Last week the amendment of the Act on the National Judiciary Council and the amendment of the Law on the Court System became the focal point for disputes regarding the judiciary system in Poland. A bill on the Supreme Court penned by the Law and Justice (PiS - Prawo i Sprawiedliwość) government was also submitted to the parliament (Sejm). The first two documents have been ratified and are presently waiting for the President’s signature. The bill on the Supreme Court that evinced protests attended by many thousands of people in several of Poland’s cities was sent to a parliamentary commission for further legislative work.
Law on the Court System The amendment of the Law on the Court System departs from the model of having the minister of justice appoint the presidents of the appellate and district courts after obtaining the opinion of the general assemblies of the courts. It also posits - "for the purpose of strengthening the external oversight exercised by the minister" - a departure from the principle of having the president of the appellate court appoint the president of the regional court subject to the procedure of obtaining an opinion regarding such a candidate - in favor of having the minister appoint that person. In turn, a temporal provision envisages that the presidents and vice-presidents of the courts "may be dismissed by the minister of justice within a period of no more than 6 months from the effective date of this act without observing the requirements" prescribed by its regulations. For half a year there will also be a possibility for the presidents [of the courts] to conduct a "review of the functional positions" in the courts, i.e. the heads of divisions, among others. Moreover, cases are supposed to be allocated to judges randomly, within specific classes, while the allocation of cases is supposed to be equal. A regional court judge or a public prosecutor may become an appellate court judge - under the condition of having ten years of service. The minister of justice will be able to extend the judicial retirement age: 65 years for men and 60 for women.
Amendment of the Act on the National Judiciary Council KRS [National Judiciary Council], the constitutional authority watching over the independence of courts and the independence of judges, will consist of 25 members. Representatives of judicial assemblies will elect 15 judges to this Council. The First President of the Supreme Court, the President of the National Administrative Court, the minister of justice, 4 members of parliament and 2 senators and one representative of the President are also ex officio members of this Council. This Council’s major task is to opine candidates to become judges (and to promote them to a higher level court) and present them to the President to be appointed. The amendment ratified by the Sejm contemplates, among other things, the formation of two chambers in the National Judiciary Council and the expiry of the term of office of its members 30 days after its enactment: 15 judges and 6 members of parliament. The new members of this Council would be elected for a joint, 4-year term of office (it would be possible to be re-elected to the National Judiciary Council only once). The executive body of the Sejm or at least 50 members of parliament would submit to the Speaker of the Sejm candidates to become members of the National Judiciary Council as judges. They may elect candidates only from among judges recommended by legal circles. Associations of judges or public prosecutors, groups consisting of at least 25 judges or public prosecutors, the Polish Bar Council (advocates), the National Bar Association (legal advisors) and the National Public Notary Association would hold right this right. The following persons would belong to the First Assembly of the National Judiciary Council: the First President of the Supreme Court, the President of the National Administrative Court, the minister of justice, a person appointed by the President, four members of parliament and two senators. 15 judges of all levels elected by the Sejm would form the Second Assembly. According to the amendment, if the two chambers have differing opinions concerning a candidate to become a judge, then the chamber that issues a positive opinion of such a judge may apply for the Council to make a decision with its full membership. In that case, 2/3 of the membership of the entire Council would have to be in favor of the candidate.
Bill on the Supreme Court The bill on the Supreme Court that was published on the parliament’s website on Wednesday, 12 July 2017 before midnight has evinced the bulk of the critical remarks and protests. Some of this bill’s clauses envisage three new chambers in the Supreme Court, modifications to the appointment of Supreme Court judges and facilitation of placing the current Supreme Court judges in retirement. Three new chambers are to be established in the Supreme Court: the Private Law Chamber, the Public Law Chamber and the Disciplinary Chamber. The following Chambers currently exist in the Supreme Court: the Civil Chamber, the Criminal Chamber, the Military Chamber and the Labor, Social Insurance and Public Affairs Chamber. This bill also calls for making numerous changes to the disciplinary responsibility of Supreme Court judges. In turn, article 87 of the bill stipulates that "...the Supreme Court judges appointed pursuant to regulations in force to date shall be placed in retirement on the day after the effective date of this act, except for the judges designated by the Minister of Justice". "If a Supreme Court judge holding the position of the First President of the Supreme Court is placed in retirement (...) the Supreme Court judge designated by the Minister of Justice shall discharge the duties and powers of the First President of the Supreme Court" - reads the subsequent article in this bill. In their justification to this bill the authors admit that "there is no doubt that the changes presented above to the organization of the Supreme Court are material changes". "In particular, as a consequence of the intended formation of new Chambers and divisions and the changes in cognition and procedure, the Supreme Court will become de facto a totally different court, both in terms of how it is organized and how it functions", they adjudged. That is why - as was added - "just as in the case of every other material change to how courts are organized, this will prompt the necessity of re-defining staffing needs, among others, in line with the newly-defined scope of the Supreme Court’s duties. "This bill anticipates that this circumstance will be solved by making the decision to place the Supreme Court judges appointed pursuant to the regulations in force to date in retirement, where they would retain the right to receive the salary they receive in their most recent position of being a Supreme Court judge until they turn 65 years of age", they wrote. At the same time, the author of the bill "allows for the possibility of transferring a judge in retirement in response to his or her request - to take a position in a common, military or administrative court; the Minister of Justice shall make the decision in this subject matter". A judge who is transferred will be able to use the title of "former Supreme Court judge". "On the effective date of this act, the Minister of Justice shall designate the Supreme Court judges who shall remain active by publishing an announcement in the Minister of Justice’s official journal, having regard for the necessity of implementing the organizational changes stemming from the change in the Supreme Court’s organization and to sustain the continuity of its work", the bill contemplates. As has been written in the bill, the Minister "shall simultaneously specify the Supreme Court chamber in which the Supreme Court judge will perform his/her duties, having regard for the position held to date by the judge and the Supreme Court’s adjudication needs". The Law and Justice members of parliament pointed out in the justification to the bill that "during the discussion on the shape of the currently binding Act on the Supreme Court, opinions emerged on the necessity of simplifying how this judiciary authority body is organized, and consequently, of rationalizing the system for running the Supreme Court". "The crucial solution that does not have a counterpart in the currently binding state of law is the formation of the Disciplinary Chamber whose properties (...) will involve examining disciplinary matters concerning the Supreme Court judges, common court judges, military court judges, public prosecutors of the common organizational units of the public procurement office, prosecutors of the Institute of National Remembrance, advocates, legal advisors, public notaries and court bailiffs" - the justification writes. The Disciplinary Chamber is supposed to consist of the First Division and the Second Division. "The First Division shall be responsible in particular for examining cases concerning Supreme Court judges and public prosecutors regarding disciplinary infringements bearing indications of intentional offenses prosecuted by public indictment” - the bill envisages. In turn, the Second Division is to examine appeals against the judgments of first instance disciplinary courts, cassation complaints against disciplinary judgments and appeals against resolutions adopted by the National Judiciary Council, among others. Additionally, the “drafted act fundamentally simplifies the procedures connected to choosing candidates to hold a position as a Supreme Court judge, while making them transparent, and furthermore, it strengthens the position of the National Judiciary Council in the process of appointing judges to this position”. Explanation was given that the requirement for the First President of the Supreme Court to assess the qualifications of a candidate to be a judge and the obligation for the General Assembly of Supreme Court Judges to examine the candidacy are to be overlooked. According to this bill, the First President of the Supreme Court would be appointed by the President from among three candidates - as opposed to how it is done presently – i.e. from among two candidates, presented by the General Assembly of Supreme Court Judges. "In this manner the decision-making role played by the judicial self-regulatory body will be preserved in the process of selecting and designating candidates to act in the capacity of the First President of the Supreme Court while simultaneously strengthening the President’s constitutional prerogative", reason the authors of this proposal. As the justification has assessed the matter, granting the authority to the Minister of Justice to issue the regulation laying down the Supreme Court’s rules and regulations, governing the total number of judicial positions of Supreme Court judges, the number of judicial positions in the various chambers, the Supreme Court’s internal organization and the detailed split of cases between the Chambers does constitute a material change. "It must be emphasized that the authorization existing on the basis of the currently binding state of law for the judicial self-regulatory body to ratify the Supreme Court’s rules and regulations, and thus to regulate this subject matter through an internal legal act constitutes an exceptional solution that has not had any counterpart in the history to date of the court system in Poland" - the authors of the proposal have assessed. It has also been written in the bill that “someone who completed military service, worked for or was an associate of the security service authorities” during the existence of the People’s Republic of Poland "cannot be appointed" to fulfil the office of a Supreme Court judge. Limits would also be imposed on Supreme Court judges by the power of the proposed amendments when it comes to additional activities - in particular, employment in a teaching or academic position. As was substantiated, the idea is to avoid a "situation in which involvement in teaching activity could constrain a judge from properly discharging his/her duties". This bill is also supposed to lower the age limit entitling a Supreme Court judge to go into retirement and establish it - as a rule - at 60 years for women and 65 years for men. The bill contains 140 pages. According to this bill, the vast majority of its clauses is supposed to take force after the elapse of 14 days from the date of proclamation.
Źródło: tvn24.pl/tłumaczenie Intertext.com.pl