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Legal basis for functioning of courts – appeal to National Council of the Judiciary

At the beginning of 2013, regulations of the Minister of Justice concerning, inter alia, abolishment of selected district courts, entered into force. Doubts have been reported whether, in the light of the new regulations, common courts in Poland have a legal basis for activity after 1 January 2013.

The HFHR has appealed to the National Council of the Judiciary to consider filing a motion to the Constitutional Court in order to verify the constitutionality of the regulations.

The Courts Act grants the Minister of Justice the authority to create and abolish courts as well as establish their seats and jurisdictions by means of regulations. At the beginning of 2013, two regulations by the Ministry entered into force: one on the abolishment of selected district courts and the other one on seats and jurisdictions of courts (including courts of appeal, circuit courts and district courts). The regulations repealed the previous regulations of the Minister of Justice from 2002 on the system of common courts.

In January 2013, doubts concerning the legal basis for court operation after 1 January 2013 were reported by “Iustitia”, the Association of Polish Judges. In the Association’s view, the regulation “does not establish any court. Neither does it refer to any previous legislation on establishment of courts. The regulation which contained the relevant reference was repealed by the new regulation. This means that since 1 January 2013, there has been no binding legislation establishing common courts in Poland apart from further regulations amending the regulation from 16 October 2002.” Consequently, from 1 January 2013 onwards “only one court of appeal, four circuit courts and 21 district courts have a legal basis for operation”.

In its appeal to the National Council of the Judiciary the HFHR indicated that the legislation in force after 1 January 2013 may also be interpreted differently, i.e. that in order to liquidate a court a separate decree is necessary. In this line of thinking, merely stating that the regulation establishing the abolishment of a court “is repealed” is insufficient.

“Repealing a regulation establishing a court does not result in the court’s liquidation, if it is not accompanied by a relevant regulation”, says Michał Szwast, HFHR’s lawyer. “According to this interpretation, establishing and abolishing a court may be seen as a singular act of application of law, although it is effected in the form of a regulation”, explains Michał Szwast.

The HFHR emphasised in its appeal that from the point of view of protection of human rights and freedoms the situation where the legal basis for functioning of most common courts in Poland is seriously questioned and interpreted inconsistently is not welcome. “One may imagine a situation where there will be attempts at undermining the legitimacy of the judgments issued after 1 January 2013 on the grounds that they were issued by a non-existent court. This may lead to a paralysis of the judiciary”, adds Mr Szwast.

The HFHR assessed that the current provisions fundamental for the functioning of common courts in Poland may infringe the following constitutionally guaranteed rights: the right to a hearing of one’s case before a competent court (article 45 (1) of the Constitution), the principle of statutory regulation of the courts’ organisational structure and jurisdiction and judicial procedures (Article 176 (2) of the Constitution) as well as the principle of clarity and definiteness of law derived from Article 2 of the Constitution.


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