For the period of the epidemic and one year after its completion, civil courts are to rule in a single-member and without the participation of jurors – says the bill of 28 May 2021 Driver two labour law cases court – who previously examined them in the composition of the judge and two Jurors - asked the RPO for a position, knowing his earlier speech to the Minister of Justice on the matter of jurors.
The RPO joined both courts. He pointed to the blatant violation of rights and freedoms by the legislative authority and the violation of the Constitution and of the European Convention on Human Rights.
The Court of First Instance should therefore examine both cases in its existing compositions, involving jurors; the new provisions can only be applied to cases brought after their entry into force.
According to the RPO, the conflict between the provisions of the Act and constitutional standards and the international agreements resulting from the binding Poland should be resolved by giving priority to the ECHR (Article 91(2) Constitution).
- Another interpretation would be the triumph of flawed parliamentary legislation over constitutional principles and interpretation of regulations in accordance with the Constitution and international law. The settlements of both cases in court without jurors would threaten to invalidate the proceedings," writes PO spokesman Marcin Wiązek to the court.
What's the matter?
District Court of P. leads two civil cases for unlawful termination of the employment contract without notice. Composition of the court in these cases to 2 July 2021 were composed of a judge and two Jurors - according to existing laws.
Meanwhile 28 May 2021 The Sejm passed a revision of the Code of Civil Procedure according to which these proceedings should be conducted from 3 July 2021 by one Judge.
The law states that in the first and second instance, the court shall examine cases in the composition one Judge; President of the court may order the examination of the case in the composition third Judges, if they consider it appropriate due to the particular complexity or precedent of the case. It's supposed to last a year since the pandemic ended.
The court found the involvement of the RPO in these cases necessary.
The Court of First Instance referred to the position of the RPO from its address to the Minister of Justice from 13 July 2021 The Ombudsman pointed out that the introduced law with 28 May 2021 limiting the participation of jurors in the ruling is unconstitutional. It also deprives society of important procedural guarantees. And change cannot be justified by an outbreak.
The RPO therefore presents its position to the court on the implementation of the constitutional right to court (Article 45(1) Constitution). He believes that:
Article 15zzs1(1)(4) Act dated 2 March 2020 specific prevention, prevention and eradication solutions COVID-19, other infectious diseases and the resulting crisis situations - in the wording given Article 4(1) Act on 28 May 2021 amending the Code of Civil Procedure and some other laws - is incompatible with Article 45(1) with regard to Article 31(3) Constitution of the Republic of Poland, Article 182 The Constitution of the Republic of Poland and is also incompatible with Article 6(1) the European Convention on Human Rights;
Article 6(1) Act dated 28 May 2021 amending the law – The Code of Civil Procedure and some other laws is incompatible with the principle of citizens' trust in the state and the law resulting from Article 2 Constitution of the Republic of Poland.
Position of the RPO
According to the statement of reasons for the amendment, it was dictated by the epidemiological threat “that they pose to each other three persons sitting together in a court of law.’ She stressed that "there is no objective and verifiable data to accept that a judgment given in storage one The judge is less just than issued in an enlarged lineup, or that the case was less thoroughly investigated by one Judge than third”.
During legislative work in the Sejm, the draft raised doubts. first The President of the Supreme Court pointed out that even in a state of epidemic it would not be appropriate to maintain the principle of the recognition of certain cases (both by the court of First and Second instance) in the collegiate composition.
The Supreme Bar Council also noted that this regulation was incompatible with Article 2, Articles 42(2) and 45(1) and 2 Constitution. The opinion of the National Chamber of Legal Advisors highlighted the question of the guarantee nature of civil procedure rules and possible problems in practice that could even result in the annulment of proceedings.
RPO, NRA, Association of Polish Judges “Iustitia”, National Association of Administrative Judges, Association of Judges “Themis” and Association of Prosecutors “Lex Super Omnia” in the published 7 July 2021 The memorandum on the right of a citizen to court indicated, among other things, that under the pretext of fighting the coronavirus, unconstitutional solutions are being introduced at the moment when public activity is being defreed. And the changes eliminate the principle of the collegiability of judicial formations, also by abandoning the social factor in the form of jurors, as it provides for Article 182 Constitution.
The RPO draws attention to the principle of the protection of trust in the State and its rights, resulting from Article 2 Constitution. The CCC stressed that the principle of state loyalty to citizens means a ban on legal traps, promises without covering or sudden withdrawal of promises or established rules of conduct. It follows from this principle that citizens have the right to expect that legislation will not be changed to its disadvantage in an arbitrary and surprising way.
This is particularly important for the fundamental right of the individual to a court in a democratic legal state under Article 45(1) Constitution. Act of 28 May 2021 does not meet these criteria.
By introducing a change in the composition of the ruling in the law - provided for during the duration of the threat - the legislature showed a lack of respect for the constitutional rights of the individual and the basic constitutional standards of the democratic rule of law.
The legislator should have considered whether the constitutional values and principles do not prejudge the maintenance of the existing rules of case recognition in relation to the proceedings already in place – with a restriction solely to the new formation of the compositions after the entry into force of the Act.
The consequence of the change is legal uncertainty. The courts and judges are not sure of the composition of the cases: whether, by application of unconstitutional rules, they are liable to raise a plea of annulment by the parties - or whether they should take action to ensure respect for the Constitution and international law in the field of the right to court. In the Ombudsman’s opinion, it is appropriate to second solution.
The participation of jurors in judicial proceedings is due to Article 182 A Constitution that talks about the participation of citizens in the administration of justice. Juries have essentially equal rights with judges. Their participation allows for greater compliance of the ruling with the social sense of justice and minimising the risk of the judge's profession from the social sensation.
Contrary to the opinion of the drafter, collegiate examination by the court is essential. It serves to ensure that the court is just in the case. The collegiate examination should reduce the inaccuracy in determining the facts and the ruling should be the result of a discussion of the judicature, topped by a judgment.
The European Court of Human Rights has already pointed out that after the case has been assigned to the judge concerned and after the proceedings have been opened, the case must be examined by the same court until it is resolved. Otherwise, it's broken. Article 6(1) ECHR. He found it unacceptable that the change of composition was not limited by any procedure.
The freedom of the ordinary legislature in the design of judicial procedures does not mean the admissibility of arbitrary solutions, which, without any significant reason, restrict the procedural rights of the parties.
In turn, the Constitutional Court indicated that in the light of Article 182 It is not possible to exclude citizens completely from their participation in the judiciary or to restrict it so that it will have a symbolic character. The RPO shares this position of the TK (reference no. P 16/04).
The reduction of citizens' participation in justice should be done only for specific reasons under Article 31(3) The Constitution – and restrictions must not violate the essence of freedom and rights. For these reasons, the Law of 28 May 2021 violates Article 182 Constitution in relation to Article 45(1) with regard to Article 31(3) Constitution.
This amendment is subject to defects which render the proceedings in the light invalid Article 379(4) k.p.c. If the non-constitutional provisions of the Act are applied by courts, this may lead to the need to re-examine the cases to be investigated in the previous (until the entry into force of the Act of 28 May 2021), legal jury composition.
The rapid adoption of laws, the lack of public consultation, the failure to take account of expert opinions led to a situation where citizens cannot be sure of their rights and their legal situation.
We are dealing with a clear example of the violation of rights and freedoms by the legislative authority. Relatively uncomplicated employee cases which could be settled in the court of first instance, in connection with the dismissal of jurors from ruling by law with 28 May 2021, They gave the court serious constitutional doubts.
In the light of the conflict between the law and constitutional standards resulting from a binding international agreement, the court may decide either by addressing a legal question to the Constitutional Tribunal or by giving priority to the law of an international agreement such as the ECHR (Article 91(2) Constitution).
The court should therefore recognise cases by applying the conflict rule Article 91(2) The Constitution, on the basis of the procedural provisions which were in force on the day of the initiation of the procedure in the case - because of the need to protect constitutional values brought about by Article 2 Constitution and civil rights resulting from it Article 45.
Determination of the composition of the court Article 47(2)(1) k.p.c. has not been removed from the law system. Act of 28 May 2021 ordered only - for the time of the emergency and for a year later - to replace it with another statutory provision, otherwise shaping the composition of the court.
Due to constitutional principles and values and the standard of the right to court, under Article 6(1) However, the ECHR should assume that the new regulation can only apply to cases initiated after the date of its entry into force, but no longer to ongoing proceedings.
Only this interpretation of the laws allows respect for international law, constitutional standards and the rights of individuals. The adoption of a different interpretation would mean not only a violation of the basic standards of the democratic rule of law and civil rights. This would also be the triumph of defective parliamentary legislation over constitutional principles and the interpretation of laws in accordance with the basic law and international law.
The court may consider asking a legal question to the Constitutional Tribunal. This mechanism should only be used if the court does not have the means to handle the case itself.
A according to Article 91(2) The Constitution's international agreement ratified with the prior agreement expressed in the Act shall take precedence over the law if that law cannot be reconciled with the agreement. This agreement is the ECHR.
Such an interpretation Article 6(1) The ECHR, resulting from the ECHR case law, allows for the adoption of the need for the court to rule in jury composition - because it is not possible to reconcile with the Convention the ruling without the participation of jurors, but only in the newly formed composition one Judge.