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Poland: Letter of MEDEL to MoJ

MEDELMEDEL, along with the European Union, the Council of Europe and the United Nations always underlines the key-role of an independent judicial power as an indispensable guarantee for the promotion of fundamental rights and basic freedoms of all citizens.

The right to a fair trial by an independent and impartial tribunal established by law is one of the crucial human rights in a democratic state. It is a duty of the government of each democratic country to organize its judicial system in a way guaranteeing everyone the access to justice.

In the light of this, MEDEL is deeply concerned with the situation of the judiciary in Poland. As it appears, acts of the Ministry of Justice have allegedly been taken without respect for the separation of powers, the Constitution and the Law on Common Courts.

One consequence of a major change of the structure of courts in Poland was that hundreds of judges had to be transferred to positions in other courts.

The Law requires that this is issued by the Minister of Justice. Yet he did not do it himself, but chose to be represented by his deputies. A judge who was transferred to another position by the deputy of the Minister of Justice held this to be a breach of the Law and took the case to the Supreme Court. By a decision of August 2013, the Supreme Court of Poland held that the Minister of Justice was not authorized to transmit to another person his exclusive competence to transfer judges and that the transferal of that judge was null and void.

This decision, issued by the highest legal authority in Poland has an enormous impact on the judiciary in Poland. As the reasoning of the decision of the Supreme Court was in the essence based not on special circumstances of an individual case, but on general observations about the law and the limitations of the power of the Minister of Justice, it is obvious, that judges throughout the country, who are in the same position as the plaintiff, find that the reasoning applies to their cases as well.

Without being assigned to a court properly, a judge cannot adjudicate cases. This is why by now almost one hundred judges feel compelled to abstain from performing their judicial power as they are not properly authorized to do it. There are already many decisions annulling judgments issued by them only because the judges in the lower instance have not been properly assigned to the court.

In this situation we are very concerned with the fact, that it seems that the Minster of Justice in an attempt to convince the Supreme Court to change its jurisdiction some time in the future, does refrain from the mere technical act to endorse the decisions of transferal anew, but this time by the Minster of Justice in person. This step would eliminate all uncertainty in the cases that still are awaiting judicial decisions and would in no way hinder to access judicial review about other cases of the past, as it might be contended that in the light of the Supreme Courts ruling open questions should actually have remained.

The result of the strategy of the Ministry of Justice seems to be very serious, firstly and foremost for the people who seek justice in courts. Many people living in the area of jurisdiction of several courts have no access to justice as the judges that would be competent for their cases have not been properly assigned to the courts. This amounts to a standstill of legal protection and infringes very basic functions of the rule of law. Medel believes that in all urgency this situation should end.

Additionally, in times of scarce funds for the judiciary, when all kinds of efforts are being made to try to increase the efficiency of the justice system and the state lacks the monetary resources even for the automatic adaption of judges wages – although they are laid down in the law –, it is hard to accept that hundreds of judges are excluded from judicial functions for months, which results in a major, unprecedented and completely useless loss of workforce of judges.\

The Supreme Court not only has the function to deliver binding decisions in individual cases. As a supreme court it also has the function to provide guidelines for the Judiciary, even if this may technically not be binding on other individual cases, as this is needed to foster the equal application of the law and the consistency of the legal system. The other powers of the state need to pay due respect to this function of the Supreme Court as well.

Last but not least the legal position of hundreds of judges as soon as possible should be clarified by appointment of them in a due course, instead of increasing the pressure on them with more and more time passing without an undisputable assignment to a specific court.

MEDEL therefore believes that the Minister of Justice of the Republic of Poland will take all appropriate steps to resolve this difficult situation as soon as possible.

António Cluny
President of MEDEL
21 November, 2013

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