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

Budget

Without a budget for the whole of the judicial organization (Council, courts, judicial school, IT, housing), the Council is not able to administer independently from the executive. So, the Council negotiates with the Minister of Justice about this budget, presently 1.2 billion euro. The Council may appeal to Parliament directly in case the negotiations are not successful. These negotiations are every three years, to protect the judiciary against the delusion of the political day. Another safeguard against political influence is to create as much objective criteria as possible as the fundament for the budget. The Minister of Justice is not allowed to earmark the budget to prevent another possible political influence. The Council splits the national budget into budgets for national services (judicial school, IT, shared services, Council) and the courts on the basis of more or less objective criteria, elaborated in rules. The Council is accountable for the budget to the Minister of Justice.

The Council selects the presidents of courts, who are integrally responsible for every aspect of the court: judges, staff, budget, quality, housing and IT, for instance. And also for the productivity of the court, which prevents productivity of judges from entering in the disciplinary system. It also attributes the court a yearly budget, based on as objective criteria as possible. The president of a court is fully accountable to the Council in three monthly meetings with a member of the Council that reports to the full Council.

Nominations and promotions

The Council only selects the presidents of the courts. For all other selections – except for members of the Supreme Court – the Council has a responsibility that the system of selections works well. So, for instance, it appoints the national initial Selection Committee for judges and sets the standards for selection. The Council has no powers on promotions, except promotions to the presidencies. The courts themselves are totally in charge of promotions, the Council only has a role as facilitator in this respect.

Draft laws affecting the work of the judiciary

The duty of the Council to administer the judiciary implies a say in draft laws concerning the work of the judiciary in the form of advice to Parliament, solicited or unsolicited. It requires good relations with the Parliament, for instance by giving evidence in round tables. Some rules apply to this dialogues, such as no discussion about individual judgments and no discussion about individual judges or courts. It is important to come to an understanding about these rules with Parliament before entering in dialogues.

In my time, I was responsible for advice on draft criminal laws. The advice given was not political, but always based on the law and legal practice. We were rather successful in preventing laws judges were very much against, just by explaining what the practise in courts was and how the draft would negatively affect this practice, or explaining what European law requires. As an example I mention the introduction of minimum sentences, or sentencing guidelines by the executive. But sometimes politics took over, and the judiciary had to accept the new law.

Final remarks

The transfer of the administration over the judiciary in the Netherlands involved the transfer of the total budget of the Ministry of Justice to the Council, the introduction of integral responsibility of the Council to the Minister of Justice and Parliament, and of presidents of courts to the Council, the duty to advise Parliament on draft laws, and much more. This transfer is a process that has implications in many fields, such as concentrating powers in one Council (or not), selection criteria of Council members, selection criteria of presidents, composition of the Council, etc etc.

Judicial self-administration asks a lot of a judiciary and its members. Do not make any mistakes about that. Self-administration is hard and difficult.

However, I feel self-administration is most certainly to be preferred to administration over the judiciary by the executive power.

My opinion is based on the important successes of the transfer in the Netherlands, which are:

1. that political influence in the courts through management or budget is nil; the same goes for selection and promotion of judges;

2. that the necessary modernization of the judicial organizations is led by judges, and not forced upon by politicians;

3. that the judiciary is more influential in Parliament because it is recognized as the third power in the State.

In other words:

The judiciary is not only better able to protect itself but also better able to shape its own future.

This is what I truly wish for my Polish friends and colleagues.

May Poland, once again, become a leader in historical events in Europe, this time, I trust, in the field of the transfer of the administration over the judiciary.

Thank you for your attention