1. The British Constitutional Law and the Membership in the European Union

2018/29/N/HS5/00685, financed by the National Science Centre

Principal investigator: Natalie Fox

Supervisor: Professor Piotr Mikuli

 

 

2. Ombudsman-type Institutions in selected Anglo-Saxon Countries against a Comparative Background

2016/21/B/HS5/00445, financed by the National Science Centre

Principal investigator: Professor Piotr Mikuli

The objective of the project was to determine the justification, if any, for the existence of the institution of Minister of Justice in modern constitutional democracies. This required a scrutiny of the relevant constitutional solutions adopted by countries with relatively long and stable democratic traditions and confronting them with the position of the Minister of Justice in Poland. 

 

The Ministers of Justice in the jurisdictions under consideration hold positions and powers within the system of government that are similar, albeit not identical. In all the countries here examined, the Minister is responsible either indirectly or directly for how courts are organised to carry out their functions. This consists primarily in having certain powers to appoint presidents of courts and to nominate judges. Depending on the accepted solutions, the Minister’s participation may be very limited (cf. the judicial council model in France and Italy), moderate (the United Kingdom) or substantial, at least formally (Austria, Germany). A significant increase in powers held by political authorities (including the Minister of Justice) may be in turn observed in Poland, which should be considered in a broader context of violations of the rule of law in this country. Various solutions are also adopted in the different countries when it comes to court administration and supervision of the public prosecutor’s office. Wide powers in this respect are exercised by Ministers of Justice in Austria, Germany and Poland, while those in other countries enjoy more modest authority. Particularly noteworthy among the latter group is the Anglo-Saxon solutions, where specialised agencies are established, which, in cooperation with the government, develop a policy to manage matters related to court administration.

 

The research team argues that the findings of the project lend credence to the hypothesis that it is not necessary to retain the office of the Minister of Justice within governments of modern states, at least in its traditional form, that is, as an entity that has influence on the workings of the judicial system in its narrower sense, i.e. the court system. Considerable powers regarding the judiciary conferred on a representative of the executive, who may freely influence matters pertaining to the organisation of judicial bodies, whether by passing normative acts of a general nature or by way of individual acts (e.g. decisions regarding appointment of presidents of courts), may contrubute to violations of judicial independence, and in countries where the political and legal culture is not sufficiently developed, this may lead directly to the politicisation of the court system,

 

The research team is also of the opinion that the links between the Minister of Justice and the activities of the public prosecutor’s office may also raise serious doubts. Criminal proceedings should be devoid of any political influences, and when it comes to the commencement of criminal proceedings, pressing charges or, potentially, discontinuing proceedings, decisions should be made by a prosecutor as independent and competent as possible. In the opinion of the reserach team, arguments that links between the public prosecutor’s office and the Minister of Justice are justified because it is necessary to enable the state to pursue a specific penal policy are dubious from the point of view of the nature of the executive. Such argumentation seems to rely on the fallacious identification of the government (the executive) with the state. In the context of the separation of powers, decisions made in the name of the state are not, after all, a manifestation of discretionary decisions taken by those who are currently in power. Although – given that the public prosecutor’s office may be functionally classified as an executive power – some links between the government and the public prosecutor’s office (e.g. some supervision of the actions undertaken by the prosecutor’s office) must be admissible, a situation in which the offices of the Minister of Justice and attorney general are combined (as in Poland) must be considered unsound.

 

3. Ombudsman-type Institutions in selected Anglo-Saxon Countries against a Comparative Background

2013/09/B/HS5/01185, financed by the National Science Centre

Principal investigator: Professor Piotr Mikuli

The aim of the project wad to perform a comparative analysis of ombudsman-type institutions in the United Kingdom and selected countries belonging to the Commonwealth of Nations. These institutions will be the object of research in the context of their place in extrajudicial systems of protection of individuals’ rights and freedoms. The task of the research team was to compare the institutions being researched with classic solutions adopted in Nordic countries and to try to determine whether any specific elements of mechanisms of human-rights protection by ombudsman-type institutions exist only in Anglo-Saxon countries and are not to be found in countries outside this cultural area. The authors also intend to consider whether Anglo-Saxon solutions are significantly different from solutions in other countries (mainly those in continental Europe) that have also adopted the institution of the ombudsman in their constitutional systems. The choice of the constitutional systems of the United Kingdom and former British dominions (Australia, Canada, New Zealand) as the object of research was justified by the strong similarities in the legal systems of these countries. British solutions have often served as a model for the countries selected for research or have affected, at least to some extent, the constitutional position and competences of particular state authorities.

English Summary of the final report is available here.