Not only free courts, but also speedy and friendly. The Congress of Lawyers has a plan. What about Ziobro?
Depoliticization of the National Council of the Judiciary, depriving the Minister of Justice of oversight with respect to courts and the prosecutorial service, speeding up cases in commercial and administrative courts, lowering court fees for citizens and elimination of the Supreme Court’s Disciplinary Chamber. These are the most important proposed changes in the law presented at the 2nd Congress of Polish Lawyers.
Draft legislative amendments and details on the reasoning behind them were presented on Saturday (June 1, 2019) in Poznan at the 2nd Congress of Polish Lawyers. OKO.press reported on happenings at the Congress and the most important appearances on Saturday.
Here we will present the proposals for changes in the law. They have been developed by a citizen’s codification commission established two years ago after the 1st Congress of Polish Lawyers in Katowice. The commission was composed of lawyers.
The most important proposals concern boosting the independence of the courts and prosecutorial service, speeding up the processing of cases and increasing the participation of citizens in the justice system.
I. Depoliticization of the National Council of the Judiciary, the prosecutorial service and the courts.
PiS disbanded the previous, independent Council and appointed judges to it who agreed to cooperate with the current government.
Lawyers are pushing for the restoration of the Council’s independence. The justices-members of the KRS are to again be elected by judges, rather than by members of parliament as they are under the current system. In addition, the largest proportion of judges in the Council is to come from the common courts in order to provide the fullest representation of the judicial community.
Candidates’ applications to the Council are to be public, and they should be selected in elections organized among judges.
The Council would be given expanded competences, taking over supervision of common courts from the Minister of Justice. The Minister has exercised such supervision for many years, but recently has also received tools to influence judges through legislative changes (incompatible with the constitution) adopted by PiS.
The lawyers also propose that directors of courts, who are responsible for organizing the work of courts and their finances, be placed under greater supervision of the presidents of courts. Today they are responsible to the Minister of Justice.
Alongside the reformed National Council of the Judiciary there would be a Social Council composed of citizens, ensuring participation by the public in the exercising of control over the administration of justice. The Council would be responsible for reviewing the Council’s performance of its tasks.
The lawyers are also proposing that the status of common courts judges be made uniform. Today, there are appointments to district, circuit and appellate courts. Lawyers want justices to have equal status regardless of where they adjudicate.
Similar proposals are being pushed by the Ministry of Justice, which also wants to liquidate the current courts and appoint new ones. This will facilitate a purge of judges in Poland to remove those who refuse to cooperate with the ruling party.
Another suggestion made by the Congress concerns the liquidation of the Disciplinary Chamber at the Supreme Court, which PiS has enacted in order to more quickly expel defiant lawyers from the profession.
Disciplinary proceedings would still be conducted by disciplinary courts, but without the Disciplinary Chamber, which enjoys special status and financial privileges and is packed mainly with people who have cooperated with Justice Minister Ziobro.
The lawyers of the Congress also propose separation of the position of Prosecutor General from that of Minister of Justice, as well as boosting the independence of the public prosecutorial service. A similar model functioned several years ago, but PiS abolished the independent prosecutor’s office.
The lawyers also gave consideration to reducing the court fees that citizens pay when filing lawsuits. This was not, however, officially advanced as a proposal because the Ministry of Justice failed to provide data on how many citizens pay such fees each year.
II. Changes to administrative courts
Lawyers are proposing major changes in both provincial administrative courts and the Supreme Administrative Court. These courts adjudicate on citizens’ complaints about the decisions of officials and central state institutions. This is where complaints about tax decisions, building permits, reprivatisation, social insurance decisions, etc. are heard.
Lawyers are seeking to accelerate administrative court proceedings – at present, applicants must essentially go through four instances to conclude a case (two instances within administrative structures and two court instances). And this is not a guarantee that the case will be resolved, because the administrative court can only refer matters back to public administration.
Administrative courts cannot investigate the substantive aspect of a case and cannot amend an official’s decision. They can only examine whether an administrative authority has violated the law and whether a decision is lawful. Therefore, disputes with public administration can go on for years.
The lawyers are proposing that administrative courts be given the power to amend officials’ decisions and evaluate them on the merits. They would also be empowered to conduct their own evidentiary proceedings.
Another proposal is that if citizens win in court, the court could award them a certain sum of money from the administrative authority whose decision was being contested. This would provide to citizens the feeling they had won, and to administrators that they had lost.
It was suggested that a new level of administrative courts would be created to examine appeals against the judgments of provincial courts. The current NSA would function like the Supreme Court, i.e. it would only be a court of law, adjudicating only on a portion of the most important cases.
In addition, lawyers want these courts to be closer to citizens. They propose that complaints against the decisions of central administration offices based in the capital should be dealt with by the court competent for the applicant’s place of residence rather than in Warsaw. This would also help relieve the caseload burden on the Provincial Administrative Court in Warsaw.
Lawyers also want more administrative acts to be subject to judicial scrutiny.
Another proposal concerns the liquidation of the Court of Competition and Consumer Protection. Presently it functions as a special department of the Circuit Court in Warsaw. Lawyers suggest that its cases be put in the domain of the administrative court.
Another interesting suggestion is for administrative courts to be given the power to impose heavy fines on officials for inaction.
However, some changes in administrative courts would require amending the Constitution.
III. Changes in commercial courts
To speed up the trials, lawyers suggest that pre-trial mediation should be mandatory. It would be necessary in circuit courts that hear the most important and largest commercial disputes.
The lawyers also propose that citizen commercial judges should adjudicate in circuit courts. These could be entrepreneurs selected by provincial assemblies, providing the so-called social factor in commercial courts. Lawyers expect that entrepreneurs would help judges in adjudicating commercial cases owing to their business experience.
All draft legislation and justifications are available on the webpage of the 2nd Congress of Polish Lawyers.
During a break at the Congress on Saturday, OKO.press asked at a press conference if the proposed changes could be more revolutionary, and not only a reaction to changes introduced or proposed by Zbigniew Ziobro’s justice ministry.
Will lawyers offer to citizens a vision of a citizen-friendly justice system and of civil and criminal law and court procedures that could speed up the process of hearing cases?
Krystian Markiewicz, the head of Iustitia, which is the largest association of judges in Poland, said at the Congress that caution is necessary with revolutionary and “comprehensive” changes in the courts. “We cannot afford the. The courts are on the verge of exhaustion [every year close to 15 million new cases are filed]. Making revolutionary changes can lead to the patient’s death. Our proposals are a starting point for further discussion,” said Markiewicz at the Congress.
He warned that radical changes in courts could end in chaos and the disintegration of the system, which would harm citizens.
Behind the scenes of the Congress, it could also be heard that the preparation of proposals for an in-depth reconstruction of the justice system requires significant time as well as resources to employ experts to prepare these changes.
The draft amendments to the law prepared by the social codification commission will be presented to the Minister of Justice on Monday or Tuesday (3 or 4 June). The lawyers are also considering presenting them to politicians.
We can assume that the ruling authorities will ignore these proposals because their “vision” is of a justice system subordinated to them. In turn, their vision for rewriting the law is to make it harsher on the average citizen.
[translated by Matthew La Fontaine @mlafontaine_PL]