Mr.Cyran / judge, Cracow, Poland
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In Poland there are 11 courts of appeal, 45 regional courts and 318 district courts at the moment. The basic regulations describing a role of the president of a court is the Act of 27 July 2001 on the Law on Common Courts Organisation (Journal of Laws of 12 September 2001) and the Ordinance of the Ministry of Justice of 18 June 2019 on the Regulation of common courts functioning (Journal of Laws of 19 June 2019).
Since 1928 the courts’ management was assigned to judges, presidents and vice-presidents. However the complexity of courts’ operations resulted in new challenges which should have been addressed. Step by step new specialised tasks were moved to clerks equipped with relevant knowledge. With the Act of 27 July 2001 the position of the director was created within a court administration. It was expected by judges that an introduction to the judiciary system a position of the manager, who is appropriately, professionally educated in economics, finance and management, will help to face more and more complex duties within court’s management. The burden of duties connected with economics and finance imposed on the president has reduced his capability in performing his main tasks associated with the court administration and supervision over court’s activates.
From that moment according to the Art. 21 of the Act on Law on Common Courts Organisation bodies of courts are as follows: president, board and director. In district courts directors are established when it is justified with organisational reasons. If the director is not appointed in a district court his role is played by the director of a regional court.
The director of a court is subordinated to the Minister of Justice. The president of a court executes activities of labour law towards the director apart from those belonging to the Minister. The director is responsible for safeguarding appropriate technical, organisational, financial conditions of work for court. A detailed list of director’s duties was included in the Act of 27 July 2001 in order to avoid conflicts in court’s management with the president of a court.
By presenting shortly a significant change which was implemented in the Polish judiciary management system almost 20 years ago now I would like to concentrate on the role of the president of a court.
For the position of the president of a court judges are nominated by the Minister of Justice. Throughout last years from a nomination procedure of the president of a court were excluded opinions or consents of judges of a relevant court. Nowadays the Minister of Justice is free to choose a judge for the post of the president of a court. Presidents of courts of appeal are nominated for one 6 years term and presidents of district and regional courts are nominated for 4 years and that term could be repeated only once.
The president of a court may be dismissed by the Minister of Justice in the course of the term of office: in the event of gross failure to fulfil service duties; if further performance of the function, for other reasons, cannot be reconciled with the interest of the justice; due to low efficiency of the internal administration supervision and organisation of work; resignation. The president of a court is dismissed upon consultation with the board of a court.
Presidents are subordinated to the Minister of Justice within the scope of their tasks related to administration activities of a court. Presidents of district and regional courts are subordinated to the superior president of a court as well. In case of absence the president of a court is replaced by the vice-president. The president of a court, besides presidents of courts from the competency area, is a member of the board of a court.
Referring to the Art. 22 of the Act of 27 July 2001 it is possible to list basic tasks of the president of a court, who:
- manages and represents a court, with the exception of duties falling within the competence of the director of a court, in particular:
- performs duties within the scope of the court administration,
- once per year at least defines needs of court in order to safeguard proper functioning of a court,
- is professional superior of judges, assessors, referendaries, assistants of a given court as well as head of a specialists team,
- assigns judges assessors, referendaries, assistants their duties and dismisses from them,
- analyses verdicts of the court in the context of its uniformity, informs judges about results of it and in case of considerable discrepancies informs the First President of the Supreme Court,
- performs other duties stipulated in the act and in separate provisions,
- determines, with the consultation of the board of a court, an allocation of judges, assessors and referendaries to specific divisions; distribution of duties in the court and assignment of cases to particular judges and referendaries as well as a replacement plan,
- might transfer judge to different division.
The Act of 27 July 2001 has divided the supervision within the judiciary into external and internal. The external one is performed by the Ministry of Justice and the internal by presidents of courts. According to the Art. 37 of the Act the internal supervision is executed by the president of a court in person or by persons designated for that purpose. Presidents of courts reverse administrative orders inconsistent with the law or disturb the efficiency of court proceedings or are ineffective for other reasons. The Administration Division is established in the court in order to enable the president of a court performing the internal administrative supervision – § 23 of the Ordinance of Ministry of Justice of 18 June 2019 on the Regulation of common courts functioning.
The president of a court performing the internal administrative supervision:
- checks efficiency of proceedings in particular cases,
- controls divisions’ secretaries,
- checks the correctness of assignment of cases to judges, assessors and referendaries and the equal burden of work allocated to them,
Activities undertaken by the president of a court are as follows:
- inspection of a court or its units which covers the entire activity of the court or its unit,
- vetting in a court, includes selected issues related to the activity of a court or its unit.
When the irregularity in court proceedings efficiency is identified, presidents of courts may make a written comment on the irregularity and request the removal of results of such irregularity. The president of a court of appeal might indicate the irregularity in managing the Court to presidents of courts from the competency area of the court of appeal.
The president of a court of appeal constructs the annual report on courts operations in the competency area of the court of appeal which is accepted or rejected by the Minister of Justice. The president of a court presents to the director his assessments of court’s needs indicated by judges, assessors and referendaries.
Within administrative tasks the president of a court referring to the § 30 of the Ordinance of the Ministry of Justice of 18 June 2019:
- takes steps to fill freed posts of judges, assessors, referendaries, assistants, probation officers and head of specialists team,
- supervises transfer of files and letters to other courts,
- cooperates with the National School for Judiciary and Prosecutors in the area of training,
- receives visitors, clients in the area of claims and motions concerning the work of court,
- exchanges information with Prosecutors’ Office units,
- ensures observation by staff members rules of safety and protection of court’s facilities,
- determines issues connected with the work of lay judges and cooperates with the lay judges council,
- informs public opinion in the area covered by the Act of 6 September 2001 on access to public information,
- is an administrator of personal data,
- fulfils tasks connected to the Act of 21 November 1967 on the common duty of defending the Republic of Poland,
- performs tasks connected with the Act of 5 August 2010 on protection of secret information,
- presents, on request of relevant institutions, the stage of a particular case,
- supervises collecting of statistical data,
- performs everyday duties connected with efficient functioning of a court,
- resolves doubts connected with an allocation of cases,
- conducts a list of mediators, publishes it and organises their meetings.
Noteworthy are other duties of the president of a court who also:
- is responsible for exercising duties of judges, assessors and referendaries in a proper time,
- executes the human resources policy,
- is a legal body of a court and represents it in judicial disputes as a legal entity.
To enable the president to deal with listed above duties he has reduced amount of work as a judge what means receives an allocation of cases on the level of 25 % of a regular allocation of a judge.
To sum up above mentioned duties of the president of a court it should be emphasized that he is responsible for safeguarding a proper course of internal work of a court directly connected with executing its tasks. It means that the president should focus on issues associated with administering the justice. However his activates must be performed in a way there is no even an impression of influencing verdicts in particular cases. That is why the president ought to use a self-limited approach in that area. Being a professional superior of judges, assessors, referendaries the president can not infringe their independence.
Depriving the president of the court a direct influence on budget issues results in weakening his position and could be perceived as his more dependency on the Minister of Justice. Within financial issues not president of a court but the director manages and represents the court. Dependency of the director of a court to the president of a court is reserved to minor issues. What creates doubts is a division in superiority over clerks between the director and the president of a court. It might influence a smooth functioning of the institution.
The way presidents are appointed has reduced their legitimacy within judges. There is now no consultation or consent procedure with judges during the nomination process. The link between the Minister of Justice and the president of a court was strengthen. Relatively strong connection of the president of a court to the Minister of Justice results in his low flexibility within court’s management as far as everyday decisions, e.g. in an allocation of cases, are concerned. Most decisions are consulted with the Ministry.
Activities of the president of a court as well the director of a court are strongly rooted in legal regulations what seems to be obvious on the one hand. On the other hand it influences potential activities of the president in areas of interest which are not typical for courts like spreading knowledge on the judiciary within a society. Within his duties there are no tasks devoted to that what has an impact on the possibility of building a positive picture of a court or the judiciary in general within citizens.
As it was presented the role of the president of a court in the contemporary Polish judiciary is to manage the court. Limited freedom in taking his own decisions reduces efficiency of the established model of the judiciary management in Poland. The basic task of the president of a court and cooperating with him director is to ensure appropriate conditions and resources for judges, assessors, referendaries and clerks in everyday work what partly was achieved by described legal solutions.
Bibliography
- Act of 27 July 2001 on Law on Common Courts Organisation (Journal of Laws of 12 September 2001) – ustawa z 27 lipca 2001 roku Prawo o ustroju sądów powszechnych,
- Banasik Przemysław „Sąd zaangażowany społecznie – pożądany kierunek zmian”, C.H. Beck, Warszawa 2017
- Górski Antoni „Prawo o ustroju sądów powszechnych. Komentarz.”, Warszawa, Lex 2013,
- Gudowski Jacek „Prawo o ustroju sądów powszechnych. Ustawa o Krajowej Radzie Sądownictwa. Komentarz”, Wydanie II, Warszawa, LexisNexis 2009
- Ordinance of Ministry of Justice of 18 June 2019 on Regulation of common courts functioning (Journal of Laws of 19 June 2019) – Rozporządzenie Ministra Sprawiedliwości z dnia 18 czerwca 2019 roku Regulamin urzędowania sądów powszechnych,
- Żaczkiewicz-Zborska Katarzyna „Nadzór prezesów nad sędziami ma wpływ na orzekanie”, Prawo.pl, 14.01.2014, https://www.prawo.pl/ prawnicy-sady/nadzor-prezesow-nad-sedziami-ma-wplyw-na-orzekanie,177824.html
- https://arch-bip.ms.gov.pl/pl/ministerstwo/sady-powszechne/