W sprawie powoływania członków Krajowej Rady Sądownictwa
On appointing members of the National Council of the Judiciary

Summary/Abstract: The opinion refers to two problems: Can a judge delegated to the Ministry of Justice be a memberof the National Council of the Judiciary? Can a retired judge be a member of the National Councilof the Judiciary? As regards the fi rst issue, the author points to the fact that a judge delegatedto the Ministry of Justice is still a judge, although s/he does not pass judgments, and the act on theNational Council of the Judiciary does not condition the admissibility to run for the position of its member thereon, but on having the status of a judge. Hence, a judge delegated to the Ministry ofJustice may be a candidate to the National Council of the Judiciary. As regards retired judges, theymay not be candidates to the National Council of the Judiciary, as they do not hold offi ces (are notin service); retirement results primarily in the removal of the judicial power, as well as particularcorporate rights and obligations. The jurisprudence of both the Supreme Court and the Constitutional Tribunal defines the essence of retirement, recognizing a retired person as “inactive” in thesphere of the holding an office. It is emphasized in the literature that judges nominated to the NationalCouncil of the Judiciary must be elected “from among judges”. It stems there from that they must be persons holding positions of a judge within a given category of courts and that nominatinga retired judge is inadmissible. In addition, as regards members of the Council who retire orare moved into retirement during the term, their mandates expire before the end of the term, whichmanifests the legislator’s will for the positions of members of the National Council of the Judiciarynot to be filled by retired judges.

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