Regulations on promotion opportunities for common court judges K 7/10
The imprecise regulation of the professional situation of judges is inconsistent with the Constitution.
At the hearing on 8 May 2012 at noon, the Constitutional Tribunal considered an application submitted by the President of the Republic of Poland with regard to regulations on promotion opportunities for common court judges.
The Constitutional Tribunal adjudicated that:
- Article 4(1) of the Act of 19 December 2008 amending the Law on the Organisational Structure of Common Courts and certain other acts, insofar as it provides that the judges referred to in that provision shall become respectively district court judges and circuit court judges, as these are the courts where they perform their duties, is not inconsistent with Article 2, Article 178(2), Article 179 and Article 180(2) of the Constitution.
- Article 4(2) of the above Act, insofar as it provides that the public prosecutors referred to in that provision shall become respectively the public prosecutors of district prosecutors' offices and the public prosecutors of circuit prosecutors' offices, is not inconsistent with Article 2 of the Constitution.
- Article 4(3) of the above Act is inconsistent with the principle of sufficient specificity, derived from Article 2 of the Constitution.
- Article 5 of the above Act is consistent with Article 2 of the Constitution.
The Tribunal discontinued the proceedings as to the reminder.
In the substantiation of the application, the President indicated that the challenged Act undermined the prestige of judges by depriving them ex lege of their positions as judges, for which they had been appointed. On the one hand, such action results in undermining the status of judges considerably; on the other hand, it leads to the complete depreciation of the acts of appointment, and thus infringes Article 179 of the Constitution. At the same time, the applicant argued that the challenged Act breached the requirement that judges should not be recalled, suspended or removed, unless by virtue of a court judgment and only in those instances prescribed in statute, as set out in Article 180(2) of the Constitution. In the view of the President, the Act also infringed rights acquired by judges and public prosecutors, which arose from being given the so-called horizontal promotion.
Also, the President challenged (in the context of the principle of specificity) the transitional provision (Article 4(3) of the Act of 2008), which regulated the situation of judges and public prosecutors whose applications for promotion had not been considered before the day of entry into force of the Act of 2008. In the view of the applicant, after 22 January 2009 (i.e. after the entry into force of the Act of 2008), the act of appointment would, in fact, become an empty act.
The last allegation raised by the President concerned the infringement of the requirement to maintain adequate vacatio legis (Article 2 of the Constitution) by Article 5 of the Act of 2008. In the President's view, the 14-day period of vacatio legis, in the case of a statute affecting the professional status of judges and public prosecutors, was too short.
The Constitutional Tribunal did not agree with all the allegations put forward by applicant. Above all, the Tribunal drew attention to the fact that challenged Article 4(1) and (2) of the Act of 2008 regulated two issues. The said Article actually abolished the institution of the so-called horizontal promotion for judges and public prosecutors. It introduced a rule in accordance with which the indicated judges and prosecutors, despite a change of position, retained the right to the remuneration which they had acquired on the basis of the Act of 2007. The assessment of constitutionality concerning Article 4(1) and (2) of the Act of 2008 only referred to the first issue. As to the remainder, the proceedings were discontinued on the grounds that Article 4(1) and Article 4(2), insofar as they regulated the right to remuneration of the judges and public prosecutors who had been promoted in that way, had ceased to have effect.
With regard to the applicant's allegation, the Constitutional Tribunal stated that Article 4(1) of the Act of 2008, within the scope specified in the operative part of the judgment, was not inconsistent with Article 2, Article 178(2) and Article 180(2) of the Constitution.
The Tribunal examined the construct of the horizontal promotion of judges in the light of Article 179 and Article 180 of the Constitution. The conducted analysis led to the conclusion that the act of appointment incorporated into the construct of horizontal promotion (provided for in the Act of 2007) was not tantamount to the category of appointment within the meaning of the provisions of the Constitution. The legislator used a constitutional term here, but departed completely from the constitutional meaning of the mechanism of appointment; the said meaning implies appointing judges for an indefinite period by the President of the Republic on the motion of the National Council of Judiciary, and delineating the scope of their appointment. The consequences of being given horizontal promotion were merely the change of title and a rise in the remuneration of a judge that was promoted in that way as well as a possibility of receiving higher remuneration rates in the future. With regard to other aspects affecting the status of judges, such as changing the place where they performed their duties, within the meaning of the Act of 27 July 2001 - the Law on the Organisational Structure of Common Courts, changing the scope of duties or the possibility of adjudicating in the court of higher instance, the fact of being given horizontal promotion was insignificant. The Tribunal also drew attention to the fact that the National Council of the Judiciary of Poland had been deprived of the possibility of submitting an application for horizontal promotion. The assertion that, as a result of horizontal promotion, a given judge was appointed within the meaning of the Constitution, would be incompatible with the fulfilment of the systemic role of the National Council of the Judiciary.
Also, in the view of the Tribunal, the elimination of horizontal promotion would not entail changing a post within the meaning of Article 180 of the Constitution. This peculiar "degradation" of judges appointed in that manner meant, in particular, the loss of the title they had previously been awarded; however, it did not lead to a change in the scope of duties or a change of the place where they performed their duties. The Constitutional Tribunal indicated that the institution of horizontal promotion, despite the requirement set out in Article 178(2) of the Constitution, resulted in partial inconsistency between the amount of remuneration awarded to judges and the scope of their duties.
In the light of the conclusion that horizontal promotion was not equivalent to the construct of appointment set out in the Constitution, the Tribunal stated that the higher-level norms for the review indicated by the applicant were not adequate for the assessment of Article 4(1) of the Act of 2008.
With reference to the allegation that the principle of acquired rights had been infringed with regard to public prosecutors (Article 4(2) of the Act of 2008), the applicant did not present any other additional arguments which could justify that allegation. Presenting arguments based exclusively on the constitutional regulation of the status of judges with regard to the systemic position of public prosecutors was not permissible. It seemed that the applicant completely disregarded the fact that both the organisation of public prosecutors' offices as well as the status of public prosecutors fell outside the scope of the Constitution. By contrast, that circumstance justified the legislator's greater freedom in that regard, than in the case of the regulation of the status of judges. The Constitutional Tribunal stated that Article 4(2) of the Act of 2008 was not inconsistent with Article 2 of the Constitution.
However, the Constitutional Tribunal agreed with the President as regards the unclear character of the regulation provided for in Article 4(3) of the Act of 2008. The Tribunal recognised the difficulties related to the interpretation of Article 4(3) of the Act of 2008. Both linguistic and functional interpretations of the transitional provision led to absurd results, from the point of view of logic.
Doubts that had arisen in the context of the cited norm, in practice, affected the legal situation of judges, who were unable to predict the consequences of the procedure introduced with regard to them. Thus, Article 4(3) of the Act of 2008 infringed the principle of sufficient specificity (Article 2 of the Constitution).
In the view of the Constitutional Tribunal, the allegation raised by the President as regards failure to maintain adequate vacatio legis was not valid for consideration. The adoption of a longer period than 14 days by the legislator, after which the Act was to enter into force, was not necessary due to the limited effects of the Act of 2008, which abolished horizontal promotion. Article 5 of the Act of 2008 was declared to be consistent with Article 2 of the Constitution.
The hearing was presided over by Judge Andrzej Wróbel, and the Judge Rapporteur was Judge Piotr Tuleja.
The judgment is final and its operative part shall be published in the Journal of Laws.