The Act on the Organisational Structure of Common Courts K 27/12
At the hearing on 21 March 2013 at 9 a.m., the Constitutional Tribunal (full bench) considered joined applications, submitted by a group of Sejm Deputies and the National Council of the Judiciary, with regard to the Act on the Organisational Structure of Common Courts.
In the judgment of 27 March 2013, the Constitutional Tribunal adjudicated that Article 20(1) of the Act of 27 July 2001 - the Law on the Organisational Structure of Common Courts was consistent with Article 176(2) in conjunction with Article 10(1), Article 45(1) in conjunction with Article 31(3) and Article 180(5) as well as with Article 92(1) of the Constitution. Article 3(3) of the Act of 21 August 1997 - the Law on the Organisational Structure of Military Courts was inconsistent with Article 92(1) of the Constitution as well as was consistent with Article 176(2) in conjunction with Article 10(1), Article 45(1) in conjunction with Article 31(3) and Article 180(5) of the Constitution. Article 3(3) of the Act of 21 August 1997 would cease to have effect after the lapse of 12 months from the date of the publication of the judgment in the Journal of Laws. As to the remainder, the Tribunal discontinued the proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Wojciech Hermeliński, Teresa Liszcz, Andrzej Wróbel and Marek Zubik.
The Tribunal examined two constitutional issues, namely: whether a competent minister might, by regulation, establish and dissolve courts, and determine their locations and the scope of jurisdiction; as well as whether authorisation for issuing the said regulation provided for in the challenged provisions had been appropriately constructed by the legislator. By contrast, the subject of the review did not solely comprise regulations on establishing and dissolving courts as well as determining their locations and the scope of jurisdiction.
The applicants specified the subject of the review in different ways. The group of Sejm Deputies requested the Tribunal to examine the constitutionality of Article 1(13) of the Act of 18 August 2011 amending the Act on the Organisational Structure of Common Courts as well as certain other acts, insofar as it amended Article 20(1) of the Act on the Organisational Structure of Common Courts. By contrast, the National Council of Judiciary challenged Article 20(1) of the last-mentioned Act as amended by Article 1(13) of the amending Act. Since in both applications, the allegations concerned the new content of Article 20(1) of the Act on the Organisational Structure of Common Courts, the Tribunal assumed that the said provision constituted the subject of the review. The said provision authorises the Minister of Justice to establish and dissolve common courts as well as to determine their locations and the scope of jurisdiction. The other subject of the review, arising from the application submitted by the National Council of the Judiciary, was Article 3(3) of the Act on the Organisational Structure of Military Courts. It contains analogous authorisation for the Minister of National Defence to establish and dissolve military courts as well as to determine their locations and the scope of jurisdiction.
The review of the constitutionality of the two challenged provisions was conducted in the light of Article 92(1) of the Constitution as well as Article 176(2) in conjunction with Article 10(1), Article 45(1) in conjunction with Article 31(3) as well as Article 180(5) of the Constitution. With regard to the other provisions indicated as other higher-level norms for the review, the proceedings were discontinued, on the grounds that issuing a ruling was inadmissible. In particular, this concerned Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It had been suggested as a higher-level norm for the review by the National Council of Judiciary, which - pursuant to Article 186(2) of the Constitution - might only indicate the provisions of the Constitution as higher-level norms for the review. As regards two other higher-level norms for the review, i.e. Article 15(2) as well as Article 180(1) and (2) of the Constitution, the applicants failed to fulfil the obligation to justify the allegation of unconstitutionality.
The basic higher-level norm for the review was Article 176(2) of the Constitution. The main allegation concerned the infringement of the exclusiveness of statutes as regards specifying the organisational structure and territorial jurisdiction of courts. Other allegations were formulated with regard to that main allegation, hence the examination thereof was so crucial in the case under examination.
Article 176(2) of the Constitution authorises the legislator to specify the organisational structure of courts, their scope of jurisdiction as well as proceedings conducted before courts. It follows from that provision that, at the statutory level, all elements of the said organisational structure, jurisdiction and court procedure must be specified. However, it does not rule out a possibility that the legislator may delegate particular matters to be specified by way of a regulation.
In order to determine whether establishing and dissolving courts might be regarded as specifying and changing the organisational structure of courts required providing a definition of the term ‘the organisational structure of courts’, which is used in Article 176(2) of the Constitution. An analysis of the content of that provision as well as other constitutional provisions pertaining to the issue of the organisational structure of courts allowed the Tribunal to reconstruct elements defining the organisational structure of courts. The first element is the structure of courts which consists of various categories of courts within the constitutionally specified types of courts. The second element specifying the organisational structure of courts is the internal structure of courts belonging to a certain category. The third one comprises relations between particular instances and within the scope of judicial supervision that exists between various categories of courts. The Tribunal concluded that establishing and dissolving courts was not an element of the organisational structure of courts understood that way.
Provided for in Article 176(2) of the Constitution, authorisation to specify the organisational structure of courts by statute has been implemented inter alia by the following statutes: the Act on the Organisational Structure of Common Courts and the Act on the Organisational Structure of Military Courts. Both statutes indicate different categories of common and military courts. The statutes have also regulated the internal structure of courts, including the organs of the judiciary functioning therein, their powers and the terms of appointing and recalling them. Moreover, the Act on the Organisational Structure of Common Courts has also introduced a rule that the structure of common courts is related to the territorial division of Poland into communes (Pl. gmina), as well as has specified divisions in particular courts. Both statutes have authorised the ministers to establish and dissolve particular courts.
When exercising that power, both ministers are bound by the categories of courts that exist within the framework of common courts and military courts, as well as by relations between particular judicial instances and within the scope of judicial supervision that takes place between them. Indeed, the issues have been regulated thoroughly in the above-mentioned Acts. Establishing and dissolving particular courts by a minister, and thus a change in the number of courts within a given category of courts does not constitute a change of the statutorily specified organisational structure of courts. Since establishing and dissolving courts do not constitute a change in the organisational structure of courts within the meaning of Article 176(2) of the Constitution, and hence carrying out those actions does not need to be regulated by statute, then those actions may be taken by ministers on the basis of a regulation issued in accordance with correctly constructed statutory authorisation.
Establishing and dissolving particular courts regarded as separate organisational units within the judicial structure fall within the scope of the actions of the so-called organisational authority within the scope of the judiciary. They fall within the scope of the powers of the executive branch. The adoption of a different assumption would burden the legislator with the obligation to establish each court in respect of its internal organisation, location and staff, as well as with the need to make changes in that regard by way of an amending statute. For these reasons, the Tribunal stated that Article 20(1) of the Act on the Organisational Structure of Common Courts and Article 3(3) of the Act on the Organisational Structure of Military Courts, as regards establishing and dissolving courts, are consistent with Article 176(2) of the Constitution.
Article 176(2) of the Constitution makes reference to statutes not only with regard to the organisational structure of courts, but also as regards their scope of jurisdiction. This was also challenged in the content of the two provisions, as it was argued that they authorised the ministers to specify the scope of territorial jurisdiction in a regulation. Thus, it was of primary importance to determine what the jurisdiction of courts was within the meaning of Article 176(2) of the Constitution. The analysis of various provisions included in chapter VIII of the Constitution allowed the Tribunal to draw a conclusion that it was the jurisdiction of certain types and categories of courts, and not the jurisdiction of particular (singled-out) courts.
The requirement to specify the jurisdiction of courts, understood this way, in a statutory form has been fully met in Polish law. Relevant provisions has been included in the Code of Civil Procedure and the Code of Criminal Procedure. At the same time, the said issues have not been the subject of regulations issued on the basis of the provisions challenged in the case under examination. In no way have the ministers changed the statutory rules for specifying the territorial jurisdiction of common and military courts.
The Tribunal stated that the indication of particular categories and types of courts by statute was vital not only in the context of Article 176(2) of the Constitution, but also as regards Article 45(1) of the Constitution. The last-mentioned provision, as another higher-level norm for the review in the case under examination, expressed the right to a fair trial, and – from the point of view of that right – it is essential for the citizen to be able to predict what court will examine his/her case. However, it is unnecessary for the legislator to indicate the said court by its name, determined by its location and the scope of jurisdiction. It suffices when the legislator guarantees that each court within the limits of a given category will respect the right to a fair trial, as set out in Article 45(1) of the Constitution, i.e. the right to a fair and public hearing of a case, without undue delay, before a competent, impartial and independent court. For that reason, the Tribunal concluded that specifying the location of particular courts as well as the scope of their jurisdiction was not an issue that needed to be determined exclusively by statute.
A prerequisite for examining a given case without undue delay is providing a court with proper conditions to adjudicate and take expeditious actions in situations where those conditions change. The point is to maintain an organisational order within the scope of the functioning of particular courts, which sometimes requires shifts within the scope of their jurisprudence, for instance due to the caseload of particular courts and normative changes that occur with regard to the course of court proceedings.
The adoption of a different assumption - in accordance with which specifying the location of particular courts and the scope of their jurisdiction would require the Parliament’s decision expressed by way of a relevant statute - would negatively affect the right to a fair trial, referred to in Article 45(1) of the Constitution. Indeed, the legislator does not have a possibility of reacting to changes which take place within the scope of the functioning of the organisational units of the judiciary as quickly as this can be done by an organ of the executive branch of government. Granting the ministers the power to specify the locations of courts and the scope of their jurisdiction, adequately to the need to ensure the efficient organisation of the judicial system in a way which would take into account the scope of the burden of caseload and the economy of court proceedings, guarantees the exercise of the citizen’s right to a hearing without undue delay. For these reasons, the Tribunal stated that specifying the locations of courts and the scope of their jurisdiction was not subject to the requirement which stated that certain matters needed to be regulated exclusively by statute, and consequently – Article 20(1) of the Act on the Organisational Structure of Common Courts and Article 3(3) of the Act on the Organisational Structure of Military Courts were consistent with Article 176(2) in conjunction with Article 45(1) in conjunction with Article 31(3) of the Constitution.
The constitutionality of the two provisions under examination were also challenged in the context of the principle of the separation of powers, referred to in Article 10(1) of the Constitution. The applicants argued that authorising a minister to establish and dissolve courts as well as to specify the locations of courts and the scope of their jurisprudence manifested the organisational authority over the activity of courts, which in the light of Article 176(2) of the Constitution, should be exercised only by statute. As a result, one may speak of the interference of the executive branch of government with the realm reserved to the legislative branch.
The Tribunal disagreed with that allegation. Pursuant to Article 10(1) of the Constitution, the system of government in the Republic of Poland is based on the separation and balance of the legislative branch, the executive branch and the judiciary. However, the principle of the separation and balance of powers does not eliminate relations between particular powers. The autonomy and independence of the judiciary in relation to the other powers concern only its essence. The said issue had been thoroughly explained by the Tribunal in its judgement of 15 January 2009, ref. no. K 45/07, which concerned the supervision of the Minister of Justice over the activity of administrative courts. Hence, in the case under examination, the Tribunal stated that the challenged provisions did not infringe the principle of the separation of powers, as referred to in Article 10(1) of the Constitution.
Another higher-level norm for the review indicated by the applicants was Article 180(5) of the Constitution, pursuant to which in the case of the reorganisation of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or may retire with maintenance of his/her full remuneration. The applicants argued that establishing and dissolving courts by regulation constituted a basis for removing judges to another court or to force them to retire, and thus undermined their independence. The Tribunal disagreed with the said allegations. Indeed, the content of Article 180 of the Constitution should be interpreted in a broader sense. On the one hand, this is a provision which implements the principle of independence and autonomy of the judiciary; on the other, it constitutes a necessary requirement of the individual’s right to a fair trial. The fair adjudication in a given case may only be guaranteed by an independent and impartial court, which has been emphasised by Article 45(1) of the Constitution. The protection of the independence of judges by guaranteeing that they will not be recalled and removed is not an objective in itself, but it is a means that makes it possible to implement the constitutionally-enshrined right to a fair trial. The constitution-maker explicitly provides for the removal of a judge to another court in the case where the borders of judicial circuits are changed, and the requirement of the statutory basis solely concerns the removal which is related to the change in the organisational structure of courts. For these reasons, the challenged provisions are consistent with Article 176(2) in conjunction with Article 180(5) of the Constitution.
The last higher-level norm for the review in the case under examination was Article 92(1) of the Constitution, pursuant to which regulations should be issued on the basis of specific authorisation contained in, and for the purpose of implementation of, statutes by the organs of public authority specified in the Constitution. The authorisation shall specify the organ of public authority that is appropriate to issue a regulation and the scope of matters to be regulated as well as guidelines concerning the provisions of such an act. The way of formulating the guidelines, the scope of their details and the content thereof actually fall within the realm of the legislator’s discretion. The review of the Constitutional Tribunal is limited merely to two issues. Firstly, the Tribunal examines whether a given statute contains any guidelines, as the complete lack thereof determines the unconstitutionality of the authorisation. Secondly, the Tribunal establishes whether the way in which the guidelines are formulated (provided they are identified) is consistent with the general requirements that certain mattes should be regulated exclusively at the statutory level.
In the case under examination, there were no doubts that Article 20(1) of the Act on the Organisational Structure of Common Courts contained guidelines as to the content of the regulation. What was challenged was only their excessively general character, described by the applicants as “a carte blanche character”. The analysis of the content of that provision leads to the conclusion that main guidelines which it indicates are the following: the need to guarantee the efficient organisation of the judiciary as well as the economy of court proceedings. The first guideline was made additionally specific by indicating that the efficient organisation of the judiciary requires adjusting the number of courts, their sizes and their scope of jurisdiction to the caseload of the courts. Additionally, the legislator specified an objective that the Minister of Justice should bear in mind when issuing a regulation. The said objective, which also constitutes a guideline, is to guarantee the citizen’s right to a hearing without undue delay. The guidelines concerning the content of a regulation, which are set out in this way, are sufficiently detailed and meet the requirements set out in Article 92(1) of the Constitution.
The Tribunal assessed the constitutionality of the authorisation to issue a regulation, as provided for in Article 3(3) of the Act on the Organisational Structure of Military Courts, in a completely different way. The said provision contains no guideline as to the content of the regulation, and thus it fails to meet the requirement of specific content, which arises from Article 92(1) of the Constitution. The lack of any guidelines in the content of that provision was unanimously stated by the applicants, the Sejm and the Public Prosecutor-General, and the said fact was confirmed by comparing the provision with Article 20(1) of the Act on the Organisational Structure of Common Courts. Both provisions authorise a given minister to issue a resolution concerning analogous matters. However, Article 20(1) adds that the Minister of Justice, when issuing a relevant regulation should bear in mind “the need to guarantee the efficient organisation of the judiciary, by adjusting the number of courts, their sizes and the scope of jurisdiction to the caseload of the courts, as well as by taking into account the economy of court proceedings so as to guarantee the exercise of the citizen’s right to a hearing without undue delay”. There is no such reservation in the content of Article 3(3) of the Act on the Organisational Structure of Military Courts. In other words, the last-mentioned provision provides for no guidelines as to reasons why the Minister of National Defence would establish or dissolve military courts as well as specify their locations and the scope of their jurisdiction. Thus, there is no doubt that the said provisions contain no guidelines. Also, it was not possible to reconstruct them from other statutory provisions. For that reason, Article 3(3) of the Act on the Organisational Structure of Military Courts was ruled to be inconsistent with Article 92(1) of the Constitution.
The Tribunal decided to defer the date on which Article 3(3) of the Act on the Organisational Structure of Military Courts will cease to have effect by 12 months. During that period, the said provision should be improved by the legislator. He should supplement it with the missing guidelines as to the content of a regulation on establishing and dissolving military courts as well as specifying their location and the scope of jurisdiction.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Marek Kotlinowski.
The judgment is final and its operative part shall be published in the Journal of Laws.