Stowarzyszenia i związki zawodowe sędziów
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SUMMARY
Professional associations and unions of judges
In Poland, the Constitution directly prohibits trade union activities to be conducted by judges, and the only possibility for representatives of that professional group
to engage in legal common activities within an organized and formalized structure is to establish an association with exactly the same rights and competences as any other association. The general prohibition of trade union activity in relation to judges has been in force since 1997, that is the enactment of the current Constitution
of the Republic of Poland. The comparative study involving a group of 41 other states lead to a conclusion that the system applicable in Poland is not a dominating one in the world – it may be considered dominating as regards states with a similar continental legal system, only in the group of post-communist countries. The systems different from the Polish one differ with regard to the issue of trade union activities and judges’ associations, since in some states judges may engage in trade union activities and enjoy the right to strike, there are other one where only the former is permitted, and there are also such where the situation is reverse, that is judges have only the right to strike. In turn, as regards association activities, apart such states as Poland where there judges’ associations enjoy no special privileges, there are also countries where such privileges do exist and this is not tantamount to prohibiting involvement in trade union activities in those countries. However, states are not totally free as regards regulating trade union activities of judges since the majority of them (including Poland) are members of the International Labour Organization (ILO) and signatories of the ILO Convention No. 87 on the Freedom of Association and Protection of the Right to Organize which guarantees the right to establish trade unions also for judges. Respecting of the convention by its member states is watched by the Trade Union Freedom Committee of the Administrative Council
of the International Labour Organization, which is a quasi-judicial body. As a result of a complaint filed by YARGI-SEN – the association of judges and prosecutors dissolved by a Turkish court basing on national regulations prohibiting involvement of representatives of those professional groups in trade union activities, in its recommendation issued at the meeting held in March 2012 the Committee stated that since Turkey ratified the Convention No. 87 it may not prohibit its judges
and prosecutors to organize in trade unions, and therefore any provisions of the Turkish law to that effect are out of compliance with the norms of the international law and should be eliminated. Although Turkey has failed to do so until today, despite the fact that the recommendation was reiterated a year later, in the light of the literally read contents of the Convention No. 87 it does not seem possible for the Committee to change its position. The regulations in force in this respect in Poland are actually identical to those applicable in Turkey, so there is no doubt that the Polish legislator should as soon as possible take relevant steps to assure compliance of the national law with international obligations of the State.
Autor jest sędzią, prezesem oddziału warszawskiego i członkiem zespołu międzynarodowego SSP „Iustitia”.
1 Zob. postanowienia SN z 9.11.2013 r., III SW 168/11 i 169/11, Legalis, z glosą krytyczną J. Mordwiłko i aprobującą M. Wiącek, Lex/el.
2 Jak np. zmarły 9.1.2014 r. Pierwszy Prezes Sądu Najwyższego Stanisław Dąbrowski,
zob. http://prawo.rp.pl/artykul/1079640-Uroczystosci-pogrzebowe-I-prezesa-Sadu-Najwyzszego-Stanislawa-Dabrowskiego.html
3 Więcej o tym okresie zob. np. wywiad z A. Strzemboszem pt. „Kiedy lex nie było ius”, Kwartalnik SSP „Iustitia” Nr 1/2011, s. 33–37 oraz A. Strzembosz, M. Stanowiska, Sędziowie warszawscy w czasie próby 1981–1988, Warszawa 2005.
4 Ustawa Konstytucyjna z 17.10.1992 r. o wzajemnych stosunkach między władzą ustawodawczą i wykonawczą Rzeczypospolitej Polskiej oraz o samorządzie terytorialnym,
Dz.U. Nr 84, poz. 426.
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