Does new mode of appointments of junior judges undermine triple division of power? HFHR’s opinion

The HFHR has presented the speaker of the Sejm with a legal opinion on a proposed amendment to the National School of Judiciary Act. The proposed amendment seeks to introduce changes to the procedure governing the appointment of associate judges. In the Polish courts system, associate judges are judges called to the bench for a trial period, directly after passing the judicial professional exam.

Under the currently applicable wording of the Common Courts Act, associate judges are appointed by the President of Poland upon request of the National Council of the Judiciary of Poland. Many candidates applying for the post of an associate judge are obliged to take part in a competitive procedure prior to appointment. The Government’s proposal substantially changes this situation.

New powers for Justice Minister

According to the proposed measures, associate judges are to be appointed by the Minister of Justice. Then, the Minister will be entitled to apply to the National Council of the Judiciary for entrusting a given associate judge with the performance of judicial duties. If the NCJ does not oppose the application within 30 days, an associate judge will assume nearly all duties of a district court judge. The only powers unavailable for an associate judge nominated in this procedure is the authority to apply pre-trial detention (however, this exclusion applies only to detention hearings immediately following a suspect’s arrest), authority to decide complaints against decisions that refuse or discontinue preparatory proceedings, and authority to adjudicate family and guardianship cases.

Concerns have been expressed over both the appointment process and the scope of associate judges’ judicial powers. “It seems that the transfer of this procedure to the purview of the Minister of Justice is a substantial indication of a possible violation of the constitutional trias politica principle, which is also a violation of the principle of independence of courts”, says Marcin Wolny, a lawyer working with the HFHR.

Simultaneous changes to laws on National Judiciary Council

The changes to the rules applicable to associate judges are even more disturbing given the perspective of the simultaneously debated amendment to the NCJ Act. According to the amendment, the National Council of the Judiciary of Poland is to be divided into two equal assemblies: one comprising mostly of representatives of the executive and legislative, and the other composed of judges selected by the Sejm from among candidates presented by the Speaker. This means that without the participation of the political stakeholders, the “reformed” NCJ will be unable to effectively oppose an associate judge’s appointment.

End to competitive selection of judges

The proposed amendment also provides that after three years on the job, associate judges obtain the right to apply for the post of a common court judge without the need of going through a competition process. Still, they will be obliged to receive the approval of the newly structured NCJ, hence also the Council’s assembly comprising of the appointees of the legislative and executive. This poses a reasonable threat to the internal independence of associate judges. This is because it may happen that certain associate judges be concerned over the negative reactions of politicians to their rulings and the consequences of such reactions for their professional careers.

Can “new” associate judge order pre-trial detention?

Associate judge’s authority to apply pre-trial detention is another point of concern. It is all the more true given the fact that the current law does not empower associate judges to exert such authority. Without a doubt, the young age of newly appointed associate judges and the absence of professional and life experience constitute an important argument in support of a stricter approach to associate judges’ authority to apply custodial preventive measures.