Strasbourg, 7 February 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Poland
questionnaire for 2007 Opinion concerning the Councils for the Judiciary
Part I - General context concerning the judiciary
1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
1: A direct interference is not possible. Only through law-making.
2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)
2: It is not possible
3. Is there possible interference of the executive power concerning judges?
3: A direct interference is restricted. The Law on the Structure of Courts of Law as well as the regulations concerning judges’ training (judicial application) include a series of powers for the Ministry of Justice.
4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
§ in management of courts? (if yes, please specify which authority from the executive power)
4. Interference of the executive power:
- Ministry of Justice, after taking an opinion from the Council of Judiciary, creates and dissolves courts.
- Ministry of Justice appoints presidents and vice-presidents of courts, after taking an opinion from adequate judicial organs.
- Ministry of Justice can call off a president or vice-president of court during his term of office. Such a calling off follows after taking an opinion from the Council of Judiciary. A negative opinion of the Council is binding for the Ministry.
- Ministry of Justice appoints and calls off directors and financial chiefs of the courts
- Ministry of Justice supervises the administrative activity of the courts.
- Ministry of Justice, after taking an opinion from the Council of the Judiciary, passes the legal acts determining the organisation and order of functioning of the courts.
- Ministry of Justice annually establishes a number of free judicial posts for particular court and announces of in an Office Journal of the Ministry, in case of vacating of the post, not later than two months after vacating of the post.
- For each vacant judicial post, a candidate can be announced to the Council of Judiciary by the Ministry of Justice.
- Ministry of Justice may demand undertaking disciplinary proceedings against a judge and has a right to submit an appeal.
- Ministry of Justice appoints and may call off assistant judges at notice – with a consent of court’s judicial board.
- Ministry of Justice exercises a supervision on the merits of judicial execution.
- Training and professional perfecting of judges, judges’ assistants, referees as well as court and public prosecutor’s office staff is conducted by the National Training Centre for the Staff of Common Courts and Public Prosecutor's Offices, which is a unit liable to the Ministry of Justice.
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?
5. Judicial staff is working under the authority of the president of the court.
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
§ to distribute the work between judges?
§ to act as a disciplinary authority vis-à-vis judges?
§ to intervene in the career of judges?
§ other? If yes, please specify.
6. The president of the court directs the court and represents it in external relations, administers the court, he/she is an official superior to other judges of the court; entrusts the judges with functions and dispenses them from functions – after taking an opinion from the judicial board of the court.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system?
7. There is.
8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
8. Krajowa Rada Sądownictwa ( the National Council of Judiciary
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.
9. Legal basis – the Constitution and the Law of 27 July of 2001 on the National Council of Judiciary.
10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)
10. A project of setting up the Council originated as a result of political agreement concluded during the “Round Table” debates and it assumed setting up the constitutional organ consisted of representatives of all three powers – legislative, executive and judicial. Political transformation, opened in 1989, brought a new conception of understanding the role and position of the judiciary in a democratic state. The Law of 27 July of 1989 on the National Council of Judiciary stated that the Council guards independence of judges and the judiciary as such. At present, the Law of 27 July of 2001 on the National Council of Judiciary is in force
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members?
§ Qualification of the members?
§ For the “judges” members, do they need specific qualifications or experiences?
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)
11. The Council consists of 25 members.
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?
12. The Council members are: The first President of the Supreme Court, The President of the Supreme Administrative Court, a person appointed by the President of the Republic of Poland, the Minister of Justice, 4 members elected by the Seym from amongst its Deputies and 2 members elected by the Senate from amongst its Senators; 10 judges - the representatives of common courts (elected by The General Meeting of the Judges of Common Courts, 2 judges of the Supreme Court – elected by The General Meeting of the Judges of the Supreme Court; 2 judges of the administrative courts, elected by The General Meeting of the Judges of the Supreme Administrative Court, and one judge of a military tribunal, elected by the meeting of the Judges of Military Tribunals. The tenure of the members of the Council elected by the Seym and Senate expires within three months following the expiry of the Seym and Senate’s term of office at the latest.
13. How is appointed the President and/or Vice-President of the Council?
13. The President and two Vice-presidents are elected by the Council, during the first sitting.
14. What is the term of office for a member of the Council?
14. A general term of office for a member is 4 years. The tenure of the members of the Council elected by the Seym and Senate expires within three months following the expiry of the Seym and Senate’s term of office at the latest. The person appointed by the President of the Republic of Poland fulfils his functions for indefinite duration and may be dismissed at any time. The mandate of this person expires within three months from the expiry of the President’s tenure at the latest.
15. May a member be removed from office against his/her will and, if so, under what circumstances?
15. Members of the Council may be dismissed during the term of office by the body which elected them.
Part IV - Resources
16. Where does the Council receive its financial resources?
17. Council receives its financial resources from the budget.
18. Does the Council have its own staff?
17. Yes, it does. Since 01.01.2007 r. the Council received a financial independence and the Office was established. The Office is currently being organised.
19. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify
20. What is the staff number?
19. (see p. 17).
21. What are the qualifications of the staff?
22. Must the staff be composed, albeit only in part, by judges?
23. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.
22. The main objective of the Office is to serve with help in execution of Council’s tasks.
Part V - Tasks
24. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):
§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
§ in area of initial and/or continuous training for judges and/or courts’ staff1?
§ in area of courts’ performance in general (assessment of quality of court performance2, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements3)?
§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
23. The Council shall perform the activities provided for by the acts, in particular, it shall:
1) adopt resolutions on applying to the Constitutional Tribunal for examining the compliance of normative acts governing the independence of courts of law and judges with the Constitution of the Republic of Poland,
2) consider and assess candidates for the offices of judges of the Supreme Court, Supreme Administrative Court, common courts, voivodship administrative courts and military tribunals,
3) present the President of the Republic of Poland with the petitions for the appointment of the judges of the Supreme Court, the Supreme Administrative Court, common courts, voivodship administrative courts and military tribunals,
4) consider the petitions for the retirement of a judge, consent to the further tenure of the judge who turned 65,
5) consider the applications filed by the retired judges for the reappointment for the office of a judge,
6) appoint a disciplinary ombudsman of the judges of common courts,
7) express its opinion on the appointment or dismissal of the president or deputy president of the common court or military tribunal,
8) resolve upon the rules of professional ethics binding judges and monitor the compliance therewith.
2. Moreover, the Council shall:
1) express its opinion about active judges,
2) determine the criteria for assessing the candidates for the offices of a judge made by the presidents of circuit and appellate courts,
3) express its opinion about draft legal acts governing remuneration payable to judges and present the related petitions,
4) express its opinion about draft normative acts regarding the judiciary and judges,
5) express its opinion about the training of trainee judges, the scope of and method for conducting a bar exam and determining the results thereof,
6) express its opinion about the assessment rules of the work performed by assistant judges,
7) express its standpoint on the matters regarding courts of law and judges placed on the Council’s agenda by the President of the Republic of Poland, other official authorities and judges’ self-government,
8) monitor the compliance with the rules of professional ethics by judges.
25. Does the Council have investigation powers? If yes, please specify
26. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe
25. From courts, from Ministry of Justice
27. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ instructions to the courts?
26. opinions and recommendations
28. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
29. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
30. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
29. The Council has resolved a collection of principles of judges' professional ethics.
31. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?
30. The Council has its own spokesperson.
32. Are decisions of the Council published and available to all?
31. Decisions of the Council are published and available in internet (www.krs.pl ).
Part VI – Assessment of the self-governance and the independence of the judiciary
33. To what extent is the work of the Council influenced by:
§ the executive power?
§ the legislative power?
§ The executive power has an influence on the work of the Council through initiating drafts of legal acts (incl. acts falling into the sphere of Council’s activity).
§ The legislative power influence – through modifying legal acts.
34. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
33. The Council is independent from other States entities.
35. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
34.The Council is a body responsible for independence of the judges and self-dependence of the courts. Ministry of Justice exercises an administrative supervision over the courts and the financial management of the courts.
36. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
35. There are no direct connections and relationships.
37. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
36.The Council is the only organ competent towards all the judges, including the judges of the Supreme Court.
38. Who decides which the priorities of actions of the Council are?
37. It results from the provisions of the Constitution and the Law on the National Council of Judiciary as well as resolutions adopted by the Council.
39. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
38. In cases provided by the law, it is possible.
40. Which instruments or practices are used by the Council:
§ to guard the independence of judges?
§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
§ to intervene in case of attacks against its own interests4?
§ to improve the working methods of judges?
39. The Council: adopts resolutions, positions, expresses opinions about legal acts regarding the judiciary and judges; the Council can apply to the Constitutional Tribunal for examining the compliance of normative acts governing the independence of courts of law and judges with the Constitution; conducts media activities (press conferences), resolves upon the evaluation criteria of the work performed by judges, resolves a Collection of Principles of Judges' Professional Ethics and monitors the compliance therewith.
Part VII – Future trends of Councils for the Judiciary
41. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
40. The powers of the Ministry of Justice are too broad.
42. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
43. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
42. Good contacts, interchange of experiences.
44. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?
43. The membership in ENCJ strengthens the position of the Council in its activities, gives a possibility of a wider perspective and interchange of experiences.
45. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Part VIII – Countries without a Council of the Judiciary
46. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?
47. How and by whom are judges appointed and promoted?
48. Does any authority (body) independent5 of the government and the administration take part in the appointment and promotion process:
49. If yes, how is this authority composed? Is a certain share of judges fixed?
50. How are the members selected?
51. what are the detailed competences of the authority with respect to the appointment and promotion of judges?
52. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
53. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
1 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".
- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”
- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”
- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “
5 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).