Lay Judges in Common Courts

Disclaimer: The author worked for Ministry of Justice of the Republic of Poland as an expert on lay judges, and since 18^th of October 2024 has been appointed as a Minister of Justice Plenipotentiary for the Open Judiciary.

According to the article 182 of Polish Constitution, citizens can participate in the administration of justice. Adjudicating cases by ordinary citizens, appointed as a lay judges is regulated in the law on ordinary courts (see 158 and following) and rules of court procedure – civil and criminal.

As a principle – lay judges are appointed for a four-year term, they must be older than 30 and not older than 70. There is no requirement of special education nor qualifications. Candidates for lay judges may be proposed by court presidents, social organizations or groups of 50 citizens. Their selection is carried out by the municipal councils. After an oath, they can adjudicate in collegial panels of courts of first instances (never in appeal courts and cases).

The lay judges used to complete the adjudicating panels since the end of the World War II were called a “people’s lay judges” as the whole country was named a People’s Republic of Poland.

After 1989 and especially during Covid-19 pandemics, the participation of lay judges in the Polish judiciary systematically became quite limited – the panels consisting of one professional judge and two lay judges were mostly replaced by an individual proceeding judge. Lay judges were and felt marginalized in the judiciary.

A fair share of the marginalization of the lay judges’ participation in the judiciary is due to the (professional) judges themselves, who for a long time considered lay judges to be a necessary evil or ‘decoration’ of the courtroom.

There have been opinions that jurors are passive, have no opinion of their own and present a rather inactive attitude.¹⁾ This contrasts strongly with the demands of academics supporting the idea of increasing civic participation, including in the administration of justice. Also, the European Charter of Social Judges points to the high importance of the participation of jurors (non-professional/community judges) in the judiciary.

It also seems that the participation of jurors and their opinions on the administration of justice has been overlooked during the actions undertaken by civil society organisations in defense of the rule of law, which could produce the desired results. For example, none of the lay-judges organizations were part of the Justice Defense Committee – an umbrella organization of NGOs of the stakeholders of the judiciary (judges, prosecutors, human rights defenders etc.) established in 2018.

The jurors were closest to the judges and their work, and at the same time, as citizens, they could have shaped the debate about the problems of the judiciary in a different way. But no one asked lay judges to speak or to advocate for the independence of judiciary.

Lay judges as the “human factor” of the judiciary

In most European countries, the judicial system includes lay judges, jurors or expert lay judges, who assist judicial professionals in deciding people’s problems or even adjudicate cases without the participation of a professional judge.

In the Polish society, the panel consisting of either professional judges and lay judges or professional judges themselves is perceived as a panel and is given more legitimacy than a single judge.

Although the requirements for becoming a lay judge are not very demanding and there are not clear barriers for people to become directly involved in the judiciary members of the Polish society do not want to become lay judges.

Therefore, the number of lay judges is still decreasing, and it is usually necessary to organize a second or third recruitment during the term of office. It may seem paradoxical that such an active and generous society²⁾, which shows enormous solidarity in times of disaster or in defense of human dignity, is not interested in judicial activities.

Most lay judges in Poland are women, over 60 years old, having a university degree and are serving in the judiciary for at least the second time. Of the more than 6000 lay judges elected so far for the 2024-2027 term, only 3% are under 35.

Only 5 out of 47 district courts in Poland elected lay judges in the first round of elections, while in the rest (including the largest and busiest courts, such as the Warsaw courts) there was an urgent need to call a second round of elections.

Despite holding such an important role and administering justice, lay-judges do not feel adequately appreciated, do not see their function as a source of pride and rarely speak out in public debate. One of the reasons for this is the moderate media interest in their function, which mainly boils down to announcing “how much a juror can earn” before the upcoming election date. Citizens, on the other hand, see lay-judges as relics of the previous (communist) system and people who have no influence on the verdict anyway.

The reduction of lay-judges position to a mere opportunity to make some extra money neglects the importance of their function, which after all provides a unique chance for ordinary citizens to deliver justice³⁾.

Lay-judges and citizens as part of the justice system – next steps

After the first year of the so-called restoration of the rule of law in Poland, it is clear that systemic changes and the strengthening of institutions guaranteeing the rule of law will have to wait because of the political setting. This does not change the fact that most of the ordinary court’s shortcomings – the length of proceedings, their paper-based form, access to the court or communication with the parties – remain at the same level as they have been for years. 

Expectations remain high for the new government and especially for the Minister of Justice – Adam Bodnar, who is clearly associated with the struggle for the independence of Polish courts in the past few years.

Minister Bodnar, as a former Ombudsman (Commissioner for Human Rights) continues to be sensitive to the everyday person’s fate both in the courtroom and before the courts – for it was the welfare of citizens that he was concerned with during his five years as Ombudsman.

Adopting a “civic perspective” in looking at the judiciary is the right direction to take and is currently probably the only one. It is also worth considering whether to make (or propose) deeper changes to the participation of the social factor in the judiciary, such as increasing the cognizance or lowering the age of jurors – for the introduction of a modern outlook.

One example is family cases, where the participation of lay-judges is currently completely marginal – in district courts they only deal with cases of dissolution of adoption and ineffective acknowledgement of paternity. Even professional family judges call for greater participation of jurors in other family cases, where not only the law but also the welfare of the child or knowledge of social mechanisms are important for the decision. The life-experienced jurors have always been a tremendous support to the judges and have sometimes helped in understanding the parties and resolving their dispute.

In addition to purely legislative and systemic changes – allowing lay-judges to participate more in the justice system – a new narrative about their function is needed.

It cannot be a “passive pensioner who comes to court to make a living every now and then”. The lay-judge is simply supposed to be an informed, active and engaged citizen, proud to participate in the exercise of one of the three authorities – a task that still confronts the Minister of Justice.