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  1. 1 Karolczak J. M.

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W sprawie powoływania członków Krajowej Rady Sądownictwa

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Karolczak J. M.
Przegląd Sejmowy
|
2018
|
issue 2(145)
146–153
EN
The opinion refers to two problems: Can a judge delegated to the Ministry of Justice be a member of the National Council of the Judiciary? Can a retired judge be a member of the National Council of the Judiciary? As regards the fi rst issue, the author points to the fact that a judge delegated to the Ministry of Justice is still a judge, although s/he does not pass judgments, and the act on the National 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 of Justice may be a candidate to the National Council of the Judiciary. As regards retired judges, they may not be candidates to the National Council of the Judiciary, as they do not hold offices (are not in service); retirement results primarily in the removal of the judicial power, as well as particular corporate rights and obligations. The jurisprudence of both the Supreme Court and the Constitutional Tribunal defi nes the essence of retirement, recognizing a retired person as “inactive” in the sphere of the holding an offi ce. It is emphasized in the literature that judges nominated to the National Council of the Judiciary must be elected “from among judges”. It stems therefrom that they must be persons holding positions of a judge within a given category of courts and that nominating a retired judge is inadmissible. In addition, as regards members of the Council who retire or are moved into retirement during the term, their mandates expire before the end of the term, which manifests the legislator’s will for the positions of members of the National Council of the Judiciary not to be fi lled by retired judges
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