The limits of Minister Waldemar Żurek's freedom regarding new judges

One of Waldemar Żurek's first decisions as Minister of Justice was to initiate procedures to dismiss 46 court presidents and vice presidents who either participated in the competition for vacant judicial positions or signed letters of support for candidates for this council. They were suspended, and in accordance with the procedure set forth in Article 27 of the Law on the System of Common Courts, the court boards must comment on their dismissals.

On August 5, the Board of the District Court in Gdańsk, in a secret ballot, voted 10:1 against the dismissal of Przemysław Jasinkiewicz from the position of vice-president of the District Court in Gdańsk and Tomasz Jabłoński from the position of president of the District Court Gdańsk-Południe.

Under Article 27 § 5 of the Law on the Organization of Common Courts, a positive opinion from the board authorizes the minister to dismiss a given person, and failure to issue it within 30 days does not preclude such a decision. However, if the opinion is negative, then, as provided in § 5a, the minister may present the intended dismissal, along with a written justification, to the National Council of the Judiciary. However, Waldemar Żurek announced last week that he does not intend to contact the National Council of the Judiciary due to doubts regarding the status of that body.

Is a negative opinion of the court board binding on the Minister of Justice?

The question is, however, whether in the current situation the minister can ignore a negative opinion?

As Judge Dariusz Zawistowski, former chairman of the National Council of the Judiciary, says, generally, if a provision provides that an authority requests an opinion, it is not binding.

"In this case, too, although under the statutory provisions, the opinion is not binding if it receives the approval of the National Council of the Judiciary. However, the issue becomes more complicated due to systemic reasons related to the flaws of this body. In such a situation, one must consider not only the wording of the provisions of the Law on the Common Courts, but also the broader context related to the direct application of the Constitution and the jurisprudence of international tribunals, which indicate that the National Council of the Judiciary is not an independent body," points out Judge Zawistowski.

In his opinion, if the body he would be contacting in the second step of the Ministry of Justice procedure does not meet the standards of independence, the decision to dismiss or dismiss falls within the minister's discretion. "He will ultimately decide and, I presume, will provide a justification for the decision," he adds.

KRS: You can't dismiss a judge without our consent

Dagmara Pawełczyk-Woicka sees it completely differently. "In the event of a negative opinion from the court board, the minister can at most submit a motion to the National Council of the Judiciary. And he should do so, because according to the Constitutional Tribunal's ruling in case K2/24, the president or vice president cannot be dismissed without the Council's opinion," points out the current chairwoman of the National Council of the Judiciary. This ruling has not been published.

He adds that although Article 27 § 5a of the Law on the Common Courts uses the phrase "may occur", he explains that in the event of a desire to dismiss the president or vice-president of the court contrary to the board's position, this is an obligation. "They may submit a motion," or, given a negative opinion, waive the appeal. That's the meaning of this provision," explains Dagmara Pawełczyk-Woicka.

"Another issue is that dismissing presidents for reasons completely unrelated to court management, on the grounds that they are "neo-judges" or signed a statement supporting a candidate for the National Council of the Judiciary, meaning they acted legally, is unacceptable. What kind of country are we living in? This is discriminatory and exclusionary. I am outraged. Judges should react to the lack of a substantive legal basis for such a dismissal," adds Judge Pawełczyk-Woicka.

In turn, Judge Piotr Mgłosiek, who just a few days ago held the position that dismissing a judge from office in the face of a negative opinion from the court board would be an act against the law, has changed his mind.

"I was convinced by the arguments regarding the declaratory, not constitutive, nature of court board opinions. More importantly, however, under the current provisions of the Law on the Common Court, the court board is not a body of judicial self-government. Its members are not elected, but appointed, as it consists exclusively of court presidents and vice-presidents. If the court board were, as it once was, a body of judicial self-government, then I would agree that its opinion should be relevant to the minister. However, this is not the case when the board does not represent the judges of a given court, but represents the interests of its members," explains Judge Mgłosiek. "Why, then, would the Minister of Justice refer to a body that is an extension of the president's authority, and the opinion of that body should oblige him to make a given decision?" adds Judge Mgłosiek.

Judge: The minister's respect for judges' decisions was a good sign

It is worth noting that Waldemar Żurek's predecessor, Adam Bodnar, when initiating the procedure for dismissing "neo-judges" from their official positions, abandoned this intention after receiving a negative opinion from the board of a given court. "The question is what the current minister will do. Will he, like his predecessor, respect the opinions of these judicial bodies or not? I think Minister Bodnar's actions, respecting the board's decisions in such situations, are a good indication." – says judge Olimpia Barańska-Małuszek from the Iustitia association. – However, it must be realized that the purpose of adding § 5a to Article 27 in 2018, which stipulates the need to request an opinion from the National Council of the Judiciary, was to make it more difficult to dismiss presidents appointed by Minister Zbigniew Ziobro – concludes Judge Barańska-Małuszek.