The judges of peace in the Polish judiciary are the right initiative. However, as always – the devil is in the details.
The draft bill on the courts of peace and the draft bill – Provisions introducing the bill on the courts of peace from the Ministry of Justice came under the wing of the Chancellery of the President, where under the direction of Professor Piotr Kruszyński were developed and directed to the Sejm, which accepted the proposal.
The introduction of peace judges is intended to speed up proceedings in minor criminal matters, in criminal matters and in civil matters. However, it raises considerable concerns, and the arguments raised against it highlight, above all, the inability to provide independence to new decision-makers.
With the degree of complexity of the law, formalized procedures, the judges of peace are not a remedium at all. These are times when you better invest in SI
Designed solutions
The proposed solutions assume the introduction of peace courts as the lowest level within the universal judiciary (a level below regional courts).
Peace courts will be ruled by peace judges, elected by the local community in general, direct and secret ballots, having legal education and at least three years of experience in carrying out activities requiring legal knowledge directly related to the provision of legal assistance, application or creation of law.
The judge of peace will have to be finished. 29 years at the latest on election day and not more than 70 years on the day of taking office as judge of peace. The judges of peace will serve as judges for six years.
The President of the Republic of Poland will be appointed to serve as judge of peace at the request of the National Judicial Council.
According to the project's assumptions, the magistrates of peace could rule in minor criminal matters and in criminal offences, among others, for crimes to 10,000 PLN, in cases against property, but provided that the case does not require the appointment of experts and is simple evidence.
A former peace judge may take a professional bar exam, notarial, counsellor, judge, prosecutor without requiring an application.
No Independence Standard
Professor Piotr Kruszyński points out that, contrary to the original draft of the Ministry of Justice, the planned changes do not require modification of the Constitution. It refers to the Constitutional Court’s ruling from 24 October 2007 concerning asessors, which he believes can be dealt with more broadly.
It states that the decision-makers do not necessarily have to be judges, they may also be other entities, if the condition of independence is met, and so must be a separate organisational structure so that these entities are not subject to state or local administration authorities.
In this regard, Andrzej Dera of the President’s Chancellery also calms down, stating that “it cannot be that judges decide for themselves, even because of the tripartition of power. Controls over peace judges are to be exercised by citizens and no one can deprive them of their right of control."
However, there are no lack of votes that state that in the current realities it is not possible to ensure the independence of peace judges, and their choice directly by citizens is a fiction, mainly because there is no tripartition of power in Poland. The Warsaw District Bar Association speaks about this in its statement.
"It is necessary to select the judges of peace with the current National Judicial Council – we read in Position No.
1 Warsaw District Bar Council of 1 December 2021 – The current rules on the National Judicial Council and its composition are incompatible with the Constitution of the Republic of Poland and, as violating the principle of tripartition of power, have led to a restriction on the independence of the judiciary in Poland.
The National Judicial Council was deprived of the characteristics of a constitutional body.
This was confirmed, initially in the ruling of the CJEU with 19 November 2019 C-585/18, C-4/18 C-625/18, and then in the decisions of the Chamber of Labour and Social Insurance of the Supreme Court of 5 December 2019 and 15 January 2020, and in the resolution of the Joint Civil, Criminal, Labour and Social Insurance Chambers of the Supreme Court of 23 January 2020 BSA 1-4110-1/20.
The KRS is therefore not an independent body and the judges appointed by it are not entitled to judge. Poland is guilty in first align the rules governing the institutions of the National Court Register with European standards and resulting from the Constitution of the Republic of Poland."
Krzysztof Paszyk, PSL, convinces that peace judges will be elected during local elections, which will rationalise costs and ensure the independence of this institution. The opposite view is the lawyer Eliza Rutynowska, who pointed out that the call procedure in the general election would precede the fight for votes. It also raises the KRS's theme: "they will be called upon at the request of the neo-KRS, so it will be an entity with no independence".
Judge Olimpia Baranska-Maluszek recalls the example of Italy, in which this institution was introduced as a remedy for inefficient judiciary.
Effect – 3 instances, lack of efficiency and quality improvement, although the requirements for peace judges higher than in Polish projects, non-compliance with EU law, lack of standard of independence.
The judge points out what could actually speed up the proceedings: “With the degree of complexity of the law, the formalized procedures, the judges of peace are not a remedy at all. These are times when you better invest in SI and play a few million cases through SI. With human control.’