Neo-judges for new competitions – says prof. Safjan

Prof. Marek Safjan – in the photo at the top – about restoring the rule of law in Poland he spoke on November 11, 2023 on TVN 24. The opportunity to talk was the signing of a coalition agreement by the parties of the democratic camp on Friday, November 10. The agreement stated that the new government would restore the rule of law. KO, Lewica and Trzecia Droga promised that the courts would be free from political pressure and that the prosecutor’s office would be independent and apolitical.

And further: ‘We will ensure the legality of the functioning of the justice system and constitutional courts. We will make every effort to restore its constitutional and apolitical shape National Council of the Judiciary and the Supreme Court. Courts must be close to citizens and serve them. We will shorten the time and lower the costs of court proceedings. It is also necessary to relieve the courts of matters that can be resolved administratively.

And one more fragment of the coalition agreement: “We will restore the impartiality and authority of other state bodies that have been turned into party annexes in recent years. We will rebuild the civil service and reform the legislative process, opening it to broad public consultations.

The new government will be formed before Christmas at the latest. Justice Minister Zbigniew Ziobro wants to use this additional time given to the outgoing PiS government by the president. He quickly appoints new court presidents and a new director of KSSiP. Last minute promotions are given to trusted prosecutors.

The minister also announces competitions for neo-judges. He has already announced six competitions for 48 positions. But it is speculated that the minister wants to announce the recruitment of as many as 250 neo-judges.

His personnel moves will only deepen the chaos in the justice system. And they will make it difficult to restore the rule of law. Therefore, the actions of the new government and the Sejm will have to be quick and decisive to limit the damage.

In an interview for TVN24, prof. Marek Safjan, when asked by a journalist what to do with the neo-National Council of the Judiciary, replied that the 15 judge members of the Council may dismiss the Sejm by resolution. These members are judges who cooperated with Minister Ziobro. They were elected, contrary to the Constitution, by PiS MPs, i.e. politicians. And they can be dismissed in the same way.

Prof. Safjan said that the neo-National Council of the Judiciary is “a source of reproduction of pathology in the justice system” and there will be no healing of the courts without changes to the National Council of the Judiciary. He compared it to bad money. He said that it is possible to eliminate counterfeit money, but the problem will not disappear as long as there is a matrix for its production.

The neo-KRS is contrary to the Constitution, which does not allow politicians to elect judges to the Council. This can be done by judicial circles. But PiS changed the regulations to have its own Council. It is politicized, which is clear from the judgments ECtHR, CJEU, Supreme Court and NSA. Prof. Safjan said that the neo-KRS has no legitimacy or credibility. Therefore, its judge members should be dismissed by the Sejm. And there is no need for a law for this.

A TVN24 journalist asked whether the neo-judges nominated by the neo-National Council of the Judiciary should once again participate in the competition before the legal National Council of the Judiciary. Prof. Safjan replied, “Yes, I have a clear view. New competitions and a new judge nomination procedure. The justice system can function properly if it enjoys trust and credibility.

Prof. Safjan emphasized that the Polish justice system lost credibility in December 2015 due to changes in the Constitutional Tribunal that were inconsistent with the Constitution. It was then that three double judges were elected to the Constitutional Tribunal, who took the place of three legal judges, previously elected by the Sejm by the KO-PSL coalition (they were not sworn in by the president).

And now the courts must regain the trust of citizens. And this will be possible if they are sure that there are independent judges in the courts, and not neo-judges. Prof. Safjan emphasizes that for the good of citizens, the judgments issued with the participation of neo-judges must remain unchanged.

Earlier on these issues, prof. Marek Safjan said in an interview for OKO.press. He then supported the quick liquidation of the National Council of the Judiciary and the renewal of nominations for neo-judges.

Prof. Marek Safjan also talked in an interview for TVN24 about how to fix the situation in the Constitutional Tribunal. In his opinion, the double judges should be dismissed by a resolution of the Sejm, which will be the implementation of the Constitutional Tribunal’s judgment stating that their election was invalid. Prof. Safjan recalled the ECtHR’s 2021 judgment in the Xero Flor case, which held that understudies are not judges. And the judgments issued with their participation are not binding.

Prof. Safjan emphasized that since they are not judges, all judgments issued with their participation are invalid. He wondered whether the Sejm should eliminate them by considering them non-existent, or whether the Supreme Court should do it.

The same applies to the Constitutional Tribunal’s judgment on abortion, or judgments questioning the application of ECtHR and CJEU judgments regarding courts in Poland. Prof. Safjan emphasized that repairing the justice system after 8 years of PiS rule is more difficult than after the fall of the Polish People’s Republic in 1989.

Prof. Safjan also commented on the appointment of a candidate by the outgoing government as a new Polish judge of the CJEU. She will replace prof. Safjan, whose term has long expired. The government is in a hurry to choose his successor before handing over power. And he appointed theologian Dr. Hab. as a candidate. Dobrochna Bach-Golecka from the University of Warsaw, who cooperated with Ordo Iuris.

Professor Marek Safjan said on TVN24 that the government’s sudden acceleration in this matter raises doubts. That the procedure was based on incomplete documentation regarding the candidates and it is not known who sat on the competition committee. And that the candidates were asked, among others: for the principle of primacy of EU law over the Constitution.

This was to show the committee whether they accepted the judgments of the Tribunal of Przyłębska questioning the validity of the judgments of the CJEU in Poland. He recalled that the EU requires a candidate for a CJEU judge to have 20 years of experience in high positions.

Prof. Safjan stated that such accelerated proceedings take away the credibility of the competition. He appealed to President Andrzej Duda to refrain from expressing opinions on this candidacy. Scientists from the Polish Academy of Sciences had earlier called for the same thing.