Communication 13/2017: Presidential vetoes eliminate the greatest threats to the independence of the courts but do not remove the extensive interference of the minister of justice in the ordinary jurisdiction
It is good that the Act on the Supreme Court and the amendment of the Act on the National Judicial Council were vetoed by the president. However, his signature under the law amending the Law on the system of common courts and granting considerable powers to the minister of justice means that the independence of the judiciary and tripartite division of powers remain endangered.
In FOR analyzes1, we pointed out that solutions proposed in the Laws on the Supreme Court and the National Court of Justice deeply violate the rule of law and a number of provisions of the Constitution of the Republic of Poland - in particular the principle of division of powers, independence of courts, independence of judges or the principle of examination by the Parliament of a bill in three readings (as was the case with the "presidential amendment" to the law of the Supreme Court)2.
The lack of President’s signature under the governing regulations of the Supreme Court and the National Council of the Judiciary allows the Supreme Court to examine unrestrictedly two important cases.
The first one is the cassation submitted by the injured party after the legally ineffective legally pardon of the former management of the Central Anticorruption Bureau, including Mariusz Kaminski and Maciej Wąsik. The hearing on this matter is scheduled for 9 August 2017.
The other one is the response of the Supreme Court to the legal question posed by the Court of Appeal in Warsaw concerning the authorization of Julia Przyłębska to act on behalf of the President of the Constitutional Tribunal in civil proceedings and the right of a common court to assess correctness of selection of candidates for the President of the Constitutional Tribunal. Recognition of the case is scheduled for September 12, 2017.
The vetoes of the Supreme Court Act and the National Council of the Judiciary Act do not diminish the threat to the independence of the judiciary. The announcement by the President that he intends to sign the amendment to the Act on the system of common courts means granting considerable inference into ordinary courts to the minister of justice.
As pointed out in a study of FOR Foundation and many published opinions, among other of the ombudsman, the Supreme Court, the National Council of Judiciary, the National Bar, the National Chamber of Legal Advisors, university law departments, non-governmental organizations and constitutionalists, the law also violates many provisions of the Constitution of the Republic of Poland and allows the minister of justice to interfere in ordinary jurisdiction, which is has no justification in not Polish political system.
In particular, this impact relates to the following proposals:
- Changing the model of appointing presidents and vice-presidents of the courts as to increase the influence of the minister of justice on the posts. It will become possible to appoint less experienced lower-level judges to posts of presidents or vice-presidents of courts. At the same time, the minister of justice, not the president of the superior court, will be in charge of all these appointments. In addition, an opinion of the relevant judicial self-government body on a candidate to these positions is no longer required.
- The introduction of imprecise conditions allowing the minister of justice to revoke the president or vice-president of a court before the end of his term of office. The law allows for removal on the grounds of "persistent failure to perform the official duty" or "particularly ineffective actions in the field of full administrative supervision, or work organization, in a court or lower court." In addition, the minister of justice was granted the right to immediately suspend the president or vice-president of a court until the opinion of the National Council of the Judiciary is received.
- Awarding the minister of justice the right to arbitrarily dismiss the presidents and vice-presidents of common courts appointed on the basis of earlier regulations. The head of the ministry of justice will have the power to make a specific "personnel verification" and dismiss any of the current presidents and vice presidents of the courts without any substantive justification - even so vague as mentioned above.
- Granting the minister of justice the right to arbitrarily decide whether a judge who reaches retirement age can continue to work. If the law on the system of common courts enters into force, it will depend only on a discretionary decision of the minister of justice.
- The introduction of the possibility of delegating some powers of the minister of justice to secretaries and undersecretaries of state. This regulation could lead to a situation in which most of the activities may be performed by a person without adequate knowledge of the judiciary and legal education. This solution will also help to blur responsibility for possible errors in the administrative supervision of the head of the justice department over the courts.
- Allowing the minister of justice to transfer to the Treasury copyrights to any computer program belonging to court IT systems. The amendment provides for the possibility of nationalization and expropriation of copyrights. It will be executed through a decision issued by the minister. According to the Act, it can be taken in the case of "the threat to the performance or continuity of the functioning of the computer program, or if a valid State interest or the good of the judiciary requires the assurance of their efficiency or continuity of operation, and an agreement in this respect with the copyright holder encounters obstacles". Even if the expropriation in question would entail adequate compensation to the author of the computer program, it is difficult to agree that an arbitrary interpretation of the "good of justice" constitutes a proportionate reason for such action.
Presidential veto alleviates the greatest threats to the independence of courts but does not remove the broad interference of the Minister of Justice into the general judiciary.
The opinion of the FOR Foundation and the views of other entities referred above, concerning the unconstitutionality of the discussed solutions, are still valid. This amendment should not become part of the Polish legal order.
Communication by FOR (in Polish) aviliable here.
1 See: “Stanowisko FOR w sprawie projektu ustawy o Sądzie Najwyższym oraz nowelizacji ustaw o Krajowej Radzie Sądownictwa i o ustroju sądów powszechnych”, https://for.org.pl/pl/a/5400,stanowisko-for-w-sprawie-projektu-ustawy-o-sadzie-najwyzszym-oraz-nowelizacji-ustaw-o-krajowej-radzie-sadownictwa-i-o-ustroju-sadow-powszechnych accessed 24.07.2017]; P. Wachowiec,”Another attack of PiS on the independence of the judiciary: changes in the National Council of the Judiciary and the court system”, FOR Analysis 10/2017; P. Wachowiec, “The draft amendments to the National Court Register - another attempt to limit the rule of law”, FOR Analysis 8/2017.
2 It was also pointed out, contrary to the positions of marshals of both chambers, that the text of the Act on the Supreme Court adopted by the Parliament was substantially different from that adopted by the Senate. It is incompatible with the constitutional mode of statutory setting. See: P. Szymaniak, P. Słowik, Senat przegłosował nie tę ustawę o Sądzie Najwyższym, co trzeba, http://www.gazetaprawna.pl/artykuly/1059647,reforma-sadow-senat-przeglosowal-zla-ustawe.html [accessed 24.07.2017 r.]; P. Szymaniak, P. Słowik, DGP odpowiada kancelarii Sejmu i Senatu: Na skutek zmiany numeracji ustawy różnią się merytorycznie, http://prawo.gazetaprawna.pl/artykuly/1059743,dgp-odpowiada-kancelarii-sejmu-i-senatu-na-skutek-zmiany-numeracji-ustawy-roznia-sie-merytorycznie.html [accessed 24.07.2017 r.]
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Patryk Wachowiec - Legal analyst of FOR, President of the Center for Analysis and Development Center
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