The role of judges and courts is to administer justice and, colloquially speaking, to administer justice. Due to the essence of this area of social life, it is crucial to entrust the performance of this function to the appropriate group of people, equipping them with the appropriate instruments beforehand. It is therefore necessary to create guarantees, functionally interrelated to ensure the status of judges, in which they will make decisions in an independent manner. The special status of judges is indicated by a number of institutions that translate into the realization of the right to a court, contained in Article 45 of the Constitution. These include: a specific form of official relationship, formal immunity, the right to adequate remuneration, non-normal working hours, retired status, and restrictions on transfer to another court. It is these aspects, among others, that make up the characteristics of a judge’s status in a democratic state of law.
The status of a judge is regulated at both the statutory and constitutional levels. Particularly relevant regulations are Articles 178-181 of the Constitution and the provisions contained in laws on the functioning of the courts (in particular, the Law on the System of Common Courts; hereafter, p.u.s.p.). It is worth emphasizing that it is the provisions of the Constitution that will be crucial in terms of clearly defining the structure, system or scope of operation of the courts and, finally, the status and systemic position of judges. Interestingly, in terms of regulating the functioning of the judiciary, the Basic Law is distinguished by its specificity, sometimes disappearing in favor of general or programmatic norms. Judges have been identified as the only professional group whose working conditions (especially salary) are defined at the level of the Basic Law.
It is possible to define judicial independence by interpreting Article 178(1) of the Constitution, which states that judges are subject only to the Constitution and the laws. On this basis, it is possible to identify further rules (already generated in doctrine and jurisprudence), stipulating the prohibition of any influence on the judicial activity of a judge through political factors or superiors. These elements are a guarantee to ensure the effective realization of the right to a fair hearing by an independent, impartial and independent court, which is an elementary right enjoyed by an individual in a democratic legal state.
In addition, the preservation of independence is to be supported by solutions introduced at the statutory level. As the Constitutional Court has repeatedly pointed out: respecting and defending independence “is a constitutional duty of all bodies and persons coming into contact with the activities of the courts, but it is also a constitutional duty of the judge himself” (CT judgment of April 16, 2008, K 40/07). Although this has been occurring in public discourse recently with superfluous frequency, it should be unequivocally described as a misconception of the institutions indicated above as privileges of a certain professional group. This demonstrates a misunderstanding of the essence of the status of a judge in a democratic state of law.
According to Article 179(2) of the Constitution, judges are appointed by the President of the Republic of Poland at the request of the National Council of the Judiciary for an indefinite period of time. Article 65 of the P.U.S.P. stipulates that with the delivery of the act of appointment, a judge’s official relationship begins. However, it is difficult to create a definition of it – it lacks at least a legal definition. Due to the peculiar nature of the work performed by a judge, it should be assumed that the employment relationship in which he finds himself will be the sum of his activities related to the administration of justice (the public law aspect) and labor rights and obligations (in the aspect of labor law). Undoubtedly, the official relationship of a judge is dominated by the public-law aspect, enriched only by elements of the employment relationship (e.g., the bond between the judge and the specific court where he is employed or the president of that court as his official superior). For this reason, it is argued in the doctrine that the employment relationship of a judge is excluded from the regulation of the Labor Code. It is unjustified (and, moreover, impermissible) to apply by analogy the provisions on the relationship between the judge and the state from at least a contract of employment, concluded between an employee and an employer. However, it is impossible not to see the private-law aspect of the judge’s activity, who can naturally before the ordinary courts to assert the protection of his subjective rights (for example, in the case of failure to grant leave). The defendant will then be the particular court in which the judge performs his official duties – represented by its president. Thus, it will be neither the President, the Minister of Justice or the NCJ. It is difficult to unequivocally assess in what proportions the official relationship will be formed by elements typically of public law – the exercise of judicial authority, and how much related to the employment relationship.
Certainly, it is when not exercising judicial power but clerical activity or being on sick leave that public-law elements remain marginalized. In contrast, a completely different relationship arises when a judge is directly responsible for the administration of justice. When conducting a case or issuing a judgment, the systemic regulations of the judge’s status (independence) will be absolutely paramount, while labor law elements (which could potentially violate it) remain muted. From the point of view of the independence of judges, the key issue will be the extent of subordination in the official relationship. The Law on the System of Common Courts clearly stipulates that a judge is obliged to carry out the orders of a superior only with regard to administrative activities, if by law they belong to the duties of a judge, and with regard to the efficiency of court proceedings (Article 79 of the P.U.S.P.). A contrario, it would be completely inadmissible to suggest an order from a superior or anyone else when issuing a judgment. The question is how far-reaching the orders of procedural efficiency can be. This is a rather broad concept – even if the superior will not influence the outcome of individual cases, he can actually interfere in the judge’s activities by way of an official relationship. The creation of guidelines on the timing of the completion of cases or the obligation to hold a certain number of hearings in a given quarter seems very controversial, since it can indirectly influence the activities of the judge (even though the recommendations do not directly relate to the issuance of a specific judgment in a unitary case).
A judge’s official relationship
As a rule, the official relationship of a judge lasts for life. There is a possibility of earlier termination in the event of resignation from office or in special cases (e.g., sentencing to the penalty of removal from office, deprivation of public rights, loss of Polish citizenship). Many of the judge’s powers are also retained upon retirement – examples include the institution of immunity. At the statutory level, the content of a judge’s official relationship is defined, and there are numerous differences from the Labor Code regulations regarding remuneration, subordination to the orders of superiors or working hours. It is common to compare the status of a judge to the legal position of civil servants, police officers or members of the civil service corps. However, such a comparison seems inadequate due to the clear distinction of the judge’s status at the constitutional level. Regulations relating to the separation of powers or independence can be found in vain in the regulations on police officers or members of the government administration.
Allowing myself a digression, I would like to point out that recently there have been ideas to reevaluate the relationship between the efficiency or effectiveness of proceedings in the courts and the independence and independence of the judiciary. It should be emphasized that this is a dangerous trend from the point of view of the standards of a democratic state of law. It is difficult to even talk about weighing or juxtaposing these values. Indeed, independence is the essence of the office of a judge, and any changes in the efficiency of the judiciary should be made without any prejudice to it. As the Constitutional Court has repeatedly stated, the rules on efficiency of proceedings are not concerned with the exercise of justice – for this reason, for example, interference by the Minister of Justice at the level of administrative supervision is possible. However, supervision exercised in an inappropriate and excessive manner undoubtedly constitutes a premise that violates the independence of the court. Of key importance in this regard will be Article 9b of the P.U.S.P., which stipulates that administrative supervision activities may not encroach on the field in which judges are independent. Thus, supervisory activity cannot occur at the level of adjudication.
Another aspect that determines the peculiar status of a judge is the question of remuneration. It is shaped by law – as it is based on a multiple of a certain base amount. Significantly, the legislator decided not to differentiate the salaries of judges in the same positions but different in terms of the complexity of the cases conducted or their time consumption. Thus, it does not matter the number of cases conducted and the workload. In my opinion, this is an apt solution, as it eliminates the possibility of salary pressure from a superior (who could influence the number of assigned cases between individual judges). Equality in workload should manifest itself at the stage of efficient allocation of available resources, for example, by equalizing the burden of incoming cases. The introduced system of randomization of court panels seems to be an effective solution, intended to distribute incoming cases fairly, but unfortunately, due to its insufficient transparency, it should be approached with due caution. Thus, the remuneration of judges is completely objectified and devoid of the possibility of interference by at least the executive branch. Its amount is supposed to be one of many guarantees of independence. Thus, a judge is not (and cannot be) paid for conducting a specific number of cases and writing a specific number of justifications, but for holding office per se. One should also not forget the need to conduct considerations of judges’ remuneration in the context of ensuring the dignity of the judge’s office, which is introduced at the constitutional level. In its judgment of December 12, 2012, the Constitutional Court stated that: “The remuneration of judges should be shaped in a way that excludes any discretionary power – both with respect to this entire professional group on the part of the executive power, and with respect to individual judges, with respect to whom it is unacceptable to make its amount dependent on an individual assessment of their work” (K 1/12). This is a continuation of the established line of jurisprudence, evident, for example, in cases ref. P8/00 or SK 11/11.
Working time of a judge
The working time of a judge is another premise that distinguishes this profession from others functioning in the public service. The lack of a relationship between working time and salary was pointed out by both Constitutional Court and Supreme Court rulings. According to the Supreme Court resolution II PZP 2/09: “A judge of a general court is not entitled to additional remuneration under the rules of Article 1511 of the Civil Code in the event that he or she provides work in excess of the working time standards established in Article 129 § 1 of the Civil Code.” The regulation of a judge’s working time can be found in Article 83 of the Civil Procedure Code. – “The working time of a judge is determined by the dimension of his tasks. Thus, here there are no binding instructions from the employer – the judge himself is responsible for determining the appropriate amount of time to perform the tasks assigned to him. It will not be trivial to say that a judge is not obliged to provide work at fixed hours or a specific place. Naturally, this does not apply to activities such as conducting hearings, due to their specific nature. It should be added that it is common practice for judges to prepare for cases and write justifications at home. This is not surprising – the nature of a judge’s work undoubtedly requires appropriate intellectual competence. Due to the degree of complexity or complexity of cases, it is necessary, at least, to familiarize oneself with the body of case law, accepted in the jurisprudence (not to mention the need for subsumption, which is an essential part of the judge’s work). This does not negatively affect the merits of the conduct of court cases. The adopted regulations are the result of the historical direction of the development of the judicial profession and the recognition of the institution as the performance of a public service with enormous responsibility. Hence, the risk of excessive workload has been correlated with the following privileges, such as the right to annual additional leave (six or twelve days – depending on seniority, Article 92 of the P.U.s.P.), jubilee gratuities, paid leave for recovery. The key regulation remains the right to retire contained in Article 100 of the P.U.s.P. Repeated questions to the Constitutional Court about the constitutionality of regulations on a judge’s working time have become a cause for consideration of the judge’s status per se. Taking into account the necessary constitutional context, as in the case of the institutions discussed above, the Court considered working time regulations as serving to safeguard the independence of the judiciary as an element of the guarantee of citizens’ right to a court. At the same time, it is a development of the phrase “working conditions and remuneration corresponding to the dignity of the office and the scope of [judges’] duties”, which appears at the constitutional level. Thus, the inscription of the judge’s working time in a specific framework remains an aceviable task.
Building institutions. Building a responsible society
It seems that on the basis of the considerations made, it might seem pointless to point out again the unique role of the judge in society and for the functioning of the judiciary. However, given the state of society’s knowledge of the functioning of the courts, one is tempted to conclude that grassroots action in the form of explaining the essence of this very office contributes to building the institution of judicial independence and judicial independence. After all, it is the voters with their votes who decide on political representation in parliament, which can have a direct impact on the state of the rule of law in our country. Let us remember, therefore, that it is the Constitution, enacted in 1997, that obliges the legislature to create such working conditions for judges in which they can exercise their office, ensuring the realization of the right of every citizen to a court. Here the meaning of the principle of independence of judges is most fully expressed.