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How were court chiefs sacked? HFHR reports

A past-dated, one-sentence decision, sent via fax and issued without any comprehensive assessment of the situation within a court: this is how the Minister of Justice was dismissing presidents and deputy presidents of courts from August 2017 to February 2018, reveals today’s report of the Helsinki Foundation for Human Rights.

What’s been reported?

From the end of December 2017 to mid-March 2018, the HFHR conducted 20 face-to-face interviews with presidents and deputy presidents of courts dismissed by the Minister of Justice pursuant to the July 2017 amendment to the Courts Act. According to the conclusions of the report, the dismissal process has not been based on any comprehensive assessment of the situation within courts, new presidents have been often appointed for reasons other than merit, and the changes are unlikely to contribute to the improvement of the effectiveness of the justice system.

Dismissal of court presidents and deputy presidents

Almost all interviewees (19) expected to be relieved from their duties. In four cases, interviewed jurists knew that their dismissals were likely not only because of the adoption of the amended rules but also based on the “signals” they had received from their peers at the bench.

“Before the dismissal, one of our interviewees received five phone calls from other judges he knew, who told him about having been approached by persons purporting to have connections to the Ministry of Justice with a proposal of taking over the soon-to-be-dismissed judge’s post. All five refused”, says Małgorzata Szuleka, an author of the report.

The interviewees were dismissed on the basis of decisions transmitted by fax. In all cases, the dismissal had a retrospective date, which caused uncertainty as to the validity of dismissed presidents’ decisions taken in the period between the original dismissal date and the date when dismissal decisions were delivered, which was usually one day.

In the majority of cases, a dismissal was accompanied by an appointment of a new president of the court. According to the interviewed jurists, there were no consultations with judges concerning the search for candidates for new presidents, who in turn have been selected based on, among other things, social connections and non-professional criteria. “Given the dynamics of the changes and relevant releases published on the Justice Ministry’s website, it is likely that court presidents were not replaced until a substitute was found”, Ms Szuleka notes.

Amended laws versus procedural efficiency

Contrary to official declarations, none of the changes brought about by the amendment to the Courts Act actually addresses the key problems that the justice system faces. “The Ministry justified the changes claiming that they are necessary for expediting the processing of cases pending in courts”, says Dr Barbara Grabowska-Moroz, the other author of the report. “However, a change of a court’s president will not expedite proceedings, as opposed to, say, the filling of judicial vacancies. Since the end of 2016, the number of such vacancies has been snowballing but the Ministry refuses to open competition processes, Dr Grabowska-Moroz adds.

As the authors of the report conclude, given the absence of a connection between the introduced changes and crucial problems affecting the justice system, it may be argued that the amendment to the Courts Act has not been preceded by a sufficiently accurate analysis of the situation within the justice system.

Effects of Court Act amendment

The findings of the report show that the amendment to the Courts Act will not expedite court proceedings. A vast majority of the interviewees said that new presidents had promised to follow the management model employed by their predecessors.

The amendment may also decrease the protection of the independence of courts and judges. “There is no politicisation of courts to speak of, but one may well argue that the amendment creates a mechanism that enables politicians to tinker with the operations of the justice system”, Dr Grabowska-Moroz warns.

The HFHR report includes recommendations for bodies such as the European Commission. According to the Helsinki Foundation, the Government’s full roll-back of the 2017 “reforms” of the courts system should be considered a sine-qua-non condition of the compliance with the recommendations presented by the European Commission under the rule of law framework.

The HFHR will continue monitoring the effects of the changes to the justice system. “In autumn, we plan a follow-up study, which will involve, among other things, interviews with dismissed heads of court divisions as well as an analysis of the random case assignment system”, says HFHR Deputy President Maciej Nowicki.

The report is available here.

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