The KSSiP was established over 18 months ago as an elite academy for future Polish prosecutors and members of the judicial profession. For many years, the idea of the School had been brewing in minds of numerous jurists but its actual creation was substantially brought forward by the decision of the Constitutional Tribunal banning the role of an assistant judge (asesor sądowy). This decision resulted in the need to change the judicial promotion system. According to plans of the Ministry of Justice the judge’s appointment was to be accessible in three ways. The first route was the appointment available for members of other legal professions, the judicial office thus becoming a final and top stage in lawyers’ professional development. The second model envisaged that judges were to be appointed from among the practitioners who completed their professional training in the KSSiP. The third option provided for a promotion opportunity for judges clerks (asystenci sędziego) or court referendaries (referendarze sądowi) and required passing the judicial exam.

So far, all these tracks appear to be bumpy country roads rather than wide expressways leading to the judge’s bench. It is hard for advocates or legal advisers to compete with district (the first instance) court judges when applying for offices of circuit judges (who sit in a higher instance court). As far as judges clerks and court referendaries are concerned, each judicial opening attracts dozens of candidates with similar qualifications and expertise: in such a setting a task of selecting the right person for the job is therefore hardly attainable. Finally, the first graduates of the general and judicial specialisation at the KSSiP will complete their professional training programme not earlier than in the second half of 2015.

In my opinion, the prevailing issues that must be dealt with by the KSSiP are authority and legitimisation. The choice of the centralised training model (which I personally think was the right one) should have been followed by securing the maximum level of authority available for the KSSiP among legal scholars, judges or lawschool graduates (prospective judicial trainees). Unfortunately, it had not been the case and the respective sentiment, so far quietly expressed in many circles, was voiced loud and clear after the debate held on 10 December 2010. I think that the present situation is the consequence of the following factors, both institutional and purely practical.

First, the School was founded as an institution supervised by the Minister of Justice. However, its training policy is designed by the programme board composed of representatives of different, non-ministerial bodies such as the National Council of Judiciary or the National Prosecutors Council. A natural consequence of such a division in the decision-making powers are the conflicting ideas not only about the KSSiP curriculum but also the promotion and personnel policy.

As of 1 April 2010 the KSSiP supervising authority, the Minister of Justice, ceased to be Attorney General. At the same time, Attorney General has not gained any additional authority over the KSSiP. It is a paradox in its own right as the KSSiP also trains future prosecutors while Attorney General (who also leads the prosecution service) has virtually no influence on the training process and is forced to rely solely on the goodwill of the Minister of Justice. Obviously, it can be expected that at some point such goodwill may no longer be there. The presence of three prosecutors in the KSSiP programme board does not change much as they had been appointed by the Prosecutors’ Board, a body already abolished.

Second, it is worth mentioning that in many countries schools similar to the KSSiP are supervised by institutions independent from the executive. The respective standard is laid down for example in the Kiev Recommendations on Judicial Independence adopted by the OSCE. At the same time in Poland the supervision over the KSSiP is exercised by the Minister of Justice with no one even considering whether or not the School should be overseen by some other, independent entity such as the National Council of Judiciary, National Prosecutors Council or the President of the Supreme Court. Trifle as it may seem, the issue of supervision in its current form carries the potential for misuse: one may easily imagine the executive treating the KSSiP as a mean to get rid of some ‘rebellious’ candidates for judges.

The above (and a rather sketchy) outline of the institutional issues has to be completed by depicting the overlapping organisational problems. For over six months the KSSiP operated with the vacancy in the post of the School’s head (called ‘the Director’). For obvious reasons, the acting director has the actually and legally limited authority to lead the institution.

The process of the new Director’s appointment attracted a wide media coverage (for instance at lex.pl website). The Ministry of Justice failed to inform the public who the candidates were, what qualifications they had and what the composition of the appointment board was. All that lack of transparency quite needlessly dented the reputation of the person being appointed; a situation worsened by the fact that the candidate received a negative recommendation from both the National Council of Judiciary and the National Prosecutors Council. Nevertheless, he has been appointed the Director of the KSSiP by the Minister of Justice. Of course, it is true that the Minister had the right to ignore the outside opinions and decide at his own discretion. However, the adopted appointment procedure undermines the legitimacy of the new Director at the very outset, questioning his ability to effectively cooperate with the judicial profession as a whole. On its part, the Ministry obviously shows who is in charge here, but is it really a reason for doing so?

Furthermore, there are practical issues related to the trainees education. Certain urgent matters require legislative solutions, an example of which is the need to cover the trainees with a comprehensive sickness, accident and maternity insurance. Unless the Minister is ready to pay from his own purse, the current law which provides that a trainee mother of a newborn is not entitled to maternity benefit under the national insurance scheme must be modified with undue delay.

Also, there are important issues that need to be addressed by taking a practical rather than legislative action. They relate to, among other things, the quality of training courses and selection of training staff with some people raising concerns about the quality of the courses offered and professionalism of course providers. It is time to say: no more experimenting. If the KSSiP is to become a real Academy of Judiciary it should boldly set to look for lecturing staff all over Poland employing publicly advertised admission schemes, and select only the best curricula and use the state-of-the-art legal education tools. It cannot be a school repeating the lawschool education model with the only difference being a higher percentage of judges and prosecutors among teaching staff. In order to gain renown within the legal profession the KSSiP must follow the best global examples and make use of the top specialist in the country, including advocates, legal advisers, foreign practitioners, management experts, economists, psychologists, etc. The School has to be a source of best practices; holding lectures there should be perceived by law scholars and law practitioners as the highest privilege. It  can also become a leading centre for ‘judicial studies’, or the science of the court system and its functioning, a discipline often marginalised at universities. All that cannot be achieved with an inhibiting fear of inability. Nothing can be done if we assume there will be no candidates for the general traineeship in this or that town, that no valuable lecturer will appear… Everything is a question of resolve, the value of the offer made and the prestige involved.

This frame of thinking should also apply to continuing education and professional development of judges and prosecutors. Here we cannot forget about another aspect of the problem: not every judge can afford to travel half a country to complete their training course. Consequently, the courses should be not only high quality but also geographically available.

Why is all that so important? The answer is simple: by admitting a trainee, the KSSiP ‘promises’ to train a future judge or prosecutor. The more effort the School expends to fulfil its promise, the better candidates it will attract and the better legal system we will have. If the School cheats, changes game rules in the process, tolerates mediocrity or fails to give credit to its trainees, individually and collectively, then we will have judges and prosecutors who will somehow opportunistically blend in our defective justice system instead of letting the breath of fresh air and becoming the force driving the change for the better.

That is why we should talk about the past, presence and future of the KSSiP. All the problems we have encountered so far, all the flashpoints that have appeared should give an indication that the KSSiP deserves and needs robust reforms. It they are sensible and bold enough, then it may be that we can make up for the time lost.

*Adam Bodnar – secretary of the Board Helsinki Foundation for Human Rights.


The text was published on 16 December 2010 at
http://www.e-kirp.pl/Moim-zdaniem/Sadownictwo/Trudne-poczatki-Krajowej-Szkoly-Sadownictwa-i-Prokuratury