CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 mars 2022

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text-align:justify; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .fixListIndent { list-style-position: inside }     GRAND CHAMBER CASE OF GRZĘDA v. POLAND (Application no. 43572/18)   JUDGMENT Art 6 § 1 (civil) • Access to court • Lack of judicial review of premature termination ex   lege , after legislative reform, of serving Supreme Administrative Court judge’s term of office as member of National Council of the Judiciary (“NCJ”) • Art   6 applicable • Genuine and serious dispute over right under domestic law to serve full term as NCJ judicial member • First condition of Eskelinen test to be developed so as to cover implicit exclusion in domestic law of access to court • Second condition of Eskelinen test not met since applicant’s exclusion from access to court was not justified on objective grounds in State’s interest, given reform’s adverse impact on NCJ’s independence • Judicial independence to be understood in inclusive manner and applied not only to judges’ adjudicating role but also to other official judicial functions, such as membership of a judicial council • Necessity to protect independence of a judicial council from executive and legislative powers so as to safeguard integrity of judicial appointment process • Similar procedural safeguards as in cases of judges’ dismissal or removal to be available in cases of removal of judicial council members • Successive Polish reforms resulting in weakening of judicial independence and adherence to rule-of-law standards • Very essence of right of access to court impaired   STRASBOURG 15 March 2022   This judgment is final but it may be subject to editorial revision. Table of Contents INTRODUCTION PROCEDURE THE FACTS I.   BACKGROUND AND CONTEXT OF THE CASE II.   THE CIRCUMSTANCES OF THE CASE RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   Domestic law B.   Domestic practice II.   INTERNATIONAL LAW AND PRACTICE A.   Vienna Convention on the Law of Treaties B.   The Permanent Court of International Justice C.   The United Nations D.   The Council of Europe E.   The Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) III.   EUROPEAN UNION LAW A.   The Treaty on European Union B.   The Charter of Fundamental Rights C.   Case-law of the CJEU D.   The European Commission E.   The European Parliament IV.   COMPARATIVE LAW MATERIAL THE LAW I.   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.   Admissibility B.   Merits II.   ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION A.   Damage B.   Costs and expenses C.   Default interest OPERATIVE PROVISIONS CONCURRING OPINION OF JUDGE LEMMENS JOINT PARTLY DISSENTING OPINION OF JUDGES SERGHIDES AND FELICI DISSENTING OPINION OF JUDGE WOJTYCZEK       In the case of Grzęda v. Poland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President ,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Yonko Grozev,   Paul Lemmens,   Krzysztof Wojtyczek,   Valeriu Griţco,   Egidijus Kūris,   Carlo Ranzoni   Alena Poláčková,   Georgios A. Serghides,   Lətif Hüseynov,   Gilberto Felici,   Darian Pavli,   Erik Wennerström,   Raffaele Sabato,   Saadet Yüksel, judges , and Abel Campos, Deputy Registrar , Having deliberated in private on 19 May and 15 December 2021, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns the lack of access to a court for the applicant in connection with the premature and allegedly arbitrary termination of his term of office as a judicial member of the National Council of the Judiciary. He relied on Article 6   §   1 and Article 13 of the Convention. PROCEDURE 2.     The case originated in an application (no. 43572/18) against the Republic of Poland lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jan Grzęda (“the applicant”), on 4   September 2018. 3.     The applicant was represented by Mr M. Pietrzak and Ms   M.   Mączka ‑ Pacholak, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Sobczak, of the Ministry of Foreign Affairs. 4.     The application was allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). On 9   July 2019 the Government were given notice of the application. 5.     The President of the Section granted leave to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 3) to the European Network of Councils for the Judiciary (“the ENCJ”), Amnesty International jointly with the International Commission of Jurists, the Helsinki Foundation for Human Rights (Poland), the Commissioner for Human Rights of the Republic of Poland and the Polish Judges’ Association Iustitia, each of which submitted comments. 6.     On 10 November 2020 a Chamber of the First Section informed the parties of its intention to relinquish jurisdiction in favour of the Grand Chamber. On 9 December 2020 the Government filed an objection to the Chamber’s proposal. On the same date the applicant consented to relinquishment. 7.     On 9 February 2021 a Chamber of that Section, composed of Ksenija Turković, President, Krzysztof Wojtyczek, Linos-Alexandre Sicilianos, Alena Poláčková, Gilberto Felici, Erik Wennerström, Raffaele   Sabato, judges, and Renata Degener, Deputy Section Registrar, examined the reasons given by the Government in support of their objection. The Chamber concluded, by a majority, that the objection could not be considered “duly reasoned” and decided that it was unable to accept the Government’s objection as valid under the terms of Article 30 of the Convention read in conjunction with Rule 72 §§ 1 and 4 [1] . It accordingly relinquished jurisdiction in favour of the Grand Chamber. 8.     The composition of the Grand Chamber was decided in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. At the second deliberations, Carlo Ranzoni, substitute judge, replaced Ksenija Turković, who was unable to take part in the further consideration of the case (Rule 24 § 3). 9.     The applicant and the Government each filed observations on the admissibility and merits of the application (Rules 71 and 59 § 1). 10.     In addition, third-party comments were received from the “Judges for Judges” Foundation (the Netherlands) jointly with Professor L. Pech; the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Mr D. García-Sayán; and the Governments of Denmark and the Kingdom of the Netherlands, all of whom had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article   36 § 2 of the Convention and Rules 71 § 1 and 44 § 3). Additional written comments were submitted by the Commissioner for Human Rights of the Republic of Poland and the Polish Judges’ Association Iustitia. The comments submitted to the Chamber by the other third-party interveners were included in the Grand Chamber case file. 11.     The Grand Chamber took note of the Chamber’s decision to relinquish jurisdiction in favour of the Grand Chamber and of the reasons for its rejection of the Government’s objection to relinquishment. The Grand Chamber further noted that the Government had not challenged the Chamber’s decision in the proceedings before it. Accordingly, the Grand Chamber took no position on the Chamber’s decision to relinquish jurisdiction or the reasons underlying that decision and proceeded with the examination of the case. 12.     A hearing, with the use of video-conferencing technology, took place in the Human Rights Building, Strasbourg, on 19 May 2021 (Rules 71 and   59 §   3). The Commissioner for Human Rights of the Republic of Poland, who had been granted leave by the President to participate in the oral proceedings before the Grand Chamber, took part in the hearing.   There appeared before the Court: (a)     for the Government Mr   J. Sobczak,   Agent , Ms   A. Rogalska-Piechota,   Co-Agent ; (b)     for the applicant Mr   M. Pietrzak,   Ms   M. Mączka-Pacholak ,   Counsel , Mr   A . Płoszka,   Adviser , Mr   J. G rzęda,   Applicant ; (c)     for the third-party intervener the Commissioner for Human Rights of the Republic of Poland Mr   M. Taborowski, Deputy Commissioner,   Mr   M. Wróblewski, Director, Office of the Commissioner,   Mr   P. Filipek, Chief Specialist, Office of the Commissioner.   The Court heard addresses by Mr Sobczak, Mr Pietrzak, Ms   Mączka ‑ Pacholak and Mr Filipek, as well as their replies to questions put by judges. THE FACTS 13.     The Court considers it essential to the understanding of the nature and context of the applicant’s complaint, as well as of the circumstances in which it arose, which are outlined in greater detail in paragraphs 29 et seq. below, to provide the broader domestic background to the present proceedings. I.         BACKGROUND AND CONTEXT OF THE CASE 14.     A candidate of the Law and Justice ( Prawo i Sprawiedliwość ) Party won the presidential elections in May 2015 and took office in August 2015. In the general election of 25 October 2015, a coalition led by the same party obtained a majority in the Sejm (the lower house of Parliament) and formed a government. It fell short of the majority required to change the Constitution. 15.     One of the first actions of the new majority concerned the Constitutional Court. On 8 October 2015 the previous, seventh-term Sejm had elected five new judges of the Constitutional Court. Three of these were to replace judges whose terms of office were to come to an end on 6 November 2015, that is, within the term of the previous Sejm , and two were to replace those whose terms of office were due to expire on 2 and 8   December 2015. The President of the Republic declined to swear them in. The new, eighth-term Sejm held its first session on 12 November 2015, which marked the beginning of its term. On 25 November 2015 the new Sejm , in an unprecedented move, adopted resolutions revoking the election of the five judges by the previous Sejm . Then, on 2 December 2015, it elected five judges who were immediately sworn in by the President of the Republic. In its judgment of 3 December 2015 (no. K 34/15), the Constitutional Court held that a judge of that body should be elected by the Sejm whose term covered the date on which his or her seat became vacant. It confirmed that finding in four subsequent rulings [2] . In consequence, the seventh-term Sejm had had the power to elect three judges, while the eighth-term Sejm could validly elect two. The election of three judges (M.M., L.M. and H.C.) in December 2015 to seats that had been already filled in October sparked an intense legal controversy and marked the beginning of what is widely referred to by analysts as the rule-of-law crisis in the country. 16.     A detailed account of the relevant facts relating to the Constitutional Court can be found in the judgment in Xero Flor w Polsce sp.   z   o.o. v. Poland (no. 4907/18, §§ 4-63, 7 May 2021). In that judgment, the Court held that there had been a violation of Article 6 § 1 as regards the right to a “tribunal established by law” on account of the participation in the proceedings before the Constitutional Court of the above-mentioned Judge M.M., whose election it found to have been vitiated by grave irregularities. 17.     In January 2017 the Government announced plans to reform the ordinary courts, the National Council of the Judiciary ( Krajowa Rada Sądownictwa ; “the NCJ” or “the Council”) and the Supreme Court. 18.     With regard to the ordinary courts, the Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts increased the powers of the Minister of Justice, who is at the same time the Prosecutor General (see paragraph 38 below), in relation to the internal organisation of the courts and to the appointment and dismissal of the presidents and vice-presidents of the courts. It also extended his powers in the areas of promotion and discipline. The Act of 12 July 2017 provided that within the six-month period following its adoption, the Minister could dismiss and appoint court presidents and vice-presidents at his discretion. Two court vice-presidents removed from their posts under this legislation lodged their applications with the Court, complaining that their premature removal was not amenable to judicial review. In its judgment in Broda and Bojara v. Poland (nos.   26691/18 and   27367/18, 29 June 2021) the Court found that the applicants had been deprived of the right of access to a court, in violation of Article 6 § 1, in relation to the Minister’s decisions removing them from their posts before the expiry of their respective terms of office. 19.     In July 2017 Parliament also adopted the Act Amending the Act on the NCJ and the Act on the Supreme Court. However, the President of the Republic vetoed them. Subsequently, the President submitted to the Sejm his own legislative proposals for the institutions concerned. 20.     In December 2017 Parliament adopted the Act Amending the Act on the NCJ (“the 2017 Amending Act”). The 2017 Amending Act transferred the power to elect the fifteen judicial members of the NCJ from respective assemblies of judges to the Sejm . It also terminated prematurely the terms of office of those judicial members who, like the applicant, had been elected under the previous regulations (see paragraphs 52 and 54 below). 21.     In December 2017 Parliament also adopted the new Act on the Supreme Court. The Act, inter alia , modified the organisation of the Supreme Court by creating two new chambers: (1) the Disciplinary Chamber ( Izba Dyscyplinarna ) and (2) the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ). The judges of these new chambers were appointed by the President of the Republic on the recommendation of the new NCJ. In the Reczkowicz v.   Poland (no. 43447/19, 22 July 2021) judgment, the Court held that the Disciplinary Chamber of the Supreme Court was not a “tribunal established by law” and found a violation of Article 6 § 1 of the Convention in that regard. This judgment became final on 22 November 2021 when the panel of the Grand Chamber took note of the Government’s withdrawal of its request to refer that case to the Grand Chamber. In its judgment in Dolińska ‑ Ficek and Ozimek v. Poland (nos.   49868/19 and 57511/19, 8   November 2021, not yet final on the date of adoption of the present judgment) the Court found a similar breach of Article   6 § 1 of the Convention, having concluded that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court was not a “tribunal established by law” [3] . 22.     The new Act on the Supreme Court also lowered the retirement age for Supreme Court judges from 70 to 65 years, with the consequence that about one-third of the judges of that court would have to leave their posts prematurely, including the First President of the Supreme Court. The President of the Republic was granted discretion to decide whether to allow the persons concerned to continue in office beyond that age. The European Commission brought an infringement action against Poland in connection with the adoption of the law. The Court of Justice of the European Union (“the CJEU”) issued an interim order on 17 December 2018 suspending the application of the relevant provisions of the law (C ‑ 619/18   R, EU:C:2018:1021). It then held in its judgment of 24 June 2019 ( Commission v. Poland (Independence of the Supreme Court) , C ‑ 619/18, EU:C:2019:531) that lowering the retirement age in respect of sitting judges failed to fulfil Poland’s obligations under EU law. Following the interim order of 17   December 2018, Parliament amended the Act on the Supreme Court. It limited the application of the new retirement age of 65 solely to judges of the Supreme Court who had entered into service after 1 January 2019 and allowed the reinstatement to that court of judges who had entered into service before that date and who had been obliged to retire under the contested legislation. 23.     Furthermore, the rules on the disciplinary liability of judges were significantly changed by the Act of 8 December 2017 on the Supreme Court amending the Act on the Organisation of Ordinary Courts. The amended legislation considerably increased the role of the Minister of Justice/Prosecutor General in the area of judicial discipline. According to the Venice Commission, there was “an intensification of the disciplinary procedures against ordinary judges” and “inquiries ... were opened ... in respect of more than forty judges who were vocal in criticising the reform” [4] . In October 2019 the European Commission brought infringement proceedings on the grounds that Poland had failed to fulfil its obligations under EU law by adopting the new disciplinary regime for judges. On 8 April 2020 the CJEU in its interim decision ordered Poland to suspend the application of the provisions on the powers of the Disciplinary Chamber with regard to disciplinary cases concerning judges pending the resolution of the case (C ‑ 791/19   R, EU:C:2020:277). Despite the CJEU’s interim decision, the Disciplinary Chamber has continued to operate and has decided, for example, to lift immunity from prosecution in cases against judges. In its judgment of 15   July 2021 ( Commission v. Poland (Disciplinary regime for judges) , Case C-791/19, EU:C:2021:596), the CJEU held that the disciplinary regime for judges in Poland was not compatible with EU law (see paragraphs   160-61 below). 24.     On 20 December 2017 the European Commission initiated for the first time the procedure under Article 7 §   1 of the Treaty on European Union (TEU). The Commission submitted a reasoned proposal to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach of the rule of law by the Republic of Poland. It referred, inter alia , to the threats to the independence of the ordinary judiciary. The Commission observed that over a period of two years more than thirteen consecutive laws had been enacted affecting the entire structure of the justice system in Poland. The common pattern in all these legislative changes was that the executive or legislative branches were systematically enabled to interfere significantly with the composition, powers, administration and functioning of those authorities and bodies (see paragraph 163 below). 25.     In December 2019 Parliament passed the Act Amending the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts (“the 2019 Amending Act”). The 2019 Amending Act, which entered into force on 14 February 2020, introduced new disciplinary offences and sanctions for judges, including for questioning the lawfulness of judicial appointments made with the participation of the new NCJ. On 31   March 2021 the European Commission commenced infringement proceedings in respect of that law. It considered that the law undermined the independence of Polish judges and was incompatible with the primacy of EU law. Moreover, the law prevented Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from making references for preliminary rulings on such questions to the CJEU. The Commission also decided to ask the CJEU to order interim measures until it had given a judgment in the case. On 14 July 2021 the Vice-President of the CJEU issued an interim order in the case (C ‑ 204/21   R, EU:C:2021:593). Poland was required to suspend, inter alia , the application of several provisions of the Act on the Supreme Court and the Act on the Organisation of Ordinary Courts, as amended by the 2019 Amending Act, relating to the competences of the Disciplinary Chamber of the Supreme Court. On 27 October 2021 the Vice-President of the CJEU ordered Poland to pay to the European Commission a periodic penalty payment of EUR   1,000,000 per day until such time as that Member State complies with the obligations arising from the order of 14   July 2021, or, if it fails to do so, until the date of delivery of the final judgment in the case (C ‑ 204/21   R, EU:C:2021:878). 26.     On 29 March 2021 the Prime Minister lodged an application with the Constitutional Court asking it to review, inter alia , the constitutionality of Article   19 § 1, second subparagraph, in conjunction with Article   4 §   3 of the TEU interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law was authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution. The Prime Minister further challenged the constitutionality of Article   19 §   1, second subparagraph, in conjunction with Article   2 of the TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic and to review a resolution of the NCJ concerning a proposal to the President of the Republic for appointment of a judge. In its judgment of 7   October 2021 (no. K 3/21), the Constitutional Court held that the contested provisions of the TEU were incompatible with the Constitution (see paragraphs 96-97 below). 27.     On 27 July 2021 the Prosecutor General (on the connection between this office and that of Minister of Justice see paragraph 38 below) lodged an application with the Constitutional Court challenging the constitutionality of Article 6 § 1 of the Convention in connection with the Court’s judgment in Xero Flor w Polsce sp.   z   o.o. (cited above). He alleged that Article   6 § 1 of the Convention was unconstitutional, in so far as (1) the term “tribunal” used in that provision included the Constitutional Court, (2) it allowed the proceedings before that court to be covered by the requirements ensuing from Article 6 of the Convention, and (3) it encompassed the review by the Court of the legality of the election of Constitutional Court judges in order to determine whether that court was an independent and impartial tribunal established by law. In its judgment of 24 November 2021 (no.   K   6/21), the Constitutional Court partly upheld this challenge (see paragraphs 98-99 below). 28.     On 9 November 2021 the Prosecutor General lodged an application with the Constitutional Court alleging that Article 6 § 1 of the Convention was incompatible with several constitutional provisions. This application is related to the Court’s judgments in Broda and Bojara and Reczkowicz (both cited above). He claimed that Article 6 §   1 of the Convention was unconstitutional, in so far as (1) it authorised the Court to create under domestic law the subjective right of a judge to hold an administrative post in the judiciary, (2) the requirement of a “tribunal established by law” in that provision did not take account of the universally binding provisions of the Polish Constitution and statutes, as well as the final and universally binding judgments of the Polish Constitutional Court, and (3) it allowed domestic or international courts to determine the compatibility of laws concerning the organisation of the judiciary, the jurisdiction of the courts, and the NCJ with the Polish Constitution and the Convention, in order to ascertain whether the requirement of a “tribunal established by law” was fulfilled. The case is pending before the Constitutional Court (no. K 7/21). II.       THE CIRCUMSTANCES OF THE CASE 29.     The applicant was born in 1956 and lives in Piła. 30.     In 1986 the applicant was appointed as judge of the Trzcianka District Court, and subsequently as judge of the Poznań Regional Court. In April 1999 he was appointed as judge of the Supreme Administrative Court. At the relevant time he was a member of the Gorzów Wielkopolski Regional Administrative Court. 31.     On 11 January 2016 the applicant was elected by the General Assembly of Judges of the Supreme Administrative Court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts as a member of the National Council of the Judiciary for a four-year term of office, that is until 11   January 2020 (see the relevant constitutional and legislative provisions at paragraphs   66 and 68 below). 32.     The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The candidates proposed by the NCJ are submitted to the President of the Republic for appointment. 33.     Article 187 § 1 of the Constitution provides that the NCJ is composed as follows: (1) 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; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; and (3) four members elected by the Sejm from among its deputies and two members elected by the Senate from among its senators (see paragraph 66 below). 34.     In January 2017 the government announced plans for a large-scale judicial reform regarding the NCJ, the Supreme Court and the ordinary courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia , increase the efficiency of the administration of justice and make the election of NCJ members more democratic. 35.     On 14 March 2017 the government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the 2011 Act on the National Council of the Judiciary. The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills on the Supreme Court and the Organisation of Ordinary Courts were introduced by the deputies of the majority. 36.     The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Organization for Security and Co-operation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) in their respective opinions of 30 and 31 January, 5   and 12   April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ. 37.     In the framework of the legislative process, the Government appointed a number of constitutional law experts with a view to assessing the constitutionality of the proposed measures concerning the NCJ. Those experts stated that the existing practice of electing judicial members of the NCJ from among judges for an individual term of office – instead of a joint term – was not based on the Constitution. The Government did not produce the opinions of the above-mentioned experts. 38.     On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28   January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o   Krajowej Radzie Sądownictwa ; “the 2011 Act on the NCJ”). According to the Polish Constitution, the Prosecutor General is entitled to apply to the Constitutional Court (Article 191 § 1 (1) of the Constitution). The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that treating their terms of office as individual in nature was contrary to the Constitution. 39.     The Constitutional Court gave judgment on 20 June 2017 (no.   K   5/17) in a bench composed of judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P. 40.     In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured the balance of and cooperation between the different powers of government. 41.     The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [5] were incompatible with Article   187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same went for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court. 42.     Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. The Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had one, joint term of office and this applied equally to judges, deputies and senators. Accepting the individual character of the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, as another category of elected members of the Council. The Constitutional Court found that the proper interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character. 43.     With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant: “The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.” 44.     The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18   July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure. 45.     In July 2017 the adoption by Parliament of the three bills referred to above (see paragraphs 18-19 above) sparked large public protests. On 31   July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force. 46.     Subsequently, on 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ (see paragraph 19 above). 47.     In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The bill referred to the finding made in the Constitutional Court’s judgment of 20   June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If election by qualified majority proved impossible, a supplementary election by means of a roll call vote was to be carried out. 48.     One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving. 49.     The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017. 50.     The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o   Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”)   was enacted by the Sejm and the Senate on 8 and 15   December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17 January 2018. 51.     According to the Government, the 2017 Amending Act took into account the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) and introduced a joint term of office for the judicial members of the NCJ (see paragr