Konferencja „Kierunki reform sądownictwa w społecznych projektach ustaw Stowarzyszenia Sędziów Polskich IUSTITIA”, Senat RP, 25.4.2024 r.

Kees Sterk, Professor of Administration of European Justice at Maastricht University

Some reflections on judicial self-administration based on my experiences as vice-president of the Council for the Judiciary

Fellow members of Iustitia,

Ladies and gentlemen,

Introduction

Almost nine years ago, I was invited by the president of the KRS to visit Warsaw, not for joyful festivities, but to share a concern about the future of the independence of the Polish judiciary. It was the start of a wonderful cooperation between friends with a common goal to fight for judicial independence in Poland and Europe. During the last eight years our common fight endured many downs, but we also saw the birth of judicial cooperation and solidarity between judges from all over Europe.

So, I am happy, indeed, to be in Warsaw again, and, this time, for joyful festivities, because we are able to discuss, in the Polish Senate, not only the restoration of former judicial independence, but even the establishment of judicial self-governance by transferring the administration over the judiciary from the executive power to the judiciary itself.

I will now share with you some experiences of my 7 years tenure as Vice-President of the Dutch Council for the Judiciary. Not to advocate the introduction of the Dutch system into the Polish system, but to give you input in your thinking process of how to restore and improve judicial self-government.

I will touch upon just a few subjects to give you an impression of the Dutch system of administrating the judiciary: the transfer of administration to the judiciary, the Judicial Council, the budget, draft laws affecting the work of the judiciary, and nominations and promotions. I will conclude with some final remarks.

Transfer of administration

In the Netherlands, this transfer of the administration over the judiciary was completed in 2002, after a few years of preparation. There were different reasons for this transfer. Politicians at the time prioritized the modernisation of the judiciary and knew that the professionalization of the judicial organization could only be a success in case the judiciary was allowed to govern the courts themselves. The leadership of the judiciary wanted self-administration as a safeguard against political interference. All knew the former examples of favouritism by the Minister of Justice of some courts because he and the president were old college friends, especially concerning budget problems. And the Minister of Justice was always particularly interested in the selection of the President of the District Court of The Hague, the seat of the government, because the power of that president was to order interim measures (or not) against the government. So in the transfer of the administration over the judiciary the interests of politicians and judges matched.

Judicial Council

Self-administration started with creating a body that is able to do so: the Council for the Judiciary, consisting of a majority of judges and a minority of non-judges, not politicians or former politicians, but experts in the fields of finances and administration. All members work full-time, because administrating courts takes a lot of time. Personally, I cannot imagine how a part-time member of a Council with administrative powers, selection powers and disciplinary powers is able to do all this work properly, given that a day has only 24 hours and a week only 7 days. In a 2023 review on the Bosnian Council, which I chaired, one of the recommendations was to redirect attention of Councillors from selection/discipline to administration of the courts: the administration of courts was neglected because of a lack of time.

And besides, administrating is totally different from judging: the latter is about establishing facts of the past in the light of the law and judging according to the law; the former is shaping the future of judging without a clear guidance in the law. Because of this different character administrating does not come easy for most judges, so extensive training and selection are necessary. I personally know a lot of brilliant judges who are terrible administrators, and I am not telling you a secret, because they know themselves very well. So, special selection criteria for members of a governing body are absolutely necessary.