The judiciary of Poland (Polish: sądownictwo w Polsce) is a collective term for all authorities exercising the judicial power of the Polish state, vested by virtue of Chapter 8 of the Constitution of Poland.[a] As in almost all countries of continental Europe, the Polish judiciary operates within the framework of the civil law legal system.
The courts (sądy), designated by the Constitution as those exercising the administration of justice (Polish: wymiar sprawiedliwości), are the bodies that review the vast majority of cases, with the exception of those specifically assigned to the two tribunals (Polish: trybunały). The courts are formally divided into common courts (Polish: sądy powszechne) which are the courts that have jurisdiction covering all matters other than those specifically assigned to other courts (and thus include civil, commercial, labour and social insurance law disputes as well as most criminal cases), administrative courts (Polish: sądy administracyjne), which review complaints challenging the legality of administrative proceedings and their outcomes, and the military courts (Polish: sądy wojskowe), which serve as criminal courts for the military. The Supreme Court is considered distinct from the common or military courts, in spite of its role as the court of last resort in all non-administrative cases;[1] at the same time, the Supreme Administrative Court is the top court for administrative matters. Everyone has a guaranteed right to appeal to a court of higher instance, but appeals and cassations to the apex courts are limited by law; therefore, only a fraction of cases may reach them.
There are currently two tribunals established by the Constitution, namely the Constitutional Tribunal (Polish: Trybunał Konstytucyjny) and the State Tribunal (Polish: Trybunał Stanu), which are separate from the rest of the judiciary. The former rules on the compliance of challenged statutes with the Constitution and is the only court in Poland empowered with striking down acts and regulations which it deems unconstitutional.[2] The State Tribunal has exclusive jurisdiction over indictments for crimes committed by the highest state officials, but it convenes very rarely.
Court judges in Poland are appointed for life by the president of Poland upon nomination by the National Council of the Judiciary (Polish: Krajowa Rada Sądownictwa), an auxiliary body established for this purpose by the Constitution. They are assisted or supplemented by various other judicial officials in the court, including assessors, law clerks (asystent), registrars (referendarz) and lay judges (ławnik). Professionals such as bailiffs (komornik sądowy) and probation officers (kurator sądowy) act on the court's behalf to enforce judges' orders. In contrast to the court judges, the ones sitting in tribunals (with the exception of those sitting there ex officio) are elected by the Sejm with a simple majority of its deputies.
Several issues plague the Polish judiciary. The courts are widely seen to be too slow, and the trust in the court system is low among the general population. Changes to the judiciary carried out from 2015 by the ruling United Right coalition, ostensibly aimed at remedying these handicaps, caused much controversy and provoked an ongoing constitutional crisis.[3][4][5] The conservative government is generally accused, in Poland as well as internationally, of trying to take over the courts,[6] which created a conflict between judges appointed before the Law and Justice-led coalition made changes to the judiciary and their supporters and those appointed by the new rules. The disciplinary system, widely considered to be non-independent, has in particular drawn condemnation and led the European Court of Justice (ECJ) to order the suspension of the Disciplinary Chamber of the Supreme Court and to impose a €1-million-per-day fine since Poland did not comply with the order. The Constitutional Tribunal, widely seen as captured by the Law and Justice party, has issued decisions aiming to thwart the application of the unfavourable rulings of the ECJ and the European Court of Human Rights by asserting they were issued outside the courts' competences and without regard to the Polish Constitution.
Structure
![A scheme of judicial process](https://web.archive.org/web/20220602010347im_/https://upload.wikimedia.org/wikipedia/commons/thumb/1/14/Polskie_s%C4%85dy_angielski_-_Polish_courts_English_01.svg/220px-Polskie_s%C4%85dy_angielski_-_Polish_courts_English_01.svg.png)
This section describes the legal state of the structure of the judiciary as of 30 May 2022.
Common courts
The common courts (Polish: sądy powszechne), according to article 177 of the Constitution, are the courts of general jurisdiction, i.e. they rule on all cases in which the jurisdiction has not been explicitly transferred to other courts. This includes a broad range of cases, including civil, criminal, labour, economic and insurance law.[8] The territorial jurisdiction of these courts and their creation is regulated by the minister of justice.[9]
Translating the names of the two lowest instances of Polish common courts into English may cause problems, because the designations used internationally, such as by the European Union,[10] as well as by some government agencies like Statistics Poland,[11] may be used by the Polish Ministry of Justice (MoJ)[7] in an exactly opposite sense, creating confusion. All further references to the courts in this article will feature the translations as provided by the MoJ,[7] or the Polish names in italics.
Sąd rejonowy
A sąd rejonowy, translated by the Ministry of Justice into regional court,[7] or, by some other organisations, into district court,[10][11][12] is the trial court for the vast majority of cases, namely for all contravention charges, as well as the majority of misdemeanors and low-value lawsuits. In fact, according to the Statistical Yearbook of the Republic of Poland, out of about 14,381,500 cases solved in Poland in 2020, about 13,477,800 originated in these courts.[13] There are currently 318 such courts, each normally spanning several gminas; however, some large cities, like Warsaw, Kraków, Łódź, Wrocław, Poznań, Gdańsk, Szczecin, Lublin and Katowice, are split between two or more such courts.[9] The Minister of Justice, as authorised by article 19 of the Law on the organisation of common courts, may create through a regulation a local branch division of a sąd rejonowy located in a town other than the main seat of the court and consisting of replicated divisions mirroring those operating at the main seat (either all or selected), with both locations supported by a single administrative apparatus.[14]
Trial divisions
All such courts hear trials in at least three divisions (wydziały): a civil (cywilny), a criminal (karny) and a family and minors (rodzinny i nieletnich) one. In addition to that, the courts based in the cities that at the same time host a sąd okręgowy or other located in a city with powiat rights also include an economic (gospodarczy) division;[13] and in most cases also a labour and social insurance (pracy i ubezpieczeń społecznych) division.[15] If a dispute (e.g. between two companies or between an employer and an employee) occurs within the jurisdiction of a court without the relevant chamber, the case must be tried in the nearest court that includes it (as indicated by the minister of justice - this often happens to be the seat of the sąd okręgowy).[15][16] One of the two regional courts for Lublin additionally operates a nationwide civil division for cases filed using a simplified procedure of the electronic writ of payment (Polish: elektroniczne postępowanie upominawcze), regardless of the sum in dispute.[17]
Other divisions
Each regional court also has a land and mortgage registry division (wydział ksiąg wieczystych), which records various transactions with respect to real estate and land titles. 21 courts in largest cities additionally operate 27 (duplicate in the cases of the busiest courts) economic divisions designated specifically for maintaining the National Court Register (Krajowy Rejestr Sądowy), which is the company register for all companies except those formed under sole proprietorship, and 52 courts operate an information point providing access to and excerpts from data of the Register.[18] These, however, they have been losing importance, as the Register may nowadays be searched online free of charge (the attested excerpts remain subject to payment).
In addition, 11 courts (serving the cities where appeal courts are also located) maintain also a further economic division, designated for operating the Register of Pledges containing entries on all registered pledges and voluntary liens granted on collaterals other than real estate, including securities, intellectual property rights or movables,[19] the latter with the exceptions of maritime ship mortgage and maritime liens, as they are entered in a separate Registry of Ships. In addition, the Register of Pledges does not cover collaterals under tax liens, registered in the separate Register of Tax Liens operated by the National Revenue Administration.
Since 1 January 2020, some courts may also create an enforcement division (wydział egzekucyjny), dealing mostly with enforcing court's orders to seize assets in order to cover liabilities.[20]
Sąd okręgowy
A sąd okręgowy, also translated inconsistently, with variants including circuit,[12] provincial[10] or regional court[21] (the Polish MoJ translates the name into district court),[7] is higher in the hierarchy of the common courts compared to the sąd rejonowy. There are currently 47 district courts, located mainly in larger cities;[13] the newest one in Sosnowiec was opened on 1 April 2022.[22] Warsaw is the only city to be split between two circuit courts (Warsaw and Warsaw-Praga district courts).[9] In 2020, they heard an estimated 808,600 cases.[13]
The district court serves both as a court of original jurisdiction and appellate jurisdiction. As an appellate court. it hears appeals from the sąd rejonowy courts within its territory (known as okręg), There is also a specified catalogue of cases where the court has original jurisdiction,[citation needed] which includes:
- lawsuits claiming more than 75,000 PLN of worth, except for those concerning alimony, infringement on rights of possession, separation of property during divorces, challenging a land and mortgage register entry, or those filed using a simplified procedure of the electronic writ of payment (elektroniczne postępowanie upominawcze);[citation needed]
- lawsuits concerning personal rights (e.g. personality rights, right to privacy, defamation and freedom of conscience cases), except for parenthood and adoption cases;[citation needed]
- intellectual property lawsuits (by selected courts);[citation needed]
- maritime code lawsuits (by selected courts);[citation needed]
- indictments related to civil aviation accidents and serious incidents (by selected courts);[citation needed]
- press law lawsuits (but not indictments) concerning all media outlets; applications and complaints related to press outlets other than those covered by the broadcasting act, including their registration;[citation needed]
- personal data protection law lawsuits (but not indictments);[citation needed]
- complaints challenging the split of a cooperative;[citation needed]
- complaints challenging the existence, legality or legal effect of resolutions of legal persons and other entities with legal capacity;[citation needed]
- complaints against the rulings of the National Appeals Chamber which is a central quasi-judicial body established to review challenged outcomes of public procurement proceedings, primarily tenders (by selected courts);[23]
- applications claiming damages for the effects of a legally valid and binding (i.e. non-appealable) court verdict;[citation needed]
- applications and complaints concerning incapacitation of a person;[citation needed]
- applications and complaints concerning imposition or termination of legal separation in a marriage;[citation needed]
- applications for authorization of telecommunications, postal or internet data surveillance;[citation needed]
- charges of submitting a false declaration with regard to lustration;[citation needed]
- indictments for serious crimes, including all crimes that carry a punishment of at least 3 years of imprisonment or more (zbrodnie or felonies); and selected other crimes (występki or misdemeanours) as specified in Article 25 of the Code of criminal procedure;[citation needed]
- civil lawsuits referred from a sąd rejonowy for trial in a circuit court (may be remanded to sąd rejonowy, with justification), and criminal cases referred by the appeal court on a request of a sąd rejonowy (may not be remanded)[citation needed]
The district courts always include a criminal and a civil division (typically two for each type, one for first-instance cases, and another one designated as an appellate division; nevertheless, an appellate section within a single division may be formed as an alternative instead, in the case of smaller courts).[24] as well as a labour and social insurance division; some may additionally have a commercial division as well as an inspection division (wydział wizytacyjny) tasked with administrative auditing and oversight of the subordinate courts; a penitentiary division for cases related to prisons, an execution division with similar roles to sąd rejonowy court's enforcement division, and others according to the court's needs as determined by the minister of justice.[24]
All of these courts are responsible along with their military counterparts for issuing European arrest warrants, either on own initiative or on a request of a subordinate court), as well as fot maintaining the registry of press outlets , which is obligatory for all Polish printed or electronic periodical media outlets other than those licensed or listed under the broadcasting act by the National Broadcasting Council, in order for them to legally publish.[citation needed]. They are also responsible for maintaining lists of available expert witnesses in various fields, as well as of physicians enrolled as court physicians, holding exclusive specific authorization to issue recognized sick-leave certificates excusing for absence in court proceedings, mandatory for the trial participants (including the defendant or the parties to a civil litigation, their legal representation, as well as the subpoenaed witnesses), an institution introduced in order to limit the previously widespread abuse aimed at obstructing justice.
In a few cases, selected district courts are assigned exclusive jurisdiction over specialist matters. Five courts, in Gdańsk, Katowice, Lublin, Poznań and Warsaw, have special intellectual property divisions,[25] with a catalogue of selected IP lawsuits (including all related to patented inventions, protected integrated circuits or utility models, as well as plant varieties protected by plant breeders' rights) heard exclusively by the Warsaw court.[26] The Warsaw district court also includes a special division for telecommunications, postal or internet data surveillance, entrusted with reviewing surveillance authorization requests filed by the uniformed services. It is also the only district court adjudicating on indictments related to civil aviation accidents and serious incidents, competition law complaints[27] or public procurement law complaints, and is the only court responsible for maintaining the registers of political parties,[28] investment funds and pension funds.[29] All lawsuits based on the Polish maritime code are heard in first instance exclusively by the Gdańsk district court.[30]
The Szczecin and Gdańsk district courts also have affiliated quasi-judicial bodies named maritime chambers (in Szczecin and in Gdynia, respectively) maintaining the Registry of Ships (Polish: rejestr okrętowy) containing entries on all ships of the Polish international merchant marine, as well as on rights and liabilities related to them (ship mortgage, maritime liens; they also hear disciplinary maritime law charges against shipowners, ship captains, other ship crew members, maritime pilots etc. in cases of maritime accidents; their rulings in this capacity may be appealed to a single Second-Instance Maritime Chamber in Gdynia (also affiliated to the sąd okręgowy in Gdańsk), whose rulings may in turn be appealed to the Gdańsk appeal court (criminal division, specifically).
Sąd apelacyjny
Sąd apelacyjny (translated as appeal court[7] by the Ministry of Justice), as the name suggests, primarily functions in appellate jurisdiction. These 11 courts hear appeals from rulings made by a common sąd okręgowy court in its original jurisdiction; additionally, they hear requests to cancel a decision of a Polish arbitration court (article 1208 of the Code of civil procedure) and appeals from rulings of second-instance judicial bodies of statutory professional regulatory colleges governing five among the self-regulating professions (public confidence professions), namely bailiffs,[31] architects,[32] civil engineers, tax advisors, and auditors (while second-instance rulings in the remaining twelve such professions may only be subject to cassation in the Supreme Court - see below), as well as well as disciplinary bodies for certain other regulated professions, including (but is not limited to) sworn translators, school teachers, academic teachers, probation officers, civil servants, civilian non-elected officials of state institutions outside of the civil service (excluding justices and public prosecutors), members of the diplomatic service (excluding ambassadors), as well as researchers working for state-owned research institutes or the Polish Academy of Sciences institutes.[33]
Three divisions are normally formed within these courts: the criminal division, the labour and social insurance division (which also hears appeals from rulings of the abovementioned second-instance disciplinary bodies) and the civil division (which hears appeals from verdicts in civil, family or economic law lawsuits,[24] as well as in intellectual property lawsuits, the latter heard either in Poznań or in Warsaw, depending on the sąd okręgowy court of their origin).[25] The criminal division of the court in Gdańsk also hears appeals from the rulings of the Second-Instance Maritime Chamber in Gdynia, a quasi-judicial body affiliated to the district court in Gdańsk.[citation needed]
Each appeal court also has an affiliated disciplinary court hearing in first instance the majority of charges against common court justices, with its verdicts subject to appeal to the Supreme Court, with the exception of the most grave cases specified in the Polish Supreme Court Disciplinary Chamber law, heard both in first and in second instance by the Disciplinary Chamber of the Supreme Court.[14]
An inspection chamber may also be formed for auditing and oversight of the subordinate courts within the appeal court's jurisdiction (known in Polish as apelacja, not to be confused with another meaning of this word, namely an appeal).[24] The court is tasked with making a budget of all the courts within its jurisdition and control the expenditures of the district and regional courts.[34] Some of them are also tasked by the Minister of Justice with exercising a centralized administrative role in a certain field for all Polish common courts, e.g. the court in Wrocław develops and coordinates IT systems for all common courts, while the one in Kraków operates the Procurement Center for Judiciary.[citation needed]
Military courts
The military courts generally deal with contravention charges or criminal indictments involving the Polish Armed Forces and its civilian personnel, as well as those involving foreign soldiers and their personnel during their duties if the treaties allow them to be tried on Polish soil.[35] There are seven garrison military courts (wojskowy sąd garnizonowy) under the jurisdiction of two military sąd okręgowy courts (wojskowy sąd okręgowy),[36] which roughly correspond to the regional and district common courts, respectively. The creation of military courts and their territorial jurisdiction are regulated by the minister of defence,[36] while the minister of justice makes internal regulations for the court.[37]
Most of the court-martial cases begin in garrison military courts, whose ruling may be appealed in the district military court.[citation needed] Exceptions to this rule include:
- indictments for all felonies or those of misdeameanours which would otherwise be heard by a sąd okręgowy in civilian settings;[citation needed]
- indictments for all crimes related to aviation accidents and serious incidents involving exclusively aircraft of the national or foreign state uniformed services;[citation needed]
- indictments for all crimes committed by officers of the rank of major or senior,[citation needed] and
- indictments for all crimes committed by foreign soldiers and foreign civilian personnel of the armed forces,[citation needed]
which are tried in the military sąd okręgowy courts and may be appealed to the Supreme Court.[35]
The military sąd okręgowy courts are responsible along with their civilian counterparts for issuing European arrest warrants, either on own initiative or on a request of a subordinate court. Each of them also has an affiliated disciplinary court hearing in first instance the majority of charges against military court justices, with its verdicts subject to appeal to the Supreme Court, with the exception of the most grave cases specified in the Polish Supreme Court Disciplinary Chamber law, heard both in first and in second instance by the Disciplinary Chamber of the Supreme Court.[14]
Supreme Court
The Supreme Court (Sąd Najwyższy) is the highest court for verdicts made in common and military courts, but is not part of either.[38]
In cases originating in the military sąd okręgowy courts, the Supreme Court serves as the court of second instance. It also hears appeals from rulings in disciplinary cases of public prosecutors and common or military court justices originating from panels affiliated to the Minister of Justice, an appeal court or a military sąd okręgowy, respectively. However, in parallel with many other European countries, the Supreme Court primarily serves as a court of cassation reviewing selected verdicts of the courts of second instance,[citation needed] namely:
- verdicts of the common or military sąd okręgowy courts if the case originated in a sąd rejonowy or a military garrison court, respectively,[citation needed]
- verdicts the appeal courts if the case was heard in first instance by a sąd okręgowy;[citation needed]
- rulings of the second-instance judicial panels of statutory professional regulatory colleges (chambers) of twelve self-regulating professions (public confidence professions), namely: physicians, dentists, veterinarians, pharmacists, nurses, midwives, clinical diagnosticians, physiotherapists, barristers, attorneys at law, notaries, and patent attorneys.[b]
Cassations and extraordinary complaints may be filed either by selected public officials (skarga nadzwyczajna, extraordinary complaint ), or via the Public Prosecutor General/Ombudsman or Children Ombudsman in cases of verdicts concerning children ("extraordinary" cassation), or via cassation on request of the party ("ordinary" cassation), or, in criminal cases, by lodging an complaint on a second instance court verdict .[39] Only extraordinary cassations may be entered in any case; other methods of complaint/cassation have limitations, and some cases may not be subject to cassation.[citation needed]
Among other duties, the Supreme Court reviews all complaints about parliamentary, European Parliament and presidential elections as well as referendums and certifies the validity of these. The Supreme Court is also able to strike down resolutions of the self-governing organs of barristers, attorneys at law and notaries it deems unlawful and decides about internal labour relations.[citation needed]
The Supreme Court is led by the First President of the Supreme Court, who is also ex officio the President of the State Tribunal and a member of the National Council of the Judiciary. It is legally divided[40] into five chambers (izby) headed by the Presidents of the Supreme Court: the Civil Chamber reviews civil, economic and family law cases; the Criminal Chamber rules on criminal matters, including on all appeals and cassations from the military courts; the Chamber of Extraordinary Control and Public Affairs makes decisions about electoral complaints and certifies elections and referendums, while also ruling on some narrow areas of law (e.g. competition cases) and hearing complaints about technical issues of judgements (lack of independence of judges, case being decided too slowly etc.). The Labour and Social Insurance chamber issues rulings on labour law in cases not related to the Supreme Court judges themselves, which are reviewed by the Disciplinary Chamber. The latter serves as an appellate disciplinary court for lesser charges against most judges and prosecutors, while in disciplinary cases against its own judges, as well as the more serious disciplinary cases as defined by law,[c] trials are also held there.[14]
The Supreme Court has been embroiled into numerous controversies since the Law and Justice (PiS) party launched an overhaul of the court in 2017, making a failed attempt to force a substantial part of its justices into early retirement and substituting them with politically aligned nominees. The legitimacy of the Disciplinary Chamber (fully appointed by a partisan-controlled National Council of the Judiciary) has been in particular widely challenged and the European Court of Justice ordered its suspension. While the Chamber continues to adjudicate regardless, the governing coalition considers dismantling it.[41]
Administrative courts
Administrative courts hear complaints on decisions and administrative rulings of public bodies, including those of all state or local governemt executive bodies as well as those of the executive bodies (but not the disciplinary ones - see #Supreme Court and #Sąd apelacyjny sections above) of regulatory colleges for self-regulating professions.
In addition, decisions of private bodies exercising official authority devolved from the state, may in some cases also be subject to complaint, however, only the ones delivered in such official capacity of the body, either a private juridical person (e.g. a private higher education institution) or other private legal entity (e.g. certain decisions of a private school with public school rights), in some cases even including those delivered by a natural person operating a private business under sole proprietorship (e.g. certain specialized types of health certificates mandatory for various official purposes such as obtaining a gun license or a driving license may be issued also in a private practice of a physician; nevertheless, they are considered administrative decisions and may be appealed (usually to a voivodeship centre for occupational medicine, except for those originating in the latter, subject in such case to appeal to designated state research institutes instead) due their profound legal consequences, as receiving a negatve certificate eliminates any prospects of obtaining the desired license or qualification, but also due to the fact that the power to issue certificates of a given type is restricted on a personal basis exclusively to physicians officially listed as holders of the required appropriate specific revokable administrative authorization granted by the government and exercised under its oversight and regular inspection).[citation needed]
Before a party can seek redress in administrative courts, all administrative appeal options must be exhausted, thus making the challenged decision final (i.e. either non-appealable at all or upheld on appeal to a higher administrative body or, in few exceptional situations where no higher body exists, on appeal to the original body).[42] In some cases, exercise of a specific power by a public body may explicitly be excluded by law from being treated (and thus subject to review) as administrative decisions; such clause has been in particular routinely inserted into acts governing various state exams with regard to the process of determining and announcing their outcomes.[citation needed]
The bodies to which the decision must be appealed first are specified in the respective acts; e.g. decisions concerning taxes may in most cases be appealed to the director of a respective revenue administration chamber , decisions of other government administration bodies may in most cases be appealed to the head of the respective central government office responsible or (when the latter does not exist) to the minister responsible; other examples of upper level administrative bodies include local government boards of appeal which are quasi-judicial bodies established in larger cities to process appeals against decisions of local governments located within their territorial jurosdiction, the Central Commission Determining Violations of Public Finance Discipline which is the upper level body in proceedings against public officials charged with violating public finance discipline, as well as the second-instance disciplinary bodies for undergraduate and graduate students, Ph.D. students or for the active servicemen of a state uniformed service.[citation needed]
If unsatisfied with the outcome of the upper body's review of the decision, the party may further challenge the decision by submitting it for judicial review through a complaint to one of the 16 voivodeship administrative courts (wojewódzki sąd administracyjny, WSA). These may be divided internally into several divisions. The Warsaw court also operates a local branch division in Radom.[citation needed]
A cassation (see also Supreme Court) may be brought in limited circumstances to the Supreme Administrative Court (Naczelny Sąd Administracyjny, NSA), which is the court of last resort for administrative law matters. It is also the court that resolves jurisdiction disputes between organs of local government, between local government boards of appeal and between these institutions and those of the central government.[43] Disciplinary proceedings against administrative judges, both on trial and on appeal, also happen in NSA.[43] This court, headed by the President of the Supreme Administrative Court, is divided into three chambers: Finance (finansowa), which resolves tax-related issues, Commerce (gospodarcza), which deals with issues related to financial instruments and corporate law, while the General Administration (ogólnoadministracyjna) chamber deals with issues not covered by the other two chambers.[44]
Constitutional Tribunal
The Constitutional Tribunal (Trybunał Konstytucyjny) is a court dealing with constitutional law, similar to those existing in many European countries. It is commonly considered the Poland's topmost court,[45][46][47] but technically it isn't a court but rather a tribunal. It does not normally review court cases on their merits, but rather rules on the constitutionality of statutes that are: sent by the President to check compliance with the Constitution after the parliament passed them, asked to be reviewed by the Public Prosecutor General or the Ombudsman on their request,[48] by the National Council of the Judiciary insofar as it is related to the independence of the judiciary,[49] or by a party in the case that exhausted all other legal remedies (skarga konstytucyjna), in which case the complaint must challenge the constitutionality of the law on which the unfavourable decision was handed down, rather than relitigate the case.[50] Should the Constitutional Tribunal find the law non-compliant with the Constitution, it has the power to strike it down.[48]
Additional duties of the Tribunal include deciding whether a political party's purpose violates the Constitution, rule on the jurisdiction disputes of central government organs mentioned in the Constitution, and declaring the President incapable of performing their duties if they were not able to tell it to the Marshal of the Sejm.[48] According to articles 190 and 239 of the Constitution, all of the Tribunal's decisions have been since 1999 non-reviewable and binding,[d] and they must be published in the respective official journal (usually the Journal of Laws of the Republic of Poland, as the majority of verdicts concerns treaties, acts or regulations).[citation needed]
State Tribunal
The State Tribunal (Trybunał Stanu) is a special judicial organ with exclusive jurisdiction over trials of the highest political offices of Poland in cases defined by the Constitution, namely (among active ones): the President, the Prime Minister, ministers, the President of the National Bank of Poland, the President of the Supreme Audit Office, members of the National Broadcasting Council (KRRiT), and legislators. The President may only be tried by the State Tribunal for their crimes; ministers are tried for all abuses of office and breaking the laws and the Constitution, other high executive officers are tried for breaking the laws and the Constitution, while legislators are only tried there for profiting from, or buying the property of central or local governments using their businesses. The State Tribunal holds both trials and appeals, though these are heard by different panels of State Tribunal judges.[51] The decisions of the Tribunal cannot be appealed to other bodies and may not be annulled by pardon.[citation needed]
In practice, the State Tribunal is used very rarely, it has issued verdicts only three times since the inception of its current design in 1982. Only two people were convicted by the State Tribunal.[52] Filing an indictment against the persons holding the highest executive offices in the national government (thus also most likely to commit crimes punishable by the Tribunal) requires a high supermajority, either a 2/3 majority in the National Assembly (a body formed on rare occasions by all Sejm and Senate members sitting together in a joint session) in regard to the President of Poland, or a 3/5 majority in the Sejm in regard to the Prime Minister of Poland and the members of his cabinet (the Council of Ministers), while the remaining offices are the only ones indictable by the usual majority of the entire membership in the Sejm. Due to the rarity of its operation, doubts have been raised about whether this system of accountability of politicians is effective.[52][53][54]
Proceedings
Poland is one of the countries whose law is based on the civil law legal system.[55] As is often the case with civil law countries, the proceedings, even though they have some characteristics of the adversarial system, are predominantly grounded in the inquisitorial system. The judges are supposed to take an active part in investigating the facts of the case, particularly in criminal law cases, and pre-trial proceedings are extensive. There was a brief legislative reform of the procedures in the direction of a more adversarial system, but it was reverted after the current governing party came to power.[56]
The principal rules of proceedings and evidence, along with detailed roles of each party and court official, are outlined in:
- in regard to civil law: the Code of Civil Procedure (Polish: kodeks postępowania cywilnego),[57] the Bankruptcy Law (Polish: prawo upadłościowe), the Restructuring Law (Polish: prawo restrukturyzacyjne), the Public Procurement Law (Polish: prawo zamówień publicznych)
- in regard to an overlap between both civil and criminal law: the Act on Procedure in Cases Concerning Minors (Polish: ustawa o postępowaniu w sprawach nieletnich),
- in regard to criminal law: the Code of Procedure in Cases Concerning Contraventions (Polish: kodeks postępowania w sprawach o wykroczenia),[58] the Code of Criminal Procedure (Polish: kodeks postępowania karnego),[35] the Fiscal Criminal Code (Title II only) (Polish: kodeks karny skarbowy (tytuł II tylko)), the Penal Enforcement Code (Polish: kodeks karny wykonawczy)
- in regard to administrative law: the Code of Administrative Procedure (Polish: kodeks postępowania administracyjnego),[59] the Law on Procedure Before Administrative Courts (Polish: prawo o postępowaniu przed sądami administracyjnymi), the Act on Enforcement Procedure in Administration (Polish: ustawa o postępowaniu egzekucyjnym w administracji), the Tax Ordinance (Polish: ordynacja podatkowa), the Law on Gatherings (Polish: prawo o zgromadzeniach)
- in regard to constitutional law: Election Code (Polish: kodeks wyborczy), Act on Organization and Procedure Before the Constitutional Tribunal (Polish: ustawa o organizacji i postępowaniu przed Trybunałem Konstytucyjnym).
Other particular acts may describe various specific procedures, but they almost always consist of a general reference to one of the procedures enumerated above, with only minor specific adjustments defined. The common feature of all judicial proceedings in Poland is that any party to the case is guaranteed the right to appeal (zasada dwuinstancyjności), as specified in article 176 of the Constitution; this however does not apply to proceedings before the Constitutional Tribunal. The venues of appeal vary greatly depending on the trial court, as specified in the relevant section.[citation needed]
Poland does not operate on binding precedent and Polish courts do not create law by issuing their verdicts (wyrok), instead relying on whatever statutes are in force, but the verdicts of the Supreme Court (SN) and of the Supreme Administrative Court (NSA) are widely followed in their respective domains of law.[60][61] Nevertheless, their rulings may bind the lower courts in particular cases. For example, if the court of the second instance requests guidance from the Supreme Court about laws that it struggles to apply, the conclusion of the SN legally binds the court but only in the case in which the court asked for guidance.[62] Additionally, the Supreme Court may issue internal legal principles (zasady prawne) approved by at least 7 judges, which in fact are law interpretations issued for mandatory use by other SN judges when issuing their verdicts.[62] In administrative courts, these internal legal principles are required to be followed both by the Supreme Administrative Court judges as well as by the voivodeship administrative court judges, while any deviations considered by a lower court should be referred to a 7-member panel of the NSA.[63] Notably, although a verdict of the Constitutional Tribunal's "has universal legal force" assessed by Jackowski to be approximately equivalent to the acts of parliament in the hierarchy of laws,[64] nevertheless, such status is not extended to the supplemented verdict justification, regarded as non-binding.[65] Judges may additionally request legal guidance from the Constitutional Tribunal, according to article 193 of the Constitution, and may send a preliminary reference to the European Court of Justice (ECJ) in European Union law matters,[66] which was even the case for the Constitutional Tribunal itself.[67] Responses to both types of requests are binding on the court which sent the reference. As Poland is a member of the Council of Europe, citizens may appeal to the European Court of Human Rights after exhausting all legal remedies in Poland, and the verdict will bind the Polish courts in the particular case.[citation needed]
Staff
Judges
Judges sitting in the tribunals
The tribunals, unlike the courts, are not under the purview of the National Council of the Judiciary. The Constitutional Tribunal judges are elected according to the article 194 of the Constitution of Poland by the Sejm with a simple majority for a nine-year non-renewable fixed term which starts upon taking oath received by the President. Whether and when the Sejm was allowed to elect judges in order to fill in advance a seat set to become vacant already after parliamentary elections (thus potentially both either still within the term of the lame duck Sejm or already after its expiry, as the latter is defined for ensuring continuity as occurring only upon the inaugural session of the newly elected Sejm, set within the timeframe of 30 days on a day chosen by the President freely at their discretion), and whether the Sejm might have invalidated an already conducted election of a judge as long as the oath was not taken yet, has been the issue of the political crisis in 2015.[citation needed]
The State Tribunal consists of 19 members. 18 of them (including two vice-presidents and 16 ordinary members) are elected with a simple majority by the Sejm for the duration of its term, while the position of the President of the State Tribunal is held ex officio by the incumbent First President of the Supreme Court)[citation needed]
Judges sitting in the courts and the National Council of the Judiciary (KRS)
Article 187 of the Constitution assigns the following proportions to the composition of members: one member appointed by the President of Poland, four MPs from the Sejm, two Senators, and fifteen court judges, chosen among the Supreme Court judges and members of the three parts of the judiciary (common courts, administrative courts, and military courts), who are appointed for four-year terms. The First President of the Supreme Court , the President of the Supreme Administrative Court and the Minister of Justice are given their seats ex officio. Prior to 2018, National Council of the Judiciary Act apportioned the fifteen judges into quotas: the 2011 law mandated two Supreme Court judges, two appeal court judges, eight district court judges, two administrative court judges, and one military court judge,[49] while before that, district courts chose one more member at the expense of administrative courts.[68] The requirement for strict apportionment has since been abolished.[69]
Also before 2018, all of the judges were chosen by the judges themselves, as has been the custom; however, the Sejm has since been granted the power to appoint the members among the judiciary by a simple majority vote, thereby effectively granting control over the KRS to whomever happens to have the majority in the lower house of the Polish parliament, which was the Law and Justice party at the time the law went into force.[70][71]
The National Council of the Judiciary does not issue rulings or orders as the judicial organs normally do, however, it plays a key role in appointment of all judges of the courts as the Constitution of Poland defines them. According to Article 179 of the Constitution, the KRS is the only organ with the authority of recommending candidates for judges of all courts;[72] it also nominates assessors, who eventually may become judges.[73] According to the current law, decisions of the National Council of the Judiciary are appealable to the Supreme Court, with the exception of cases where the candidate seeks nomination to the Supreme Court, in which case there is no legal recourse,[73] though the ECJ found the lack of possibility to contest this decision to be likely running afoul of the European Union law.[74] In practice, despite the theoretical possibility that the people with appropriate experience in practicing law may get to the bench in higher courts, the vast majority of recommendations by the National Council of the Judiciary for positions in non-trial courts has been from already serving judges.[75] The KRS then forwards a list of candidates it recommends to the President.[citation needed]
According to the Constitution, the President, after hearing the oath of new judges, appoints them for life, though all judges must retire by the age of 65 or 70 (see table below). There is no timeframe within which the President must publish their decision.[76] Whether the President may refrain from appointing a person nominated by the National Council of the Judiciary as a candidate for judicial office is a subject of scholarly dispute, with some contending that the role intended for the President by the fathers of the Constitution is unconditional and purely formal or ceremonial, a view supported by the unconditional wording of the article 179 of the Constitution (Judges shall be appointed...) while others consider it a prerogative exercised by the President at their discretion, a view supported by the absence of any constitutional deadline for a pending appointment.[77][78][79] In practice, there were instances where the President refused to appoint recommended judges, but it is very rare: according to a 2017 analysis, there have been only 20 cases out of more than 5,000 that the President refused to appoint judges proposed by the KRS to the head of state.[75] In 2022, another 11 judges, who have been nominated before 2018 by the KRS, were denied appointments to the courts.[80] In case law, the administrative courts have repeatedly found lack of jurisdiction when dealing with cases reviewing the decisions of the President about the appointment of judges,[81] and the Constitutional Tribunal ruled consistently that these decisions are not subject to judicial review.[76] The Constitutional Tribunal asserted in a controversial decision in K 3/21 that the European Union law allows the courts neither to control the legality of the judicial appointments by the President nor the legality of decisions by the National Council of the Judiciary, declaring both as unconstitutional.[82]
Assessors
Assessor (Polish: asesor) is a position existing in the lowest-level common, military and administrative courts. Assessors are appointed for a fixed term upon the completion 36 months of judicial apprenticeship and passing the judicial exam to issue verdicts along judges. Therefore, the position may be regarded as a trial appointment enabling final evaluation in the ordinary path to become a judge, and the final occasion to eliminate persons unfit for the office prior to the irrevocable lifelong appointment as a judge.[83] They share the same rights and responsibilities as other judges and may issue rulings and orders in the majority of cases.[84] Exceptions include orders to detain a suspect during pre-trial proceedings, review of a decision to decline to take up the case or discontinue it, and family law matters.[14] The institution briefly disappeared from the Polish legal system as the previous regulations about assessors were found by the Constitutional Tribunal and the European Court of Human Rights not to be guaranteeing enough judicial independence.[84]
Other legal positions in the judiciary
Both law clerks as well as registrars may sit the judicial exam after a specified time, enabling them to stand as candidates for the office of a judge, thus allowing a career path leading to the office of judge which is alternative to the ordinary one.[citation needed]
Law clerks (judicial clerks)
The law clerks (Polish: asystent sądowy) also serve on the court but do not issue rulings assisting judges with advice and support, with the intended purpose of reducing the day-to-day work burden of a judge. The position is held available only to trained jurists with a graduate degree, either upon completing a 12-month postgraduate training, or those who completed judicial apprenticeship but were nevertheless not appointed as assessors.[citation needed]
Registrars
Registrars , also known as court division officials[13] or court referendaries[85] (Polish: referendarz) are a relatively recent addition to the courts, them being first introduced in 1998. It is a person responsible for administrative matters of the judicial procedure and rulings (such as payment orders and enforcement of legal orders).[85] In common courts, it is also normally the person who heads the land registration chamber of the court or that of the economic law chamber insofar as it relates to liens.[86] The person may also serve as a judge in bankruptcy cases[87] and is the officer who is in charge of electronic writs of payment cases.[88] The registrar has also got some competences in criminal cases - for instance, the officer may reroute a potential criminal case to voluntary mediation, may decide to provide legal aid to a party upon its request and hears witnesses remotely.[35] In administrative courts, the referendarz, in addition to administrative duties as described above, is a mediation officer by default.[89]
Enforcement officials
The courts may usually also appoint special officers to execute their court decision. For example, probation officers (Polish: kurator sądowy) are employees of the court that assist it in resocialisation efforts and perform certain other activities.[90] Bailiffs (Polish: komornik sądowy), while not employees of the court, execute orders that aim to settle debts on behalf of the court.[91]
Lay judges
The lay judges (Polish: ławnicy, singular: ławnik).[84] are non-professionals embodying the societal factor in the organs administrating justice envisaged by the article 182 of the Constitution of Poland adjudicating cases together with professional judges in some family and labour law cases, as well as when investigating serious crimes (zbrodnie, see relevant section for the definition),[92] but their role and number has diminished somewhat over years,[93] and their service is limited by law to 12 days per year, with only exceptional extensions.[14] They are elected by municipal councils among the candidates 30–70 years old of at least secondary education completed, submitted by various organizatoions and bodies under numerous exclusion criteria prohibiting the position among others for members of uniformed services, clergymen, legal professionals or those sitting in administrative bodies issuing decisions potentially subject to judicial review.[citation needed]
Remuneration
The number of staff of each categories, the base salary as determined by law and the actual mean salary for some jobs are given in the table below.
Type of employee | Count, full-time equivalent | Baseline salary by law (multipliers of the mean monthly salary, unless otherwise noted)[14][95][96][40][97] | Mean monthly salary (PLN), full-time equivalent, in 2020[13] |
---|---|---|---|
Court judges | Up to 9,651 | ||
regional court | 6,003 | 2.05-2.50, depending on work experience | 14,350.79 |
district court | 2,546 | 2.36-2.92, depending on work experience | 17,821.58 |
appeal court | 417 | 2.75-3.23, depending on work experience | 20,938.39 |
Supreme Court | 97 | 4.13; 4.7495 after serving for 7 years in the court
Add 1.2 for the First President of the Supreme Court, 1.0 for the President of the Supreme Court (head of a chamber), 0.7 for leaders of sections (divisions of a chamber), and 0.5 for their deputies |
N/A |
garrison military court | Up to 38 | According to their military rank but not less than a regional court judge | N/A |
district military court | Up to 20 | According to their military rank but not less than a district court judge | N/A |
voivodeship administrative courts | 430 | As an appeal court judge | N/A |
Supreme Administrative Court | 100 | As in the Supreme Court | N/A |
Assessors | 433 | 1.64 (80% of the basic salary of a judge) | 9,825.68 |
Law clerks | 3,816 | 4,000-5,500 PLN in common courts;[98] in administrative courts, 2,930-6,830 PLN for law clerks, 2,930-7,950 PLN for senior law clerks.[99] | 5,428.12 |
Registrars | 2,436 | 1.5375-1.71 for registrars, 1.8445-1.938 for senior registrars, depending on length of work | 11,416.13 |
Probation officers | 4,979 | Anchored at 1,667.60 PLN in 2003 and increased every year according to indices issued by the government for public sector workers | 8,136.07 |
Lay judges[e] | 9,186 | 5.412% of the mean monthly salary[f] for every day of service
0.66% of the mean monthly salary in per diem |
N/A |
Constitutional Tribunal judges | 15 | 5
5.8 for the Vice-President, 6.2 for the President of the Constitutional Tribunal |
N/A |
State Tribunal judges | 19 | 10% of the mean monthly salary for every day of service + per diem | 0 PLN - did not convene in 2020 |
Note. 1. All court officers receive work bonuses, with an incremental increase of 1 percentage point each year until they have worked for more than 20 years in the judiciary (setting at a maximum of 20%). In the Supreme Court and the Supreme Administrative Court, there is no minimal time after which the bonus kicks in, while in other courts, 5 years must pass. The officers of the court may be eligible for other bonuses, as determined by law.
2. The salary is calculated using the mean salary of the second quarter of the year preceding the current year times the multipliers as given above. For example, in 2020, the mean salary of Q2 2019 is taken, which was 4,839.24 PLN[100] (for 2022, the baseline is 5,504.52 PLN).[101] The mean salary in 2020, for reference, was 5,226.00 PLN. |
Minimal requirements
Several laws as well as the Constitution set the criteria which the candidates must meet in order to serve in the judicial branch of the Polish government. The common requirement of all judges is that they must be Polish citizens of "flawless character" and must enjoy full civil rights; in addition to that, the Constitution bars political party and trade union members to join the judiciary, and forbids performing public activities that may undermine the independence of the judge or the courts. All statutes relevant to the justice organs forbid prospective judges from being a central government employee or a member of parliament; only State Tribunal members may work in local government organs. Professors and habilitated doctors of law at a Polish tertiary education facility may seek nomination to any of the judicial positions (assessors as well as judges), provided they also fill criteria unrelated to necessary experience. When appointed, however, the judges are immune from legal persecution and non-removable unless by a decision of a court.[citation needed] Some of the criteria, not mentioned in this paragraph, are summarised in the table below.
Criteria | Common and military courts[14] | Administrative courts[96] | Supreme Court[40] | Constitutional Tribunal[102] | State Tribunal[103][g] | |||
---|---|---|---|---|---|---|---|---|
Sąd rejonowy or military garrison court | Sąd okręgowy (common or military) | Appeal | Voivodeship (WSA) | Supreme (NSA) | ||||
Multiple citizenship | No | Allowed | No | Must fulfil all criteria to serve in the Supreme Court or the Supreme Administrative Court | Allowed | |||
Criminal record | Must not have been convicted of an intentional crime prosecuted by the state prosecutor or of a deliberate tax fraud (for Supreme Court judges, this also includes suspended sentences)
In common courts, candidates born before 1 August 1972 must produce a statement about their involvement (or lack thereof) with the Communist state security and military intelligence authorities; if they did have connections with them, they are barred from serving in the Supreme Court |
Must not have been convicted by a court of a crime | ||||||
Age bracket (years) | 29-65 (70)[h] | 35-65 (70)[h] | 40[i]-65 | 40-65 | N/A (see also Necessary experience entry) | |||
Necessary experience | Must have at least a master's degree in law recognised in Poland[j]
Must pass a judicial or a prosecutorial exam and work for 3 years as an assessor or be a judge of other courts or work as a prosecutor or as a counsel for the General Counsel to the Republic of Poland (PGRP) or practice law for at least 3 years |
Has been a regional court judge, a garrison (trial) military court judge or a prosecutor for 4 years
or was a judge of a district military court or of an administrative court or practiced law or worked for the PGRP for 6 years |
Has been a judge, a prosecutor, practiced law, or worked for the PGRP for 10 years | Must have at least a master's degree in law recognised in Poland
Has been a judge, a prosecutor, practiced law, or worked for the PGRP for 8 years[k] or has been a civil service worker tasked with applying or creating administrative law for 10 years or has worked as an assessor for the WSA for 2 years |
Has been a judge, a prosecutor, practiced law, or worked for the PGRP for 10 years | The Vice-Presidents of the State Tribunal, and at least half of its members must meet requirements for becoming a judge |
Criteria | Assessor | Law clerk | Registrar | Probation officer | Lay judge | |||
---|---|---|---|---|---|---|---|---|
Common courts | Administrative courts | Common courts | Administrative courts | Common courts | Administrative courts | |||
Multiple citizenship | No | Allowed | ||||||
Criminal record | Must not have been convicted of an intentional crime prosecuted by the state prosecutor or of a deliberate tax fraud | No formal requirement | ||||||
Age bracket (years) | No lowermost age | At least 30 years old | At least 24 years old | No lowermost age | At least 24 years old | No lowermost age | 30-70 | |
Necessary experience | Must have at least a master's degree in law recognised in Poland, go through three years of apprenticeship and pass a judicial or prosecutorial exam | Must have at least a master's degree in law recognised in Poland, work as a judge, prosecutor, counsel for the PGRP, or practised law for at least 4 years
or has been a civil service worker tasked with applying or creating administrative law for 6 years |
Must have at least a master's degree in law recognised in Poland | Must have at least a master's degree in law recognised in Poland, and pass one of the six exams: for registrars, for judges, for prosecutors, for notaries, for lawyers or for attorneys at law; or pass an apprenticeship for judges or prosecutors | Must have at least a master's degree in law recognised in Poland and have 3 years of experience as a civil service worker tasked with applying or creating administrative law | Must have at least a master's degree in psychology, pedagogy, sociology, or law, go through an apprenticeship for probation officers and pass an exam (this requirement may exceptionally be waived by the minister of justice) | Must finish full secondary school
To be a judge in labour law cases, the person must know labour rights | |
Note. To be a lay judge, the person must be employed, have a business or live in the area in which they are a candidate for at least one year, and get elected by the residents of the gmina from which they want to be a lay judge. At the same time, this person cannot be a judge, a prosecutor, a member of an organisation whose decision may serve as a basis of litigation, a member of law enforcement agencies, a lawyer, an active-duty soldier, a member of the clergy, or a gmina, powiat or voivodeship council member. |
Issues
Length of proceedings
The Polish court system, particularly the common courts, is considered to be slow.[104][105] In 2017, depending on the region, the time required for the case to go through the trial instance was 4–8 months on average, with longer proceedings largely in courts centred around larger cities; about 10% of cases required more than a year for that (with as much as 18.72% in Warsaw) and more than 1% of cases needed more than 3 years (of which almost 4% in Warsaw).[106] On the European level, Poland has slower proceedings in the highest courts, and has in general slower processing of civil cases than the median, but the criminal cases and the voivodeship administrative courts are often quicker than the median among the Council of Europe members.[107] This problem is also noted by the World Justice Project, where the lowest grade assigned to Poland was for timeliness of civil proceedings, which not only was behind other European countries but also much below the world average score (in criminal proceedings, the situation was still assessed as somewhat worse compared to its peers but much better than in civil cases),[108] and by the United States Department of State.[109] In 2013, the Centre for Public Opinion Research (CBOS), a state-run pollster, found that by far the most common complaint about the Polish justice system was the length of court proceedings.[110] The average tempo of processing all cases in the first instance (disposition time) has slowed over recent years and is now about the average of EU countries as of 2019.[111]
The problem with the length of proceedings has been recognised by both Polish and international courts. According to the statistics provided by the European Court of Human Rights (ECHR), from the time since Poland joined the Council of Europe in November 1991, out of 1,027 judgments that found Poland guilty of breaches of the European Convention on Human Rights, the biggest share of them - 445 judgments - concerned excessively lengthy proceedings.[112] The ECHR ruled in 2015 in Rutkowski et al. v. Poland that Poland offered inadequate protections for parties who suffer from long court proceedings, some of which have been dragged for years, despite a law, itself created after as a result of another ECHR case, theoretically aiming to address the problem.[113] The Constitutional Tribunal wrote in the reasonings of a 2011 case that a civil lawsuit was "expensive and long",[114] and the vice-minister of justice said the same in 2014.[115] The length of proceedings caused cases such as the murder of Grzegorz Przemyk by Communist authorities in 1983 to be closed inconclusively as the indictments went past the prescriptive period.[116]
According to a 2020 survey of Polish lawyers and attorneys at law, 95.8% of these professionals said that the excessive length of proceedings has a systemic character;[117] these problems occur both on the judicial and the prosecutorial side.[118][119] Excessive caseloads (over 14 million cases per year for fewer than 10,000 judges, which yields almost 4 cases per day on average), overbroad spectrum of cases under the purview of the courts,[120] delays in requesting and delivering opinions of expert witnesses,[117] faulty work organisation and an excess of managerial positions distracting from adjudication of cases,[121] among other reasons, are said to be the causes for such delays. At the same time, most lawyers were afraid to make complaints about inadequate speed of processing the case for fear of angering the judge, and only 12% believed that this tool was effective.[117] According to a November 2021 poll by Rzeczpospolita, 54% of respondents did not believe that the proceeded reforms of the judiciary would speed up proceedings.[122]
Lack of popular support and trust
The trust in the judicial system among the general population is low. A large slump in the trust in the court system happened in 1998–2007, as the people did not see the court system as an impartial arbiter of the cases, which Krystyna Daniel connected to the general distrust of statutes and government organs, lengthy proceedings and media criticism (mostly about controversial court cases or irregularities in the judiciary).[123] A particular plunge in support for the courts occurred in 2012,[124] when numerous irregularities were found in the functioning of the courts in Gdańsk as they were investigating the insolvency of Amber Gold, a pyramid scheme company.[125][126][127][l]
Only 32% approved of the current state of the judiciary, compared with 41% of negative voices, according to a March 2021 poll made by CBOS. The support for the courts has been oscillating around 30% since around 2009, with relatively little variation across party preferences but with generally less support among the right-leaning electorate.[124] In December 2021, the same pollster found that 46% of people preferred to resolve cases informally by non-judicial means, which number steadily increased since the 2014 and approached values experienced in the communist Polish People's Republic, and that only 38% declared that the judiciary was better equipped to do that.[129] The 2021 European Union Rule of Law report notes that only 29% of the general population has a good opinion of the court system, but only 18% of companies surveyed approved of Polish judiciary, and the numbers were steadily decreasing.[130] Recent changes to the courts, introduced successively since 2015 by PiS, did not seem to improve the perception of them - according to a December 2021 poll for Rzeczpospolita, over 69% of people thought that they did not increase confidence in the courts.[131]
Other issues
Some of the Polish courts have seen signs of nepotism, e.g. favouritism during competition for judge positions[132][133][134] and in salaries.[135] These problems have also plagued the National Council of the Judiciary, which prompted the Supreme Court to annul some of its recommendations.[136] Another issue of concern is the usage of the so-called testimony-mining custody , whereby a suspect is held in repeatedly prolonged detention in order to be compelled either to confess or to testify against other defendants, a practice officially illegal nevertheless still undertaken under formal disguise of various pretexts such as safeguarding the undistorted course of a proceeding;[137] the Helsinki Foundation of Human Rights noted that an average pretrial detention lasted for more than a year and, in its opinion, was overused relative to the less invasive preventative measures such as bail and police supervision.[109] A lack of petititoner-friendly communications, excessive red tape[138] and the excessive reliance on the letter of the law (lex) rather than the law itself (ius) are also noted as problems within the Polish judiciary.[139][140] The Polish courts have also been severely impacted by the COVID-19 pandemic, in particular as related to the access to the justice system.[141] The pandemic forced the courts to increasingly digitise its so far underused and inconsistently applied computer systems aiding decisionmaking, documentation and hearings; however, many documents are still being processed on paper and sent by post.[142]
Rule of law concerns
When the Law and Justice (PiS) party took over the power in 2015, it expressed its intent of clearing the justice system of Communist legacy and root out corrupt judges from the judiciary.[143] It also promised to remedy long-standing problems of slowness and red tape, due to which the media favourable to the current government portrayed the system as out-of-touch and self-interested.[138] A series of late 2010s reforms to the Polish judiciary, however, has proved controversial.[144] They met in particular with the disapproval of the European Union authorities, which initiated Article 7 proceedings against a member state for the first time.[145] The rule-of-law crisis in Hungary and Poland served as a trigger for adopting the EU's conditionality mechanism, which may deny the receipt of EU budget funds if the rule of law deficiencies prevent a proper implementation of the EU budget, and led to a suspension of Next Generation EU funds allocated for Poland.[146] The European Parliament has repeatedly pressed the European Commission to act on the breaches of the independence of the judiciary, and even sued it in court for what it said was inadequate response to the violations.[147]
Capture of the Constitutional Tribunal
The Constitutional Tribunal (TK), like other courts with appointments made by political bodies, experienced some form of bias in rulings, but it was not much different from the situation in the analogical institutions in other countries.[148] Since 2015, however, the TK has been stuffed with appointees favourable to the currently ruling party, including former politicians of PiS or friends of its leaders,[149][150] leading scholars to see it as a captured judicial institution[151][152][153] subservient to the Law and Justice government.[154][155] Due to the irregularities in appointments to the Tribunal in 2015, the ECHR ruled that the Tribunal, when ruling with the so-called doubling judges (sędziowie-dublerzy) instead of those whose term started before the term of the 2015-2019 parliament was set to constitute, violated the right to a fair trial as it was an improperly constituted court.[156]
The Constitutional Tribunal then delivered rulings aiming to insulate the justice system from ECHR scrutiny, first by issuing a ruling arguing that the ECHR had no jurisdiction to control the appointment of its own justices by asserting it was not a court within the meaning of the European Convention on Human Rights[157] (described by Ewa Łętowska[158] and Wojciech Tumidalski[159] to be the Tribunal's "coming out") and then by expanding the ruling on the court system as a whole.[160] It also did the same with the treaties of the European Union by stating that the treaties are incompatible with the Polish Constitution insofar as they allowed the courts to question the appointments by partisan-controlled KRS or the President,[82][161] aiming to thwart effects of ECJ's unfavourable judgments about the Polish judiciary[162] and forcing it not to comply with ECJ's orders.[163] This ruling sparked massive protests and raised concerns about Polexit.[164][165] The European Commission has charged the Constitutional Tribunal with violations of EU law while issuing its verdicts.[166]
Undue influence on judges
The problem of undue influence of judges in Poland has existed for some time. A sting operation by Gazeta Polska Codziennie triggered a political scandal in 2012 through exposing that a judge of a court in Gdańsk aquiesced easily to procedural demands made in relation to a particular case during a phone call by a journalist pretending to be a senior officer of the Chancellery of the Prime Minister.[167] The judge, Ryszard Milewski, was disciplined for that violation and sent to a Białystok court.[168]
Since the reform of common courts and the Supreme Court started in 2017, the judges almost unanimously expressed concern about worsening judicial independence, fearing retribution for criticism of the new laws.[169] Some of the most vocal opponents of the changes to the judiciary were targeted by the state prosecution, and disciplinary proceedings were abused in an attempt to silence critics, who e.g. sent preliminary requests to the European Court of Justice asking to assess judicial independence.[170][171][172] There were also cases of judges being submitted to disciplinary action after issuing a ruling opposite to the party's interest or demands of the prosecutor in the particular case.[3][173][174][175][176] In addition to that, a change to the statutes regulating the courts (often called the "muzzle law") made it an offence to question the validity of appointments of judges by fellow judges, in essence those appointed by a partisan-controlled National Council of the Judiciary, even if there were legitimate concerns about them.[177][178] This statute was criticised by the Venice Commission for violating the judicial independence and severely limiting the judges' freedom of speech.[179] The 2021 rule of law report by the European Commission said that the mere prospect of being prosecuted in a judicial body having no guarantees of independence had created a chilling effect for judges.[130] Rzeczpospolita also reported that the catalogue of offences after which disciplinary proceedings are initiated broadens, some of which are not related to the functioning of the court, like speeding and driving under the influence.[132]
Partisan control of the National Council of the Judiciary
An overhaul of the National Council of the Judiciary happened in late 2017, when the law came into effect that granted the Sejm powers to appoint 15 members of the judiciary (ruled legal by the Constitutional Tribunal in 2019);[180] at the same time, the Tribunal ordered the judges on the Council to be appointed for a collective term. rather than individually, as has been the case earlier.[181][182] Both changes were very controversial. All judges that had served on the Council were dismissed on 6 March 2018 without regard to their terms[183] and substituted with judges favourable to PiS. The consensus of scholars is that a change to the term of some of the KRS's members ran afoul of the Constitution,[181][184][185] though Mateusz Radajewski wrote that the Tribunal left the lawmakers with no better choice.[182] The European Court of Human Rights, along with the scholars, criticised the Tribunal's decision in its ruling in March 2022 and ordered compensation for Jan Grzęda, a Supreme Administrative Court judge whose term was cut two years short.[185]
In September and October 2018, the Supreme Administrative Court ordered a halt on Council's appointments to the Supreme Court to three of the five chambers,[186] but the President ignored the NSA's order.[187] The top administrative court later annulled around a dozen recommendations for appointment of new judges of the Supreme Court due to concerns about the lack of independence of the Council.[188] The Venice Commission urged not to approve the politicisation of the KRS,[189] while numerous scholars,[184][190][191][192] the European Court of Justice (ECJ)[193] and the European Court of Human Rights (ECHR)[194] questioned the independence or the constitutionality and thus the validity of nominations made by the partisan-controlled KRS (sometimes called the neo-KRS). One of the most controversial changes was the creation of a disciplinary chamber of the Supreme Court, whose members were all nominated by the new iteration of the KRS, and which some have compared to the Star Chamber or to an extraordinary court (sąd wyjątkowy), which may not be created unless in times of war.[195] Due to the lack of impartiality, the National Council of the Judiciary was expelled from the European Network of Judiciary Councils.[196]
Given the doubts about the validity of the new KRS as well as other laws concerning the common courts and the judiciary, several courts have made preliminary requests to the ECJ about the overhaul of the judiciary or issued rulings aiming to resist the changes. The Supreme Court declared the two new chambers, the Disciplinary and that of Extraordinary Control and Public Affairs, illegal, and found the new KRS "systemically not independent of political interest".[197] While this was promptly overturned by the Constitutional Tribunal, arguing that European law was not above the Polish Constitution,[198] the consensus of scholars was that the Tribunal exceeded its competences as it could not assess the constitutionality of the Supreme Court's resolutions.[190] The EU top court ruled that the lowering the retirement age to 65 (thus removing about 40% of the Supreme Court members), with tying the prolongation of justices to the President's consent, was illegal in light of the European Union law.[199] The ECJ also delivered a judgment ordering the suspension of the Disciplinary Chamber, saying it has deep concern over this key element of the justice system overhaul.[200] After the court's ruling had been ignored for some time, the ECJ applied unprecedented penalties of €1 million per day for non-compliance with the ECJ's decision.[201]
In addition to that, several judges and lawyers sued in the ECHR to declare the Supreme Court chambers with the controlling majority being appointed by the new body incompatible with the European Convention of Human Rights, and thus invalidate its rulings. The Strasbourg court agreed, declaring the Disciplinary Chamber,[202] the Chamber of Extraordinary Control and Public Affairs[187] and the Civil Chamber[203] not to be independent and impartial tribunals established by law.
Arbitrary secondment of judges
The minister of justice, according to law, may second (delegować) a judge to a lower or, in some circumstances, to the higher courts and to the Ministry of Justice; the minister may also second a judge to administrative courts, the Chancellery of the President, to the Supreme Court or to an institution subordinate to the Ministry of Foreign Affairs upon the requests of the leaders of these agencies; however, the law does not require that the decisions of secondment, or the revocation thereof, have justifications.[14] This arrangement has been described as prone to abuse by some human rights groups and legal experts.[109] The European Court of Justice ruled that the system of purely arbitrary delegation of judges, where the minister of justice is at the same time the top prosecutor, violates European Union law;[204] the Polish Ombudsman also argued that the unlimited powers in issuing delegations ran afoul of several articles of the Constitution, including by infringing on the President's prerogative to appoint judges to the positions they decide.[205]
Repercussions in Poland and abroad
The judicial reforms have been met with fierce resistance from the judiciary, including the rank-and-file judges.[206] For example, the Polish Bar and its leadership, the Polish Bar Council , reject the validity of judgments by the suspended disciplinary chamber of the Supreme Court.[207] Numerous protests were started against the reforms.[208][209][210] They were also initiated abroad in front of Polish diplomatic institutions.[211]
The rule of law crisis has prompted several courts to temporarily cease honouring the European Arrest Warrants from Poland, including courts in the Netherlands,[212] Germany, Ireland, Slovakia and Spain.[213] However, the ECJ ruled that the courts may not do so unless there are reasonable doubts about the possibility of getting a fair trial in Poland.[214]
See also
Notes
This article incorporates text by the European Commission available under the CC BY 4.0 license.
- ^ There are many other legally established quasi-judicial bodies, e.g. judicial disciplinary panels of self-regulating professions, but they are not courts within the meaning of the Constitution. Only the judicial bodies derived from the Constitution may issue verdicts in the name of Poland.
- ^ Second-instance rulings of disciplinary panels for the remaining five self-regulating trades, namely bailiffs, architects, civil engineers, tax advisors and auditors, are not subject to cassation to the Supreme Court; they may only be appealed to the relevant appeal court
- ^ I.e. in cases when a public prosecutor or a justice of a common or military court has committed a serious crime, or has engaged in "political activity", or has undermined the legitimacy of the appointment of other justices. The latter two provisions, as they appear in the Polish judicial disciplinary panel law, proved to be extremely controversial, and has been dubbed by the opponents of the legislation as a "muzzle law".
- ^ a 2/3 supermajoroty of the Sejm was empowered to reject them before that date
- ^ Technically not considered employees of the court but serve on it
- ^ The statute says that lay judges must get "2.64% of the basic salary of the judge", which is 2.05 times the average salary.
- ^ The First President of the Supreme Court is an ex officio President of the State Tribunal; see the column for the Supreme Court for requisite qualifications
- ^ a b May be continued to 70 years on request of the judge who is about to get 65 if the National Council of the Judiciary approves their request to continue serving on the bench
- ^ Does not apply to those who have worked in the voivodeship administrative court for at least three years, effectively setting the lowermost age at 38 for these judges
- ^ Candidates for military judges are enlisted in active military service and must pass an officer exam to begin judicial duties
- ^ The President of Poland may exceptionally request to admit a person with less experience to the bench
- ^ The court case about the company itself is still pending, despite being filed the same year when the company went bust. The district court issued its verdict in 2019; the appeal court is now dealing with the case that has 886 volumes and more than 15,000 addenda.[128]
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In Poland, the governing Law and Justice (PiS) party has been waging a war against the judiciary in an attempt to convert it into a pliant political tool. After devoting its initial years in office to an illegal takeover of the country's constitutional court and the council responsible for judicial appointments, the PiS government started persecuting individual judges in 2019. By early 2020, judges who criticized the government's overhaul or simply applied European Union (EU) law correctly were subjected to disciplinary action. Such an attack on a core tenet of democracy—that there are legal limits on a government's power, enforced by independent courts—would have been unimaginable in Europe before PiS made it a reality.
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External links
- Portal of court cases by the Ministry of Justice and cases decided by the Constitutional Tribunal in Polish (selected judgments in English)
- The 2022 EU Justice Scoreboard, the Polish country profile on the Council of Europe's graphics and on the World Justice Project for international comparisons (in English)
- Rule of law reports by the European Commission and the Stefan Batory Foundation (in English)
- A report by the Ministry of Justice (2019) about the efficiency of Polish courts (in Polish)
- ruleoflaw.pl - Documentation on the rule of law in Poland in English
- Verfassungsblog - occasional information about the legal events in Poland in English