Association of Polish Judges "Iustitia" 's response to the A SUPPLEMENT TO THE WHITE PAPER ON THE REFORM OF THE POLISH JUDICIARY dated March 22, 2018, prepared on the basis of information collected from EU member states judges.

 

Spain

Supplement:

13 out of 21 members are judges (over 3/5 majority).

• 12 members – Parliament (3/5 majority, no supplementary mechanism, no additional guarantees for parliamentary groups);

• 1 member – ex officio (President of the Supreme Tribunal).

 

The analysis is in principle correct, except that there are 12 judges in the General Council of the Judiciary (CGPJ). The Spanish Constitution provides that the total number of the Council's 20 members - 12 are judges, while the other members are not judges. The members of the Council elect a Chairman who will be also the President of the Supreme Court, but there is no requirement that the person should be a judge (Article 586.1 LOPJ). The current President of CGPJ, Mr. Carlos Lesmes, is a judge of the Supreme Court, and currently there are 13 judges in the Council.

In Spain, during the last reform of the Council in 2013, CGPJ had the opportunity to express their opinion and its members completed their mandate. On the other hand, as indicated in the table comparing the two systems, there are no executive or legislative representatives in the CGPJ.

Supplement:

In Spain, CGPJ members can be dismissed only when the council itself decides - there is no such possibility in Poland.

This information is true. However, the authors of the Supplement omit the most important issue, which is the procedure of election the members of the Council. Although in Spain the final decision regarding the appointment of members of the Council is made by the parliament (this is a situation in Europe that is exceptional), the candidates are nominated by the judiciary only. In addition, the initial verification of the list of candidates is conducted by the presidium of the Cortes and the Electoral Commission (Junta Electoral) composed of representatives of the judiciary, with the President of the Supreme Court, who must take into account the representativeness of the candidates, in particular in terms of affiliation to particular levels and types of judiciary. This is a fundamental difference, because in Poland only the politicians decide about the choice of judges, there is no guarantee of representativeness and the judges have no influence on the process of verification of candidates.

 

England and Wales

Supplement:

The Judges Council is composed with an overwhelming majority of judges (28 out of 29 members). However, the Council itself does not directly deal with judicial appointments – It nominates just 3 members of the Judicial Appointments Commission (JAC). The Commission itself is composed of 15 members, out of which only a minority (7) must hold a judicial office.

 

The Supplement authors quoted true data on the composition of the Judges' Council. However, underlining that the Minority Nominations Committee is made up of judges, they did not add that the Commission is not a governmental body; it is a completely independent body.

The British Lord Chancellor is an office separate from the Minister of Justice (but held by the same person). As the United Kingdom does not have a single, written constitution, the exact role and scope of the duties assigned to both offices may differ from that usually found in the continental Ministers of Justice. In any case, the Lord Chancellor is the executive body of Her Majesty's Government and plays a significant role in the process of consenting to the office of the judge when he reaches the retirement age.

The Supplement authors have overlooked the fact, as regards the Lord Chancellor, that head of the England and Wales judiciary is the Lord Chief Justice, not (any longer) the Lord Chancellor.

 In any event, they have overlooked the fact that Judicial Pensions and Retirement Act 1993 was amended by the Constitutional Reform Act 2005 when the office of Lord Chancellor was altered and the Lord Chief Justice took over from the Lord Chancellor as head of the judiciary. Section 26(5) now states as follows:

“If, in a case where this subsection applies, the appropriate person considers it desirable in the public interest that the holder of a relevant office should continue in that office after his compulsory retirement date, he may authorise the person to continue in office, either generally or for such purpose as he may notify to the person, for a period not exceeding one year and not extending beyond the day on which the person attains the age of 75.”

Section 26(6) now states:

“If, on the expiration of the period for which a person is authorised to continue in office—

a. by virtue of subsection (5) above, or

b. by any previous exercise of the power conferred by this subsection,

 the appropriate person considers it desirable in the public interest to retain the person in office for a further period, he may authorise him to continue in office, either generally or for such purpose as he may notify to the person, for a further period not exceeding one year and not extending beyond the day on which the person attains the age of 75.”

 The “appropriate person” is defined in section 26(12) as meaning “(a) the appropriate Minister in a case which falls within paragraph (a) of the definition of the expression in section 30;  (b) in relation to any judicial office whose jurisdiction is exercised exclusively in relation to England and Wales, the Lord Chief Justice of England and Wales; …”. (a) is concerned with Scotland, not E&W.

 Section 26(13) then provides:

 “Where the Lord Chief Justice of England or Wales is the appropriate person, he must obtain the concurrence of the Lord Chancellor before exercising any functions under this section.”

 The point is that it is the Lord Chief Justice who does the authorising. The Lord Chancellor needs to concur but the authorisation comes from the Lord Chief Justice.

 In the pre-2005 Act version of the 1993 Act, instead of “appropriate person” the reference was to " appropriate Minister" and this was defined in section 30 as meaning “(a) in relation to any judicial office whose jurisdiction is exercised exclusively in relation to Scotland, the Secretary of State; or (b) subject to paragraph (a) above, the Lord Chancellor;”.

 It follows that the White Paper is quite wrong as regards England and Wales in that it is the Lord Chief Justice who decides on appointments post-70.

 

France

Information on the French system is correct.

However it should be noted, that concerning the judicial retirement age, the situation is different for judges or prosecutors from the Cour de cassation, as they can postpone their retirement and remain until this limit as judges or prosecutors in the same court.

 

Portugal

Supplement:

The Superior Council of the Judiciary (Conselho Superior da Magistratura) is also composed with a minority of judges: there is 8 judicial members (7 judges elected by their peers and the President of the Supreme Court ex officio) and 9 nonjudicial (2 members appointed by the President of the Republic and 7 – by the Parliament) .

 

Information that the judges in the Supreme Judicial Council are the minority, but that the small (9 to 8) is true.

But some clarifications are needed.

The President of the Superior Council of the Judiciary is, “ex officio”, the President of the Supreme Court.

The Vice President of this Council – uncharged of the management of this Council - is also a Supreme Court judge. The Vice President is the responsible for the management of the Council – he/she is in “full time” basis in the Council.

Although not mandatory the non-judicial members are only in a part-time basis in the Superior Council; in contrast all the member judges – except the President – are in a full time basis working in and for the Superior Council.

Also there was a long established tradition that the President of the Republic appoints retired acting judges (or former Presidents of Constitutional Court, for example) to be members of this Council. Only very recently this tradition was not followed.

 

Nevertheless, because of this small majority of non-judges, Portugal is facing a Council of Europe (GRECO IV Round Evaluation) Recommendation to change the present situation:

“the role of the judicial councils as guarantors of the independence of  judges and of the judiciary is strengthened, in particular, by providing in law that not less than half their members are judges elected by their peers”

(link here https://rm.coe.int/16806c7c10 (page 58)

Also in this recommendation was written:

“In this respect, the GET (CoE) wishes to recall Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, which stipulates that judges elected by their peers should make up not less than half the members of councils for the judiciary.

In Portugal, the legal framework falls short of meeting this important requirement.

Nonetheless, the possibility to challenge (…) the Council’s decisions before a court seems to provide for an adequate remedy.

 

On the other hand is must be also underlined that GRECO Evaluation said in an undoubtedly manner:

Judges are independent. They are to administer justice only in accordance with the Constitution and the law, and are not subject to orders or instructions beyond their duty to comply with the rulings of superior courts. Judges enjoy security of tenure and cannot be transferred, suspended or removed except as provided for by law.

 

Germany

The supplement to the White Paper gives a really very simplified presentation of the German judicial system.

 The Polish government didn’t mentioned that there are many other safeguards in Germany foreseen to guarantee the independence of the Judiciary. Particularly the independence of judges against illegal dismissals, secondments, not-being appointed or promoted for, arbitrary and irrelevant reasons are much more developed as in Poland. Many decisions of the Ministries of Justice (we have 16 on Länder-Level and one on federal level) can be brought to the courts and not seldom they were changed. And we have in our German federal system 16 different Models for the Judiciary and one on federal level, what makes it very complicated  to change the current system.

 It should be recommended the article of Prof. Sanders and Luc von Danwitz in www.verfassungsblog.de.

 The Polish Judiciary Reform: Problematic under European standards and a Challenge for Germany -Anne Sanders, Luc von Danwitz

https://verfassungsblog.de/the-polish-judiciary-reform-problematic-under-european-standards-and-a-challenge-for-germany/

 

The Netherlands

In the Netherlands, the judicial members of the Council for the Judiciary are selected by the judiciary. They are appointed on the proposal of the Council for the Judiciary, based amongst others on the advise of a selection committee (consisting mainly of judges and court staff).

Members of the Council for the Judiciary are appointed by a Royal Decree, which is an administrative act without discretion. ​The Netherlands Council for the Judiciary consists currently of 4 members. All members have an individual mandate. Two members are judges and two are not. The procedure for the appointment of any ​member of the Council  (judicial/non-judicial) starts with the publication of a vacancy​. The Council for the Judiciary makes a first selection of the candidates and sends a list of candidates to the advisory selection committee consisting of a Court President, the chairman of the Judges Association (only one exists in NL) president of the college of representatives of all court personnel (judges and court staff) a non-judicial court board member and a nominee by the MoJ. The employee council of the secretariat of the Council for the Judiciary also gives its advice. The Council then takes a decision and sends a list, usually with one name only, to the Minister of Justice for appointment.  . ​

The President and Vice-President of the Council are always judges. when the vote in the Council is tied, the President (who is always a judge) has the casting vote. Article 84, paragraph 1 of the Judicial Organisation Act provides that the Council should consist of a minimum of 3 members and a maximum of 5 members. Article 84, paragraph 4 of the Judicial Organisation Act provides that when the Council consists of 4 members, at least 2 should be judges. In formal terms, the appointment of all members of the Council is made by a Royal Decree (i.e. an act adopted by the Government on proposal by the Minister for Security and Justice). However, the appointment of all members of the Council is made after an extensive consultation round within the Judiciary – both with the senior judges and the current Council for the Judiciary.​

 

The Council is responsible for:

a) preparing the budget for the Council and the courts jointly;

b) allocating budgets from the central government budget to the courts;

c) supporting operations at the courts;

d) supervising the implementation of the budget by the courts;

e) supervising operations at the courts;

f) nationwide activities relating to the recruitment, selection, appointment and training of

court staff.*

*Under f - court staff, judges are included. 

 

The Council does not deal with the appointment and promotion of judges directly. A separate national selection committee is in charge of that. The Council has decided (and published in the national state gazette) the composition and functioning of the selection committee. If you need more information on that aspect, the Dutch colleagues are in a better position to explain. 

 

Denmark

Supplement:

IN DENMARK there are two councils – one for court administration (Domstolsstyrelsen) – that consists of 11 members (5 judges), and another for judicial appointments (Dommerudnævnelsesrådet), composed of 6 members (3 judges). Only the first was quoted in the White Paper, which might have caused misapprehensions. However, it is worth pointing out that judges have no majority in neither of these councils – yet Danish justice system is perceived as most independent in Europe (EU Justice Scoreboard 2017, also quoted in the White Paper – para. 129).

 

According to the Supplement judges have no majority in neither of the two councils in Denmark. That conclusion is imprecise as the statutes give the chair person the conclusive vote in case of a tie vote in the board/council, as it is explained below.

 In the council for judicial appointments (Dommerudnævnelsesrådet), there are 6 members (3 judges). In accordance with the statutes for the council § 3 the Chair man of the board must be judge at the Supreme Court (Højesteret). If there is a tie vote in a council decision, the chair man’s vote is conclusive according to § 16, section 2 in the statutes. So in this council the judges in fact have majority in the decision making.

The statutes can be found here: https://www.retsinformation.dk/Forms/R0710.aspx?id=396 (Government page in Danish, unfortunately not available in English)

 

The board for the Danish Court Administration (Domstolsstyrelsen) consists of 11 members (5 judges). It is correct that the judges are a minority, but according to § 11, stk. 2 in the statutes for the board, the council can make decisions with 7 or more board members present at a board meeting. The decisions are made by majority decision and the chair man’s vote is conclusive in case of a tie vote according to § 14 in the statutes. The chair man is appointed by the board by simple majority decision according to § 3. The current chair man of the board is judge of the Supreme Court and has historically always been a judge of the Supreme Court. To sum up, the judges have no majority when the board is complete, but there are rules in the statutes to give the chair man the final saying in case of a tie vote when the board is incomplete but decision-making.

Link to the statutes: https://www.retsinformation.dk/forms/R0710.aspx?id=398 (Government page in Danish, unfortunately not available in English)

 

Greece

In Greece, the judicial system is completely independent of the political authorities, in particular the Minister of Justice.

There is no supervisory body in the courts. General administrative responsibility is entrusted to the Supreme Court.

 

Bulgaria

At the Supreme Judicial Council of Bulgaria, the judges elected by the judges do no create the majority. The Chamber of Judges of the Council dealing with appointments, promotions and disciplinary matters related to judges consists of 14 members - 2 of them ex officio /presidents of the Supreme Court of Cassation and the Supreme Administrative Court/, six judges are elected by other judges and six are elected by the Parliament. The procedure for the selection of judges to the Supreme Judicial Council, whereby only six of the 14 members are elected by other judges, has been criticized by the Venice Commission in the last two opinions against Bulgaria:

http://www.venice.coe.int/webforms/documents/?pdf= CDL-AD (2017) 018-e

and http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)022-e.

Bulgaria is not a good example when it comes to standards of independence of the judiciary, but even there some of the judges to the Supreme Judicial Council are elected by judges, whereas in Poland no judge is elected to the National Judiciary Council by judges.

. First of all, it is surprising that the comparative analysis proposed with regard to the Judicial Councils does not take into account the constitutional system of the self-governing body of the Italian judiciary (CSM), with respect to which it seems appropriate to underline its characteristics:

the Italian High Council is a self-governing institution in order to insure the autonomy and independence of the judiciary from the other branches of the state, particularly the executive, according to the principle of the separation of powers expressed in the Italian Constitution.

The High Council of the Judiciary is presided over by the President of Italy. The First President and the General Prosecutor of the Supreme Court of Cassation are members ex officio. The other twenty-four members of the council are elected. Two-thirds of the elected members (the "togate members") must belong to the judiciary and are elected by all the ordinary magistrates. One third of the elected members (the "lay members") are chosen by a joint session of the Italian Parliament and must be university professors dealing with law or lawyers who have worked in the profession for at least fourteen years.

2. With regard to the "extraordinary appeal" (pag. 7), the description of an "appeal to the Supreme Court for breach of law", provided by Art. 111(6) of the Italian Constitution, seems completely different from the structure and the function of this appeal, for many reasons.

The appeal to the Supreme Court, pursuant to Art. 111(6) of the Constitution is, in fact, an "ordinary" appeal. This means that it is not an extraordinary one and, therefore, it cannot overwhelm definitive and irrevocable rulings.

The Italian legal system provides, in effect, an appeal to the Supreme Court "in the interest of the law" (Article 368 of the Italian Code of Civil Procedure). However, it can be considered as part of the function regarding a uniform application of the law assigned to the Supreme Court. The General Prosecutor can promote this appeal for the sole purpose of affirming a "principle of law". This institution intends to contribute to the formation of reliable precedents of the Supreme Court that will be considered in order to resolve identical or similar future cases.

The criminal procedure also provides an appeal to the Supreme Court in the interest of the law. Article 568(4)bis of the Italian Code of Criminal Procedure - introduced by the Legislative Decree No. 11 of 2018 – enables a Public Prosecutor to bring an appeal to the Supreme Court in order to obtain favourable effects for the defendant and, therefore, in the main interest of the legality of the decision.

 

3. With regard to termination of service as a magistrate due to age limits, it is noted that the radical reduction to 65 years provided by the recent Polish legislation, has resulted in about 40% of the magistrates of the Supreme Court (including the First President) being made redundant.

In Italy, where in 2014 the retirement age of magistrates also lowered (from 72 years to 70 years), only a small percentage of magistrates faced forced retirement. As an effect, the law introduced as of 2014 did not cause public outrage.