to limit the deputies’ rights. The Ministry knew which documents parliamentarians were looking for, but under the guise of their “preparation,” they returned them to the Chancellery of the Sejm. The last of the letters regarding the Minister’s confirmation of the status of judges is dated on February 2, 2018. For 25 days, the Ministry kept the annexes, and no one forwarded them to the Speaker of the Sejm. This was done on the day of the planned parliamentary intervention.

We do not accept such actions, and we will submit another complaint to the administrative court as soon as possible. We also wrote to the President of the Supreme Administrative Court, requesting his correspondence with the Minister regarding the verification of the status of several judges supporting the candidates (from administrative courts).

The battle for transparency of the procedure for the selection of judges to the new National Council of the Judiciary is not over, and the identity of the candidates’ supporters will be sooner or later disclosed.

Patryk Wachowiec
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