Constitutional Repair in Poland: The Venice Commission’s Opinion on the Draft Law Amending the Law on the National Council of the Judiciary

Francesco Biagi

University of Bologna

Transitions to Democracy, Democratic Backsliding, and Constitutional Repair

The Venice Commission is often involved in transition processes. During the Nineties, this body played an important role in assisting Central and Eastern European countries in the democratization processes following the collapse of the Communist regime. A couple of decades later, some of these countries – particularly Hungary and Poland – experienced a transition of a diametrically opposed nature, i.e. from a democratic form of government to an illiberal or hybrid regime led by populist forces. And the Venice Commission intervened with a series of opinions also in these processes of democratic backsliding. In the European continent, however, transitions are not over. Indeed, Poland – following the October 2023 parliamentary elections, which saw the defeat of the Law and Justice party (PiS) and the victory of a coalition of parties led by Donald Tusk (who is currently serving as Prime Minister) – is now experiencing a process aimed at restoring the rule of law. It is significant that in May 2024 the European Commission officially withdrew the Article 7 TEU procedure against Poland (a procedure that had been initiated in 2017), after concluding that there is no longer a clear risk of a serious breach of the rule of law in the country.         

The kind of process Poland (and hopefully, in the future, other “illiberal democracies” such as Hungary) is dealing with, can be better described by using the expression coined by Tom Gerald Daly, i.e. constitutional repair. The latter – which differs significantly from the transitions that took place in Central and Eastern Europe after the fall of the Berlin wall – occurs after a period of democratic deterioration “which has transformed the system into a less recognizably democratic form and necessitates some form of repair, but which has not produced full democratic rupture” (Daly p. 13, emphasis added). Daly also rightly underscores that constitutional repair will hardly be just a restoration of the status quo, as it will be almost impossible to recreate the previous constitutional framework in the same terms (p. 18). Rather, constitutional repair will inevitably involve “revisiting, reframing, reimagining and repurposing the former [system]” (p. 20).

Interestingly, as I will explain in this post, the Venice Commission is now involved also in this process of constitutional repair taking place in Poland. On May 8, 2024, the Commission (together with the Directorate General of Human Rights and Rule of Law of the Council of Europe) issued an Opinion on the draft law amending the Law on the National Council of the Judiciary (NCJ), which was adopted by the Sejm (the lower Chamber of the Polish Parliament) on April 12, 2024. This draft law is part of a larger Action Plan presented by the Polish Government in February 2024 with the aim of restoring the rule of law in the country.

A Step Back: The NCJ and the 2017 Reform

The NCJ was introduced in the country in 1989 and was then confirmed by the 1997 Constitution with the aim to safeguard the independence of the judiciary. This body is an example of the “Mediterranean model” of judicial self-government, whereby the majority of the decisions concerning the career of the judicial personnel are made by a judicial council. The Constitution states that the NCJ is composed as follows: “the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; 15 judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts; 4 members chosen by the Sejm from amongst its Deputies and 2 members chosen by the Senate from amongst its Senators” (Art. 187). The Constitution also stipulates that “the manner of choosing [the NCJ] members […] shall be specified by statute” (Art. 187). Thus, the Constitution provides that the judicial members must be elected from among their peers, but does not regulate how they are elected. Until the 2017 reform of the Law on the NCJ, these members were elected for a four-year term by the relevant assemblies of judges at different levels. In 2017, under the PiS Government, this procedure was changed, as the right to elect the 15 judicial members was granted to the Sejm. As a result of this reform, the vast majority of the members of the NCJ are now elected by Parliament. Furthermore, the 2017 reform also provided for an ex lege early termination of the mandate of the judicial members of the NCJ, who were replaced by new members elected by the Sejm.

As it happened also with other institutions (particularly the Constitutional Tribunal), within a short time the NCJ ceased to be an independent body and turned into an instrument in the hands of the ruling party. The lack of independence and impartiality of the NCJ was denounced not only by some domestic institutions (notably the Supreme Court and the Supreme Administrative Court), but also by several international organizations and institutions, including the Venice Commission, the European Network of Councils for the Judiciary (which expelled the NCJ in 2021), the Court of Justice of the European Union (CGEU), and the European Court of Human Rights (ECtHR). The latter, in particular, in a series of cases (Reczkowicz, Dolińska-Ficek and Ozimek, Advance Pharma Sp. z o.o., and Wałęsa), emphasized that the involvement of the NCJ (as constituted following the 2017 reform) in the judicial appointment procedure affected the independence of the judges so appointed, thus leading to a violation of Article 6 ECHR (right to “an independent and impartial tribunal established by law”). Moreover, in the Grzęda case, the ECtHR argued that the lack of judicial review of the ex lege early termination of the mandate of the judicial members of the NCJ was contrary to Article 6 ECHR. Not surprisingly, during the period in which PiS was in power (2015-2023), all the abovementioned judgments were not enforced.

The Venice Commission’s Opinion

The draft law amending the Law on the NCJ adopted by the Sejm in April 2024 is an important measure aimed to reestablish the independence of the NCJ from the legislature and the executive. In the first place, this draft law abandons the model adopted by the 2017 reform – whereby the judicial members of the NCJ are elected by the Sejm – and reestablishes the previous system which vests the judiciary with the power to elect these members. The Venice Commission welcomed this proposed change, stressing that the election of the judicial members of the NCJ by their peers “is not only legitimate, but it is required by the decisions of the ECtHR and the CJEU” (pp. 10-11). Thus, the reintroduction of this election system is deemed necessary to comply with a clear international obligation. According to the Commission this proposed change was also further supported by historical and teleological interpretation: indeed, both the 1989 “Round Table Agreement” and the debates during the process that led to the adoption of the Constitution show that there was a general consensus on the fact that the judicial members of the NCJ had to be elected by their peers.      

One should not derive from this opinion of the Commission the idea that this body is opposed to any involvement of Parliament in the selection of the members of judicial councils. For example, in an Opinion issued in 2007 the Commission recommended to provide a mixed system of election: “A substantial element or a majority of the members of the judicial council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualifications.” If the proposed reform is approved, this would precisely be the case of Poland. In addition to four members appointed by specific institutions, 15 members of the NCJ would be elected by the judiciary, and six by Parliament. It has been rightly pointed out that this mixed system is aimed at avoiding “both corporatism – which would result from an election only among the judges of the Judiciary – and politicization – [which would result] from electing all its members by Parliament” (p. 47).

According to the draft law, the judicial members of the NCJ will be selected though direct elections managed by the National Electoral Commission, instead of assemblies of judges as in the pre-2017 system. This new model is considered by the Venice Commission in line with European standards, also in light of the fact that the draft law provides quotas for judges of different levels and jurisdiction, with the aim of ensuring a wide representation of the judiciary.

While all judges have been granted the right to propose candidates to the NCJ and to vote, the draft law states that the right to stand for the elections to the NCJ that will be held for the first time after the entry into force of the draft law will not be granted to those judges who were appointed or promoted by the NCJ in its composition pursuant the 2017 reform. This restriction does not apply if the judges promoted during this period return to their previously occupied judicial post. Polish authorities justified this exclusion by stressing the fact that since the NCJ is no longer an independent body, all the judges elected with the participation of the NCJ in its new composition cannot be considered independent and impartial (pp. 14-15). The Venice Commission criticized this approach on two main grounds. First, it argued that the concerns regarding the independence and impartiality of these judges “stem solely from procedural flaws in their appointment or promotion.” Second, it underlined that the wholesale blanket exclusion of such a large cohort of judges (between 2500 and 3500) “lacks individual assessment, and thus raises questions of proportionality” (p. 12).      

The recommendation of the Venice Commission to reconsider the eligibility criteria was followed by the Senate in May 2024, which amended the draft law and granted to the “post-2017 judges” the right to stand for election in the first elections to the new NCJ. In July the Sejm adopted the law, but rejected the Senate’s amendment, with the result that the judges appointed after the 2017 reform have been deprived of the passive right to stand for election. It remains to be seen what the Constitutional Tribunal will rule on this point, since (as explained in greater detail below) the constitutionality of this law is now under the scrutiny of this body.

The most controversial part of the draft law is undoubtedly that providing for an early dismissal of the current judicial members of the NCJ once the new judicial members have been elected under the new system. Since an ex lege early termination of the mandate of the sitting judicial members already occurred in Poland with the 2017 reform, and this measure was criticized by the Venice Commission and the ECtHR, it is necessary to understand whether this new early dismissal repeats the previous erroneous approach or if it needs to be assessed in a different light. The issue mainly revolves around how the principle of security of tenure has to be enforced: Does this principle allow for an exception when the early dismissal is aimed to restore the rule of law and the independence of the judiciary after a period of democratic deterioration? This kind of question – which refers in particular to institutions that have been “captured” by the previous illiberal-populist regime – is likely to be very common in constitutional repair processes.

Polish authorities justified their decision to prematurely terminate the mandate of the current judicial members on two grounds. First, they argued that these people were elected in a way that conflicted with the Constitution, and therefore could not invoke the security of tenure. Second, they referred to the international obligations to enforce the judgments of the CJEU and the ECtHR (explanatory note, pp. 13-14). The Venice Commission found both arguments persuasive. With specific reference to the principle of security of tenure, the Commission recalled its previous opinions in which it had stated that this principle, stemming from legal certainty, is not absolute and allows for exceptions (p. 14). According to the Commission, the early termination of the mandate of the current judicial members can be justified as it is aimed to ensure that the judicial members are elected by their peers, thus following European standards. Furthermore, maintaining the present NCJ in office would worsen the rule of law crisis, as the involvement of the NCJ (as constituted after the 2017 reform) in the judicial appointment procedure would continue to affect the independence of the judges so appointed (p. 16). Thus, the Commission came to the conclusion that “the requirement of security of tenure can only apply when the relevant appointment, nomination or election was made in compliance with the Constitution and with European standards. To hold otherwise would mean that it would be possible for a government to disregard or circumvent the constitutional provisions on appointment and subsequently invoke the constitutional principle of security of tenure to make such appointment irreversible, a situation which would defeat the rule of law.” (p. 15)

Another controversial point is related to the fact that the draft law does not provide for a judicial remedy available for the sitting members of the NCJ to challenge their early termination. According to the Venice Commission, since the proposed reform is aimed at restoring the independence of the NCJ, and in light of the urgency to do so, the lack of such a remedy can be justified. Still, the Commission argued that in order to prevent any risk of finding a violation of Article 6 ECHR by the ECtHR “it would be appropriate to provide a remedy, which, in order not to jeopardise the impact of this reform, should not suspend the termination of mandate” (p. 17).

Concluding Remarks

The Opinion issued by the Venice Commission in this case is particularly interesting, among other things, because it is one of the first cases in which an international institution expresses its assessment of a measure adopted during a process of constitutional repair. In this sense, this opinion offers valuable guidance for dealing with similar cases. What clearly emerges is that one of the most complicated challenges for a country experiencing a constitutional repair process is that of reestablishing the rule of law without violating the rule of law. And in such a context, as acknowledged also by the Venice Commission, “some balancing between different – apparently conflicting – elements of the rule of law is required” (p. 10).

On the one hand, the Commission justified the adoption of certain strong measures (such as the ex lege early dismissal of the current judicial members of the NCJ) in light of the current circumstances in Poland, arguing that these measures are simultaneously aimed to prevent a further deterioration of the rule of law, and to facilitate a more rapid restoration of the rule of law, as also requested by the ECtHR. It is clear, then, that the draft law does not represent, in the eyes of the Commission, a form of “political revenge” or “legal revanchism,” which is a type of criticism that – potentially – might be very frequent in constitutional repair processes. Overall, with this Opinion the Commission gave additional legitimacy to the reform proposed by the Government. On the other hand however, the Commission also identified certain red lines that should not be crossed, not even in an exceptional context such as the one that Poland is currently experiencing (for example, when it expressed its negative assessment concerning the decision to exclude all the judges appointed after the 2017 reform of the passive right to stand for election to the NCJ). Thus, the Commission confirmed its role – in the words of Angelika Nußberger – of a “pragmatic problem-solver” (p. 606).

The fate of this reform, however, is far from certain. President Duda, who is a loyal member of PiS, in a widely expected move aimed to freeze the entry into force of the law, refused to sign it and sent it to the Constitutional Tribunal, which now has to review it. I would be happy to be proven wrong, but since the Tribunal is staffed entirely with PiS nominees, the constitutionality of this piece of legislation will hardly be upheld. It is likely that this modus operandi (i.e. President Duda referring laws to the Constitutional Tribunal in order to stop their adoption) will be repeated, at least until Duda’s term of office expires in summer 2025. Unfortunately, the presidency of the republic and the Constitutional Tribunal – which in theory should represent two key constitutional guarantees bodies – currently represent, instead, a major obstacle to the restoration of the rule of law. A constitutional reform is not an option, since the coalition led by Donald Tusk does not enjoy the parliamentary majority required to change the Constitution. Clearly, the Polish puzzle will not be solved easily.

Francesco Biagi is an Associate Professor of Comparative Public Law, University of Bologna Department of Legal Studies and the Deputy-Secretary General of the IACL.

Suggested Citation: Francesco Biagi, ‘Constitutional Repair in Poland: The Venice Commission’s Opinion on the Draft Law Amending the Law on the National Council of the Judiciary’ IACL-AIDC Blog (31 October 2024) Constitutional Repair in Poland: The Venice Commission’s Opinion on the Draft Law Amending the Law on the National Council of the Judiciary — IACL-IADC Blog