Warsaw, 13 November 2017 Opinion-Nr.: JUD-POL/315/2017 [AlC] http://www.legislationline.org/ OPINION ON CERTAIN PROVISIONS OF THE DRAFT ACT ON THE SUPREME COURT OF POLAND (AS OF 26 SEPTEMBER 2017) based on an unofficial English translation of certain provisions of the Draft Act commissioned by the OSCE Office for Democratic Institutions and Human Rights This Opinion has benefited from contributions made by Ms. Michèle Rivet, International Human Rights Law Expert and former Vice-President of the International Commission of Jurists; Professor Karoly Bard, Chair of the Human Rights Program, Legal Studies Department, Central European University, Budapest; Mr. Murray Hunt, Director of the Bingham Centre for the Rule of Law of the British Institute of International and Comparative Law; Ms. Marta Achler, International Human Rights Law Expert and PhD Researcher at the Department of Law of the European University Institute, Florence; and Ms. Alice Thomas, International Human Rights Law Expert. OSCE Office for Democratic Institutions and Human Rights Ulica Miodowa 10 PL-00-251 Warsaw ph. +48 22 520 06 00 fax. +48 22 520 0605 This Opinion is also available in Polish. However, the English version remains the only official version of the document. OSCE/ODIHR Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017) TABLE OF CONTENTS I. INTRODUCTION ..................................................................................... 3 II. SCOPE OF REVIEW ................................................................................ 3 III. EXECUTIVE SUMMARY ....................................................................... 4 IV. ANALYSIS AND RECOMMENDATIONS ........................................... 6 1. International Standards and OSCE Commitments on the Independence of the Judiciary6 2. Changes to the Supreme Court’s Jurisdiction and Reorganization of its Chambers ........ 7 2.1. The New Extraordinary Control and Public Affairs Chamber and Extraordinary Appeals ...... 7 2.2. The Adjudication of Election-related Matters by the New Extraordinary Control and Public Affairs Chamber ....................................................................................................................... 17 2.3. The New Disciplinary Chamber ............................................................................................... 19 2.4. Supreme Court Lay Judges Sitting on the Disciplinary and the Extraordinary Control and Public Affairs Chambers .......................................................................................................... 20 2.5. The Advisory Role of the Supreme Court ................................................................................. 23 3. The Rules of Procedure of the Supreme Court ........................................................................... 24 4. Eligibility, Appointment, Status and Career of Supreme Court Judges ................................... 25 4.1. New Eligibility Requirements ................................................................................................... 25 4.2. Appointment of the First President of the Supreme Court and Presidents of Chambers ......... 28 4.3. New Rules Concerning the Retirement of Supreme Court Judges ............................................ 31 4.4. Rules and Limitations Regarding Other Occupations or Employment of Supreme Court Judges in Office and Retired Judges .................................................................................................... 32 5. Disciplinary Proceedings against Supreme Court Judges and other Legal Professionals ...... 33 5.1. The President of the Republic’s Involvement in Disciplinary Proceedings against Supreme Court Judges ............................................................................................................................ 33 5.2. The Minister of Justice’s Involvement in Disciplinary Proceedings against Other Legal Professionals ............................................................................................................................ 34 6. The Compulsory Retirement of All Judges of the Military Chamber and the Application of New Retirement Provisions to Existing Supreme Court Judges ............................................... 36 6.1. The Compulsory Retirement of All Judges of the Military Court ............................................. 36 6.2. The Compulsory Retirement of Existing Supreme Court Judges Having Reached the Retirement Age and the Procedure for their Extension ........................................................... 37 7. New Draft Amendments to the 2011 Act on the National Council of the Judiciary ................ 39 8. Additional Concerns Related to the Legislative Process ............................................................ 40 Annex 1: OSCE/ODIHR Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (30 August 2017), also available at <http://www.legislationline.org/search/runSearch/1/type/2/country/10/topic/9> Annex 2: Extracts of the Draft Act on the Supreme Court of Poland (as of 26 September 2017) 2 OSCE/ODIHR Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017) I. INTRODUCTION 1. On 20 September 2017, the OSCE Office for Democratic Institutions and Human Rights (hereinafter “OSCE/ODIHR”) received a request from the First President of the Supreme Court of Poland to review the Draft Act on the Supreme Court being prepared by the President of the Republic of Poland (hereinafter “the Draft Act”). This draft Act was submitted by the President to the Sejm (lower house of the Parliament of Poland) on 26 September 2017.1 2. On 18 October 2017, the OSCE/ODIHR responded to this request, confirming the Office’s readiness to prepare a legal opinion on the compliance of the Draft Act with international human rights and rule of law standards and OSCE human dimension commitments. 3. Given the short timeline to prepare this legal review, the present Opinion will focus on the most significant changes that the Draft Act intends to introduce to the current Act on the Supreme Court of 23 November 2002 (hereinafter “the 2002 Supreme Court Act”),2 where these changes raise concerns in terms of their compliance with international standards. The OSCE/ODIHR stands ready to review other provisions of the Draft Act upon request, should this be deemed useful to inform on-going discussions on the reform of the judiciary in Poland. 4. The OSCE/ODIHR has already reviewed certain provisions of a previous Draft Act on the Supreme Court of Poland submitted to the Sejm on 12 July 2017. This previous Draft Act was adopted by the Sejm and the Senate on 20 July and 22 July 2017 respectively, but was vetoed by the President of the Republic of Poland on 24 July 2017.3 The OSCE/ODIHR published its Opinion on certain provisions of this previous Draft Act on 30 August 2017 (hereinafter “August 2017 Opinion”, also available in Annex 1).4 5. The present Opinion will make reference to the findings and recommendations contained in the August 2017 Opinion whenever the provisions under review are identical or comparable and raise similar concerns in terms of compliance with international human rights and rule of law standards, and OSCE human dimension commitments. 6. This Opinion was prepared in response to the above-mentioned request. II. SCOPE OF REVIEW 7. The scope of this Opinion covers only certain provisions of the Draft as mentioned in par 3 supra, except for cases where the OSCE/ODIHR deemed it necessary to refer and analyse other provisions in the interests of comprehensiveness, including key provisions 1 See <http://www.sejm.gov.pl/Sejm8.nsf/agent.xsp?symbol=PROJNOWEUST&Nrkadencji=8&Kol=D&Typ=UST>. 2 For the Polish version of the Act on the Supreme Court of 23 November 2002, as last amended on 22 July 2016, see <http://www.legislationline.org/documents/id/21175>. For an English version of the 2002 Supreme Court Act as of 8 February 2013, see <http://www.legislationline.org/documents/id/21174>. 3 See <http://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=1727>. 4 OSCE/ODIHR, Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (30 August 2017), available at <http://www.legislationline.org/documents/id/21259> (English version) and <http://www.legislationline.org/documents/id/21260> (Polish version). 3 OSCE/ODIHR Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017) of the Constitution of the Republic of Poland5 (hereinafter “the Constitution”). Thus limited, the Opinion does not constitute a full and comprehensive review of the Draft Act or of the entire legal and institutional framework regulating the judiciary in Poland. 8. The Opinion raises key issues and provides indications of areas of concern. The ensuing recommendations are based on international standards, norms and practices as well as relevant OSCE human dimension commitments. The Opinion also highlights, as appropriate, good practices from other OSCE participating States in this field. When referring to national legislation, the OSCE/ODIHR does not advocate for any specific country model; it rather focuses on providing clear information about applicable international standards while illustrating how they are implemented in practice in certain national laws. Any country example should always be approached with caution since it cannot necessarily be replicated in another country and