IMPLEMENTATION OF COURT ADMINISTRATION AN EXAMPLE OF POLAND
UDK347.97 / .99 (410): 061.1YES
Ivan Nazarov, Doctor of Law, Associate
Professor of Department of judicial and law
enforcement authorities of Yaroslav Mudryi
National Law University, Kharkiv
IMPLEMENTATION OF COURT ADMINISTRATION
AN EXAMPLE OF POLAND
This article analyzes main trends of the judicial reform in Poland in the field of court administration. The attention is given to persons occupying administrative posts in the courts, an order of their appointment, and scope of their powers, an order of interaction among themselves and with other court staff. Special attention is given to the Minister of Justice of Poland and his powers in the field of judicial administration.
Keywords: judicial system, judicial power, court, court administration, organization of the court's work, organizational support of court's activities. .
After Poland got rid of Soviet influence, one of the main objectives for the country became the formation of the independent judiciary, which was reflected in the constitutional reform of 1989, and culminated with the adoption of the Constitution of the Republic of Poland in 1997 [ 1], which acts till today. However, the judicial reform continues and one of its main directions is to raise the efficiency of the court's work in order to develop new forms and mechanisms of court administration.
Peculiarities of administrative jobs in the court, questions of management and organizational support for courts were considered in the works of such scholars as V.D. Bryntsev, O.Y. Dudchenko, O.M. Kurilo, M. Lazhyha, L.M. Moskvich, S. Obrusna, S.V. Prilutsky, D.M. Prytyka, V.V. Serdyuk, A.A. Stryzhak, S.L. Sharenkota, and others. Since the reform of the judicial system in Ukraine is also continuing, there is a need to analyze the issues of judicial administration in foreign countries, since abroad these problematic issues became was studying for much longer periods. For example, in Poland the activity in order to improve the quality of justice and the judiciary was started in 1999 by the implementation of the quality management system based on ISO 9001: 2000, developed by the European Union for all new members [2, p. Standards define the basic rules, procedures, guidelines, according to which management is organized in various fields, particularly in the judiciary.
Ukraine is only starting to research issues of court administration. It's clear enough, that the attention to issues of judicial administration, court administration, organizational support of their activities in general and in particular, provision with personnel, were raised many time before. This theme is reflected in National legislation. Various aspects of this theme have been explored in works of Ukrainian scholars. Still, the attitude of civil society, which now is actively emerging in Ukraine, towards the judicial power, concepts and meaning of justice, social responsibility of courts before society, all this require appropriate changes in understanding and organization of court's work.
Legislation and scientific publications previously used different terms to refer processes covered now by the term "court administration."
Analyzing historical aspects of problematic issues, O. Dudchenko notes that the term "court management" first was used in Article 8 of the Basic Laws of the USSR and the Union Republics on the Judiciary as of October 29, 1924.Then it was replaced by "organizational governance of the courts," and at the end of the 80's was changed on the "organizational provision of courts activity" Although these terms originated in different times and by nature have to change each other, they are now used in the legal literature [3, c. It's clear, there is no practical need in using a large number of terms describing the same processes and phenomena, and now it is time to optimize the conceptual framework in the sphere of court's work organization separately as a court and his apparatus.
To begin, it would be good to define the content that may characterize the term "Court administration".
N.I. Glazunova, exploring the problems of public administration indicated that the public administration, actually is the practical activity of state bodies, in process of preparation, adoption and implementation of administrative decisions, both methods and means by which fulfil its tasks the state and its agencies at various levels, carry straight, systematic and focused on influence of government on subordinated bodies and objects, based on administrative responsibility for the implementation of decisions [4, p. 10].
Very often in the literature, the attention is devoted to problems of management relations in the judicial system, the notion of "organizational provision of courts", which is identified with the court management, or has some differences by the subject. For example, S.Y. Obrusna indicates that the term "judicial management" includes as organizational activities of court management, as well as organizational support of courts. It is more widely covers all the direct management activities in the judicial field [5, c.18]. D.M. Prytyka under the judicial management understands the activity that is not extended to justice exercised by the court, and related to the processes of organization the judiciary, the selection of judges, stipulation of assessors; personnel administration of the judiciary; inspection of organizational issues of judiciary; research and summarizes court practices; court statistics and data maintaining [6, p. 174].
A.A. Stryzhak believes that "judicial management" describes not only activities of the judiciary authorities, but also an external for the judiciary entities (the Verkhovna Rada of Ukraine, the President of Ukraine), it has complex nature and includes current development of the judicial system of Ukraine, as the organizational activity on courts management, as well as courts organizational provision and implementation of the appropriate statutory functions (HR) in respect of the judiciary [7, c. 29].
Even further the development of the conceptual frameworks in the mentioned problematic issue goes O.Y. Dudchenko, who justifies the need to use term "court administration", which should be understood as a purposeful practical activity of persons on administrative job in a court and securing certain element of the judiciary, consist of the process of improvement, adoption and implementation of management decisions in order to ensure the proper functioning of the court for the effective administration of justice.
So, with the bigger part of definitions we cannot but agree and conclude, about necessity to use, as the term "judicial administration", as well as "court administration" for a clearer definition of the subject of administrative authority. These terms are more "tolerant" comparing to "judicial management", which may raise the question of the independence and autonomy of the judiciary in the performance of its activity. At the same time, it is necessary to keep in use the term "organizational provision of courts", while its meaning has some differences, and reveals some other processes in the functioning of the judiciary.
The complexity of terminology, that might characterize those aspects of the court’s activity, that are not directly related to the administration of justice, is also explained by the different opinions on the similar processes, their definitions and normative regulation in foreign countries. Quite often, they are absolutely different from national, but herewith, corresponds the so-called international standards in matters of judicial power. As an example let's consider the nature of the settlement of court administration matters in Poland. First of all, legislator of this country pays attention to the list of administrative jobs in courts, the nature of their powers and the order of their interaction, requirements for persons who may occupy such positions, the submission procedure, and measures of an external control over these processes.
Speaking of the latter, we should mention, that in the Law "On General Courts" of Poland  (hereinafter - the Law) stipulates not only the provisions concerning independence and autonomy of courts, but also refers to the control over court activities, which is divided into two types. That is that the control over the court's activity, if it refers the administration of justice should be performed by the Supreme Court in accordance with legal procedures. However, as separate is allocated the administrative activity of courts, which combines, in our understanding, the judicial self-government activity (in Poland it is not as actively expressed and presented as in Ukraine) and organizational provision of courts, what consists in ensuring courts the proper conditions to perform tasks, assigned to the judiciary by society and government. Administrative activity of courts shall be performed as by judicial authorities, as well as by non-judicial. In some cases, the law establishes a duty to perform certain types of administrative activity exclusively by judges. Control over the administrative activity of courts is governed by the Minister of Justice personally and by the competent authorities. If it is about the supervising function over activity referred to the administration of justice, such a control can be carried out by judges only, temporarily delegated to the Ministry of Justice in order to perform these functions.
It should be noted that the Polish legislator separates terms "supervision over judicial activities" and "court administration", even in cases where the subject of the supervision and administration is the same. When it refers to court administration, primarily are mentioned persons on administrative jobs in the courts, the procedure for their appointment, competence, cooperation features. Thus, in all courts, persons commissioned with powers of administration are: the Chief of the court (the Head), Chief of staff (court administrator) and council of the particular court.
Administrative authority in court is divided between its Chief and Administrator. Powers of the Chief of court largely depend on the type of judicial institution. Regardless of the type of court, the Chief Judge is managing and representing the court, except matters within the competence of the court administrator; acting on exercising the court administration; is a professional leader among judges of the court; issue orders on the appointment and dismissal of judges in the court, in order stipulated by the Law.
The Chief of Regional and Appeal courts may exercise administrative control in the way of organizational provision for courts of lower jurisdiction (district, regional) within its competence.
The Chief of Appeal court shall be appointed by the Minister of Justice, under support of the candidacy by the general assembly of judges of the Appeal court. If, the general assembly shall not support this candidacy, the Minister of Justice, in this case can appoint him only in consultation with the National Judicial Council (the analogue of Ukrainian High Council of Justice). Deputies of the Chief of the Appeal court also subject to approval by the Minister of Justice, upon the submission of the Chief of the court and consent of the general assembly of judges of the court. The number of deputies is determined by the Minister of Justice.
Chiefs of Regional courts are appointed by the Minister of Justice among judges of Appeal or Regional court after consultations with the general assembly of judges of the Regional court and Chief of Appeal court. Deputies of the Chief of the Regional court are appointed by the Minister of Justice between judges of the Regional or Appeal court, on the request of the Chief of Regional court after consultation with the council of the court and the Chief of the Appeal court.
Chiefs of district courts also may be appointed by the Minister of Justice, although he has delegated this authority to Chiefs of Appeal courts, within the jurisdiction, where the respective district court is operating. Chiefs of the district courts are appointed between judges of a Regional or district court after consultation with the general assembly of the Regional court and with the Chief of the Regional court. Deputies of the Chief of district courts are appointed between the number of judges of district or Regional court on the request of the Chief of district court after consultation with the council of the Regional court and Chief of the Regional court. The number of deputies of the Chief of the district court is determined by the Chief of the Regional court (Art. 25 of the Act). This procedure shows that the district court judges have little opportunity to participate in the election of the Chief of own court and his appointment for judicial post may considered as a breach of the principle of unity and equality of the status of judges.
In the management issues of each court the Chief Judge has a dual subordination before the Minister of Justice, who appointed him for judicial post, and to the Chief Justice of the Supreme Court of Poland.
Discharge of Chief Judges and his deputies is also performed on the initiative of the Minister of Justice, in case if they refuse to perform their duties or their performance for some reasons interfere with justice, with the consent of the National Judicial Council of Poland.
Another court's manager is the court administrator. In the district, Regional and Appeal courts administrator is appointed by the Minister of Justice for the submission of the relevant court for the term of 6 years. Chief Judge organize competition to determine the best candidates for the ministerial office of court administrator. The contest is based on principles of openness, transparency and professionalism. Before deciding on the appointment of the Minister of Justice shall consult with the National Criminal Bureau. Regarding the candidate for ministerial office of court administrator the special verification should be initiated by the local police authorities in order to verify the following: a) cases of misconduct of the candidate; b) contacts with representatives of the criminal environment, antisocial groups and the nature of such contacts; c) circumstances indicating on the abuse of alcohol, drugs and other substances.
Polish law, unlike the Ukrainian one, has dentally defined requirements for candidates for the ministerial office of court administrator. Therefore it might be a person who: has a master's degree, work experience of at least 5 years, of which at least 2 years in senior positions; Polish citizenship and has no restrictions his rights; wasn't involved in criminal or financial responsibility; is not deprived of parental rights; has an excellent reputation, has theoretical knowledge and experience in finance, investment, management of state property; against whom there is no criminal proceeding initiated at the time of the decision on his appointment for the ministerial office.
The main duty of the court administrator is the effective budget management of the court. He is responsible for all financial affairs of the court, deals with issues of state property management of the court and in these matters subordinates to the Minister of Justice or the administrator of the high court. Administrator of Appeal court is responsible and takes control over the budget expenditures of all courts within the territory of jurisdiction of the appeal institution. The draft financial plan for the Appeal court shall be drawn by the court administrator with consideration of financial plans of district and Regional courts in relevant territories and submitted for approval to the National Judicial Council and the Minister of Justice.
Court administrator can be dismissed by the Minister of Justice after consultations with the Chief of relevant court. It should be noted that the opinion of the Chief Judge has no mandatory value for the Minister of Justice considering the dismissal, in contrast to the procedure for the court administrator office. Court administrator not subordinate to the Chief Judge, and is directly subordinate to the Minister of Justice.
The council of a court, at first glance, has signs of the self-government body, but it is not recognized by the Polish legislator, as well as general assembly of each court, unlike in Ukraine. To the self-government authorities belong only the General Council of Judges of Appeal court and General Council of Regional court (representing judges of the district and Regional courts in the relevant territory). But in respect to its core and the procedure of formation of the composition, the court Council is the executive body of the judicial corps of the separate court (analogue of the Plenum of the higher courts of Ukraine until 2010).
The Council of the Regional court consists of four to eight judges, who are appointed by the general assembly of the court, and the heads of the Regional court. The number of the Board members is determined by the general assembly of the court. The Council of a Regional court has the following powers to submit proposals on: allocation of responsibilities in the Regional court, judicial candidates, deputy Chief judges and leaders of the Regional court chambers and their deputies (assistants), inspectors and other officials of the court; on the issue of court's financing and other, consideration of applications and complaints on decisions and actions of the actions of court staff with administrative nature; consideration of violations by judges of ethical principles (Art. 31 of the Law).
In Appeal general courts the Council of the court consists of the judges of this court in the amount from three to five judges elected by the general assembly of the Appeal court and the Chief Judge, who is a member ex officio. The number of members of the Council of Appeal court is determined by the general assembly of judges of the court. The objectives of this trial include: (a) opinion at the request of the Chief of court regarding the distribution of responsibilities among the judges of the Appeal court, setting rules of replacement of judges, determination of the internal specialization, coordination issues regarding judicial candidates, deputy Chief judges and heads of chambers of the Appeal court and their deputies (assistants), inspectors and other officers of the court, the financing of the court (b) applications and complaints review on decisions and actions of management of the court, that have administrative nature; (c) consideration of violations by judges of ethical principles; (d) issues of interaction between the court staff and judges of the court; (e) expression of position concerning the budget of the court and other (Art. 29 of the Law).
Certain specific has court administration and organizational support for judicial activity in military courts.
Since military courts are created by the decision of the Ministry of National Defence of Poland after consultation with the Minister of Justice and the National Judicial Council, all these bodies have some supervisory authority over the organization of its work. Judicial review of the military courts activity is performed by the Military Collegiums of the Supreme Court of Poland. And in administrative review of military courts is in the competence of Department on military courts by the Ministry of Justice. The Minister of Justice reports to the President of Poland and the Parliament on the state of the military courts of the country. Supervision over the order of bearing soldiers military service in military courts governs the Minister of National Defence (Articles 5, 6 of Poland "On military courts"). Furthermore, the Minister of Justice together with the Minister of National Defence decide the organization of the military courts and determine management procedures, specifying methods of supervision over their activities, adopting rules of archives in military courts, determine the number of judges in military courts (Art. 18 of the Law of Poland "On military courts").
The most powerful non-judicial body which has administrative authority for organization of court's work in Poland is the country's Minister of Justice. He concentrated considerable authority in the judicial system and the functioning of courts of Poland. According to Article 20 of the Law of Poland "On military courts" Minister:
1) regulates issues related to the establishment and liquidation of courts, determines their location and jurisdiction;
2) may delegate one regional or district court an authority to hear labor disputes, cases on social insurance, commercial disputes, cases involving compliance verification reports about the actual state of affairs, family disputes, land, juvenile proceedings or other proceedings, belonging to the jurisdiction of other similar court of the same judicial district;
3) may delegate one District Court the right to hear the case, which is in the jurisdiction of municipal courts within the jurisdiction of more than one district court, acting within the same judicial district.
Nevertheless, all these powers of the Minister of Justice can’t be implemented without prior compulsory consultation on the relevant issues with the National Judicial Council. Let's note that the Minister of Justice appoints Chiefs of courts and court administrators.
As we can see, there are significant differences in matters of court administration between Ukraine and Poland as by the subjects of these activities, as well as by their powers. For example, the corps of judges of Ukraine had a long struggle for the deliverance of the Ministry of Justice of Ukraine of powers on organizational support of the judiciary and the establishment of an independent body for such purposes (The State Court Administration). In Poland, the Minister of Justice has very wide powers in this area. Chiefs of the higher courts in Poland have certain administrative powers regarding lower courts. In Ukraine, deprivation of Chief Judges of the respective powers is regarded as an achievement in ensuring the independence of the judiciary.
But in general, the European Union considered that the nature of reforms in the judiciary and judicial administration of Poland for years 1998-2014 is sufficient, the process of accession to international conventions and European standards in the field of judicial cooperation is ongoing stable. At the same time it is noted that Poland should pay attention to the efficiency of the judicial system and qualification of judges in European law, to continue the fight against corruption among the corps of judges [10, p]. In general, the legislative regulation of judicial administration in Poland has no observations from the side of European Community.
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