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Biuletyn Informacji Publicznej

The Act on the Organisational Structure of Common Courts K 31/12

At the hearings on 30 October and 7 November 2013, the Constitutional Tribunal (full bench) considered an application, submitted by the National Council of the Judiciary of Poland, concerning the Act on the Organisational Structure of Common Courts. In its judgment of 7 November 2013, the Constitutional Tribunal adjudicated that:
I. 1.The Act of 18 August 2011 amending the Act on the Organisational Structure of Common Courts and certain other acts was consistent with:
a) Article 2 in conjunction with Article 7 and Article 119(1) of the Constitution,
b) Article 2 in conjunction with Article 7 and Article 186(1) of the Constitution; 
2. Article 9 and Article 9a of the Act of 27 July 2001 ‑ the Law on the Organisational Structure of Common Courts were consistent with Article 10(1) and Article 173 of the Constitution;
3. Article 21(3) of the Act referred to in point 2, insofar as it did not provide for the possibility that the president of a given court would give orders to the director of the said court as regards powers set out in Article 31a(1)(1) and (3) of the said Act, was consistent with Article 173 of the Constitution as well as was not inconsistent with Article 10(1) of the Constitution.
4. Article 22(1) of the Act referred to in point 2, insofar as it excluded matters falling within the scope of activity assigned to the director of a given court from the scope of competence of the president of the court as regards coordinating the work of the court and representing the court, was consistent with Article 173 of the Constitution as well as was not inconsistent with Article 10(1) of the Constitution;
5. Article 31a(1)(1) of the Act referred to in point 2 was consistent with Article 173 of the Constitution as well as was not inconsistent with Article 10(1) of the Constitution.
6. Article 31a(1)(3) of the Act referred to in point 2 was consistent with Article 173 of the Constitution as well as was not inconsistent with Article 10(1) of the Constitution.
7. Article 32b(1) of the Act referred to in point 2, insofar as it did not specify effects for the Minister of Justice brought about by the general assembly of judges representing appellate courts which in its resolution presented negative evaluation of a report submitted by the director of the court, was inconsistent with Article 10(1) and Article 173 of the Constitution.
8. Article 32b(3) of the Act referred to in point 2, insofar as it did not specify the effects of an application of the president of the court lodged with the Minister of Justice as regards dismissing the director of the court, was inconsistent with Article 10(1) and Article 173 of the Constitution.
9. Article 32c(1) and (2) of the Act referred to in point 2, insofar as they did not provide for the president of the court to be able to affect the amount of remuneration granted to the director of the court, were consistentwith Article 10(1) of the Constitution as well as were not inconsistent with Article 173 of the Constitution.
10. Article 37g(5) of the Act referred to in point 2, due to the fact that it did not provide for the possibility of raising reservations by the president or vice-president of the court with regard to written comments presented by the Minister of Justice, was inconsistent with Article 10(1) and Article 173 of the Constitution.
11. Article 37h(2) of the Act referred to in point 2, due to the fact that it did not provide for a possibility of raising reservations by the president of a court of appeal with regard to refusal to accept the annual report on the activity of appellate courts by the Minister of Justice, within the scope of tasks assigned to the president of the court, was inconsistent with Article 10(1) and Article 173 of the Constitution.
12. Article 106c of the Act referred to in point 2 was consistent with Article 2, Article 10(1) and Article 178(1) of the Constitution.
II. The provisions enumerated in part I in points 7 and 8 as well as in points 10 and 11, within the scope indicated therein, would cease to have effect after the lapse of eighteen months from the date of the publication of the judgment in the Journal of Laws of the Republic of Poland. As to the remainder, the Tribunal discontinued the proceedings. Dissenting opinions to the judgment were submitted by the following judges of the Constitutional Tribunal: Zbigniew Cieślak (to points 1a, 7, 8, 10, and 11), Maria Gintowt-Jankowicz (to points 7 and 8), Wojciech Hermeliński (to part I points 1, 3, 6,and 9 as well as to part II), Teresa Liszcz (to points 1a and 6), Piotr Tuleja (to points 1a, 6, and 12), Sławomira Wronkowska-Jaśkiewicz (to point 1a), Andrzej Wróbel (to points 2-6), and Marek Zubik (to point 1). Making reference to the allegations concerning the procedure for the enactment of the amending Act, the Constitutional Tribunal indicated that the content of Article 37 of the Rules of Procedure of the Sejm had not been determined by constitutional norms, and in particular it might not be derived from Article 119(1) of the Constitution. Although holding the first reading of the bill at the sitting of the committee, and not at the plenary sitting of the Sejm, had been an infringement of Article 37(2) of the Rules of Procedure of the Sejm, that fact had no negative impact on the course of legislative process. In particular, it had not constituted an obstacle for the participation of Sejm Deputies, including those who had not been members of the relevant committee, in the statutory process. The exercise of advisory powers vested in the National Council of the Judiciary consisted, in the course of legislative work in the Parliament, in taking a stance with regard to bills concerning the judicial branch of government and judges. In the view of the Tribunal, in the case of the exercise of the said powers, the substantive criterion should be decisive, and not the formal one. There were no grounds to formulate a general requirement that National Council of the Judiciary should issue an opinion on the final version of the bill before it was referred to the Sejm if previous versions of the bill had been assessed and the subsequent changes had not been fundamental in character and had not outdated the content of the opinion. When analysing circumstances of work on the bill amending the Act, the Tribunal stated that there had been no restriction on that National Council of the Judiciary as regards the possibility of fulfilling its basic constitutional function. Therefore, there were no grounds to assume that the amending bill had been enacted in accordance with the procedure that had not met the constitutional requirements. The Tribunal indicated that the judiciary might be understood in a functional and organisational sense. The judiciary in a functional sense was the administration of justice, i.e. resolving disputes in a binding way, as well as the fulfilment of other tasks within the scope of legal protection. In an organisational sense, the judiciary constituted a system of the organs of the state - i.e. courts. The Constitutional Tribunal underlined that the administrative activity of courts was subservient and subordinate to the main activity of courts. Therefore, the organisation of judicial administration and the way of its functioning were to support the proper administration of justice and the proper provision of legal protection by courts, and the ability to achieve such a state was one of the basic criteria of assessment of such administration. Making reference to the allegation raised by the National Council of the Judiciary as regards granting the Minister of Justice supervision over the administrative activity of courts, the Tribunal pointed out that it was the legislator’s choice whether the said supervision was to be organised within the scope of the judiciary or whether supervisory powers were to be assigned to another branch of government, in that case ‑ the executive branch. The Tribunal drew attention to the fact that, in the previous jurisprudence, the supervision of the Minister of Justice over the administrative activity of courts, including its direct links with the judicial activity of courts, had been deemed constitutionally admissible. The Tribunal held the opinion that the analysis of the challenged provisions did not confirm the allegation raised by the National Council of the Judiciary that the scope of powers granted to the Minister of Justice had been extended as regards supervising the administrative activity of courts, and that one could not assume that the said activity of courts fell within the scope of government administration. Also, the said analysis gave no grounds to state that supervision provided by the Minister of Justice had interfered with the realm of the exercise of judicial functions by courts within the scope of which judges enjoyed independence. The Constitutional Tribunal indicated that the introduction of the position of a director in the organisational structure of courts manifested the implementation of the managerial approach to the coordination of the activity of courts and was aimed at relieving the president of a given court of certain administrative duties. The Tribunal stressed that the director might be regarded as a judicial authority only in an organisational sense. However, the director was not an element of the judicial branch within the functional sense, for s/he did not take part in the administration of justice nor in the exercise of other tasks from the scope of legal protection. The analysis of the scope of powers granted by the legislator to the directors of courts indicated that although the scope was broad, it did not comprise actions related to the fulfilment of basic functions set out in Article 1(2) and (3) of the Act on the Organisational Structure of Common Courts. Moreover, the director of a given court might not interfere with the administrative activity of the court that was directly linked with the performance of tasks falling within the scope of the administration of justice, over which the internal supervision and management were exercised by the president of the court. Tasks performed by the directors of courts should be included within the realm of administrative activity of courts which was aimed at guaranteeing the proper technical and organisational as well as property conditions as regards the functioning of the court. Thus, it might not be deemed that the provisions challenged by the National Council of the Judiciary infringed the principle of autonomy and independence of courts. The Constitutional Tribunal addressed the allegation concerning the powers of the director of the court with regard to the administrative staff of the court, and in particular the staff of the secretariats of court divisions. The Constitutional Tribunal concluded that the supervision of the director of the court with regard to those employees did not comprise tasks referred to in Article 8(2) of the Act on the Organisational Structure of Common Courts. With reference to the staff of court secretariats, the managerial and supervisory powers were granted on the basis of a statute or executive provisions to the president of the court, the head of a court division and judges. This meant that the powers of the director comprised not only actions that were outside the scope of administrative activity of the court that was directly linked with the administration of justice and legal protection, which was consistent with Article 173 of the Constitution. Making reference to the allegations concerning Article 32b(1) and (3) of the Act on the Organisational Structure of Common Courts, the Tribunal indicated that since the administrative activity of the court was subsidiary and subservient in relation to the main function of the court then judicial authorities composed of judges, i.e. the general assembly of judges representing appellate courts, and the president of the court, should have an impact on dismissing the director of the court. In the view of the Tribunal, the solution provided for in the challenged provisions that the supervision of judges’ self-government and the president of the court over the proper performance of the tasks assigned to the director of the court was not sufficient, in the context of the discretion of the Minister of Justice. Consequently, the indicated provisions infringed the principle of the division of powers as well as the independence and autonomy of the judiciary. By contrast, with regard to the allegation that Article 32c(1) and (2) of the Act on the Organisational Structure of Common Courts had been infringed. The Tribunal indicated that the powers of the Minister of Justice to set the amount of remuneration granted to the director of the court were made objective on the basis of a regulation issued upon consulting the National Council of the Judiciary of Poland. Consequently, one might not state that the challenged provisions infringed the principle of division of powers. However, determining the remuneration of the directors of courts who were supervised by the Minister of Justice had no impact on the principle of autonomy and independence of courts that had been expressed in Article 173 of the Constitution, as the powers of the Minister pertained to the realm which did not include the said autonomy and independence. The Tribunal stated that the solutions included in Article 37g(5) and Article 37h(2) of the Act on the Organisational Structure of Common Courts did not guarantee that the judiciary, which included the president of the court, would have the possibility of protecting its position as well as would not provide instruments that guarantee balance with respect to the influence of the judiciary. The said procedural guarantees were significant due to the position and authority assigned to the office of the president of the court, with regard to which supervisory measures taken by the Minister of Justice were not irrelevant. Such measures were also of significance in relation to the powers of the Minister of Justice to dismiss the president or vice-president of the court during the term of his/her office, due to the glaring failure to fulfil professional duties. With regard to allegations addressed with regard to Article 106c of the Act on the Organisational Structure of Common Courts, the Tribunal indicated that the indicated provision did not infringe the principle of specificity of legal provisions, as on the basis of the provisions of the said Act it was possible to determine the subject and purpose of an individual professional development plan for a given judge. In the view of the Tribunal, both the assessment of the work of a judge, as well as the said plan drafted on the basis thereof, may concern the content of determination issued by the judge as part of the exercise of his/her juridical tasks or actions undertaken in the course of examining the case. Moreover, the evaluation of the work of a given judge as well as the draft of a individual professional development plan for the judge had been assigned by persons who were judges. The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat. The judgment is final and its operative part shall be published in the Journal of Laws.