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Last update: 30-08-2007
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Legal professions - Poland

 

TABLE OF CONTENTS

1. JUDGES 1.
2. PROSECUTORS 2.
3. BAILIFFS 3.
4. NOTARIES 4.
5. ADVOCATES (BARRISTERS) 5.
6. LEGAL ADVISERS (SOLICITORS) 6.

 

1. JUDGES

Judges constitute a special group amongst the legal professions; in addition to the special level of qualifications required, they are distinguished mainly by the principle of independence.

The principle of judges’ independence is set out in Article 178(1) of the Polish Constitution, which states that, in the fulfilment of their duties, judges are independent and are subject only to the Constitution and legislative acts. This means that judges are independent both from the parties to the dispute and from the State authorities. On the other hand, however, judges have a duty of impartiality and are subject to the provisions of the Constitution and the legislative acts, pursuant to and on the basis of which they should carry out all his tasks.

Judges are appointed by the President of the Republic, at the request of the National Judicial Council, for an unlimited term.

In order to be appointed a district court judge (the lowest in the court hierarchy), a person must: be a Polish citizen and have full civil and citizenship rights, be of impeccable character, have completed university-level law studies in Poland and have been awarded the title of Master of Arts, or have completed foreign studies recognised in Poland; be in a state of health compatible with performance of the duties of a judge; be at least 30 years of age, have passed the judge’s or public prosecutor’s examination, have been working as an assistant judge or assistant public prosecutor for at least three years or as a court official for a period of five years. The requirement to complete legal and judge’s training does not apply to persons who have been assistant judges or court officials for at least six years and have passed the judge’s examination. The requirements to complete legal training, judge’s training and to have the required number of years of work experience do not apply to professors and readers employed at scientific establishments. In addition, a person who has been working as an advocate, legal adviser or notary for at least three years can be appointed to the position of a district court judge. As regards the appointment to the position of a judge of higher-instance courts (regional court, court of appeal), the criteria listed above are supplemented by the requirement relating to the relevant number of years of employment in the judiciary or in other legal professions.

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A candidate judge must first be approved by the judges’ self-governing body in a given court, i.e. the general meeting, in a vote by secret ballot. Then the candidate is introduced to the National Judiciary Council, via the Minister of Justice, who may express his opinion. On that basis, the National Judiciary Council adopts, by secret ballot, a resolution to refer the candidate to the President, who appoints the judges of district, regional and appeal courts. A promotion to a court of a higher instance requires the same approval procedure and a re-appointment.

The independence of judges is guaranteed by the fact that a judge cannot be removed. A judge may be recalled, suspended or transferred to another court or to another position against his will only pursuant to a decision of a court (including a disciplinary court) and only in the cases specified in the Act (Article 180 of the Constitution).

Judges are appointed for an unlimited term (Article 179 of the Constitution). This means that when they reach retirement age (currently 65 years), they become retired judges, retaining some of their rights and obligations. However, the National Judiciary Council may, at the judge’s request, allow him or her to continue performing their duties until the age of 70.

A judge cannot, without prior consent of the court specified in a legislative act, be held criminally liable or deprived of freedom (judge’s immunity). A judge may not be detained or arrested unless he or she is caught committing a crime and his/her detention is necessary in order to ensure the correct course of proceedings (Article 181 of the Constitution). Judges are liable to the disciplinary courts alone, consisting of judges and appointed by the judges’ self-governing bodies, for any breach of judge’s duties, or any petty offences.

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A judge may not be a member of any political party or trade union or carry out any public activity incompatible with the principle of the independence of the courts and of judges (Article 178(3) of the Constitution). In addition, a judge may not take up any other paid employment without the consent of the competent authorities.

Judges are governed by a self-governing judges’ council. The bodies of the self-governing judges’ council are: the general meeting of regional judges and the general meeting of judges of the court of appeal.

The Minister of Justice supervises the administrative activities of the courts.

Provisions relating to the status of judges and the guarantee of judges’ independence are set out in the Polish Constitution and in the Common Courts Act of 27 July 2001.

2. PROSECUTORS

The main task of the prosecution service is to safeguard law and order and oversee the prosecution of crimes, including the conduct or supervision of preparatory proceedings in criminal cases and acting as a public prosecutor before the courts, carrying out research into issues relating to crime and the combating and prevention of crime, and cooperation with other bodies in the prevention of crime and other breaches of law.

In addition, in civil cases, in accordance with Article 7 of the Polish Code of Civil Procedure, a prosecutor may demand the commencement of proceedings in any case, or participate in any proceedings already pending if, in his opinion, it is necessary for the protection of law and order, the citizens’ rights or the public interest. In non-property cases relating to family law, a prosecutor may commence proceedings only in cases mentioned in the law.

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In family law cases, a prosecutor may commence proceedings in particular if an eligible person, as a result of incompetence or for other valid reasons, is incapable of pursuing his or her claims, or is refraining from pursuing such claims to the detriment of the public interest. The prosecutor’s participation is advisable in particular in cases relating to: annulment or establishment of the existence or non-existence of marriage, denial of paternity or maternity, annulment of the recognition of a child and establishment of an absolute invalidity of the recognition of a child, a decision on adoption by foreigners or by Polish citizens domiciled abroad, a decision on the annulment of adoption, or on the release of a person subject to parental authority or guardianship.

In administrative cases, the task of the prosecution service is to appeal in court against any unlawful administrative decisions and to participate in court proceedings relating to the lawfulness of such decisions.

The prosecution service includes the Prosecutor General and the prosecutors of common and military organisational units of the prosecution service, reporting to him, as well as the prosecutors from the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation. The Prosecutor General is the supreme authority of the prosecution service. The office of Prosecutor General is held by the Minister of Justice. The prosecutors of the common organisational units of the prosecution service are the prosecutors of the National Prosecution Service and of the appellate, regional and district prosecution services.

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The prosecution service has a hierarchical structure. It means that although the prosecutor is independent in the performance of his duties set forth in the legislative acts, he is obliged to comply with the orders, guidelines and instructions of the prosecutor to whom he reports.

The prosecutors from the common organisational units of the prosecution service are appointed by the Prosecutor General.

In order to be appointed a prosecutor, a person must: be a Polish citizen and have full civil and citizenship rights, be of impeccable character, have completed university-level law studies in Poland and have been awarded the title of Master of Arts, or have completed foreign studies recognised in Poland; be in a state of health compatible with performance of the duties of a prosecutor; be at least 26 years of age, have passed the prosecutor’s or judge’s examination, have been working as an assistant prosecutor or assistant judge for at least one year or have completed, at the military organisational units of the prosecution service, the length of service specified in the provisions on the military service of professional soldiers.

The following persons can also be appointed, without the need to pass the examination and complete the prosecutor’s training: professors and readers of law science at Polish universities, at the Polish Academy of Sciences and at scientific establishments, judges, military judges, advocates, legal advisers and counsels from the General Prosecution Service of the State Treasury, who have been working in their profession or have held their position for at least three years, as well as notaries, after passing the examination, but without the need to complete the prosecutor’s training.

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Prosecutors are appointed for an unlimited term, which means that when they reach retirement age, they become retired prosecutors, retaining some of their rights and obligations.

A prosecutor can be moved to another position only subject to his consent. In respect of any professional misconduct, including any obvious and gross violation of the provisions of law and the dignity of the prosecutor’s office, the prosecutor shall be held liable in disciplinary proceedings before a court comprised of prosecutors.

Public prosecutors, in the same way as judges, are entitled to immunity. This means that a public prosecutor may not be held liable in criminal proceedings without the consent of the competent disciplinary court or detained without the consent of the hierarchical superior. The above does not apply where a public prosecutor is caught committing an offence.

During his term of office, the prosecutor may not be a member of any political party or participate in any political activities.

A prosecutor may not take up any additional employment, except for teaching, teaching and research or scientific posts, or take up any other occupation or profit-making activity which could interfere with his professional duties and which may prejudice the confidence in his impartiality or be detrimental to the dignity of the prosecutor’s office, including conducting any business activity or holding any position in the governing bodies of any business entities.

The status of the prosecutors and their rights and obligations are set forth in the Act of 20 June 1985 on the prosecution service.

3. BAILIFFS

A court bailiff is a public official affiliated with a district court. The bailiff carries out enforcement duties in civil cases and other duties entrusted to him pursuant to separate provisions of law (e.g. prepares the inventory polski and, if ordered by the court polski or the prosecutor polski, prepares a facts-of-the case report before the commencement of court proceedings or before the issue of a decision). Furthermore, the bailiff has the right to deliver court notices, announcements, objections and complaints and other documents subject to the confirmation of receipt and on a specific date; carry out official supervision over voluntary public auctions, confirming the lowest or the highest offer. For the enforcement-related duties and for other duties listed in the legislative acts, the bailiff charges execution fees.

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Bailiffs have their offices and carry out their duties within their allocated area, provided that a creditor has the right to select any bailiff within the jurisdiction of the court of appeal. The bailiff’s area covers the area of jurisdiction of the district court, a part of that area or the area of jurisdiction of a number of district courts. Each year, the Minister of Justice announces a list of the areas and registered seats of bailiffs’ offices.

During the performance of his duties, the bailiff is subject only to the legislative acts and to court decisions. Supervision of the formal correctness of the bailiff’s activities is carried out by the Chairman of the district court with which the bailiff is affiliated. The overall supervision of the activities of the bailiffs and the activities of the bailiffs’ self-governing body is carried out by the Minister of Justice.

A court bailiff can be anyone who: is a Polish citizen and has full civil and citizenship rights; is of impeccable character; has completed university-level law or administration studies; has completed the bailiff’s training; has passed the bailiff’s examination, and is at least 25 years of age. Judges, prosecutors, advocates, legal advisers, notaries and persons who have completed the judge’s, prosecutor’s, advocate’s, legal adviser’s or notarial training, and persons holding a Ph.D. in legal science, are exempt from the requirement to complete the training and pass the examination.

Bailiffs elect their self-governing bodies, which comprise: the National Bailiffs’ Conference; the National Bailiffs’ Council; the general meetings of bailiffs from bailiffs’ chambers; the bailiffs’ chambers.

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The duties of bailiffs and the structure of the bailiffs’ self-governing bodies are set forth in the Act of 29 August 1997 on court bailiffs and enforcement procedure.

4. NOTARIES

The notarial service is a body safeguarding the security of legal transactions and compliance with the law in force. The notarial service is represented by the notary, i.e. a person of public trust, appointed to carry out the transactions which the parties should or wish to conclude in a notarial form.

The principal notarial duties include: drafting of notarial deeds and minutes, certification and notarisation, preparation of protests relating to promissory notes and cheques, receiving declarations on the acceptance or waiver of an inheritance, acceptance of various deposits. Within the scope of his powers, the notary acts as a figure of public trust, afforded the protection given to public officials. Notarial acts effected by the notary in compliance with the law have the character of official documents.

There is currently an independent self-governing notarial body and private notarial offices in Poland. The notarial self-governing body is a mandatory organisation, which means that membership of the self-governing body is a condition which must be fulfilled in order to practise the notarial profession. The notarial self-governing body includes the notarial chambers and the National Notarial Council.

Notaries are appointed and dismissed by the Minister of Justice, after obtaining an opinion of the competent notarial chamber. A notary can be anyone who: is a Polish citizen and has full civil and citizenship rights; is of impeccable character; has completed university-level law studies in Poland and has been awarded the title of Master of Arts or has completed foreign studies recognised in Poland; has completed notarial training; has passed the notarial examination, has been working as an assistant notary for at least 3 years, and is at least 26 years of age. Professors and readers of legal science, judges, prosecutors, advocates and legal advisers who have been practising their profession for at least 3 years, can also be appointed as notaries.

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The structure of the notarial service and the tasks of the notaries are set forth in the Act of 14 February 1991 – Notarial Service Law.

5. ADVOCATES (BARRISTERS)

The Bar has been created to provide legal assistance, to cooperate in the protection of the citizens’ rights and freedoms and in the formulation and application of the law. The advocate’s profession consists in the provision of legal assistance, in particular in the provision of legal advice, preparation of legal opinions, drafting of legislative bills and attending before courts and official institutions. Such legal assistance is provided to individuals, business entities and organisational units.

The Bar is organised on the basis of a professional self-governing body. The professional Bar association in the country is made up of 24 barristers’ chambers. The chambers include advocates (barristers) and trainee advocates whose professional seat is located in the chamber’s area. The profession of an advocate can be practised only by persons registered in the register of advocates by the regional Bar council at the Bar chambers in which the advocate’s professional seat in located. Registration in the register is obligatory. The national self-governing body of the Bar is the Supreme Bar Council.

Any person who: is of impeccable character and whose conduct to date guarantees that he will practise the advocate’s profession correctly, has full public rights and has full legal capacity, has completed university-level law studies in the Republic of Poland and has been awarded the title of Master of Arts, or has completed foreign law studies recognised in the Republic of Poland, has completed the advocate’s training in the Republic of Poland and has passed the Bar examination, can be registered with the Bar. The last two criteria do not apply to professors and readers of legal science, persons who have passed the judge’s, prosecutor’s, legal adviser’s or notarial examination, or persons who for at least three years have been counsels to the General Prosecution Service of the State Treasury. The following may also take the Bar examination without the need to complete the advocate’s training: readers of legal science and persons who have worked as a court official or assistant judge for at least 5 years in a period no longer than 8 years.

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The organisation and tasks of the Bar have been set forth in the Act of 26 May 1982 – the Bar Law.

The provision of legal assistance by foreign lawyers in the Republic of Poland has been regulated in the Act of 5 July 2002.

6. LEGAL ADVISERS (SOLICITORS)

The profession of a legal adviser consists in the provision of legal assistance, in particular the provision of legal advice, preparation of legal opinions, drafting of legislative bills and attending before courts and official institutions.

Legal advisers may provide legal assistance to business entities, organisational units and individuals other than business entities, with the exclusion of acting as a defence counsel in criminal proceedings and in proceedings relating to fiscal offences.

Legal advisers have the right to practise their profession on a freelance basis, and combine it with other forms of employment, for example with employment pursuant to an employment contract.

Legal advisers are organised on the basis of a professional self-governing body. The legal advisers’ self-governing body is independent in carrying out its tasks and is subject only to the provisions of law.

The self-governing organisational units with legal personality are the regional chambers of legal advisers and the National Council of Legal Advisers. Supervision of the self-governing body is carried out by the Minister of Justice.

The right to practise the profession of a legal adviser arises upon registration in the register of legal advisers and the swearing of an oath.

Any person who: has completed university-level law studies in the Republic of Poland and has been awarded the title of Master of Arts, or who has full public rights and full legal capacity, is of impeccable character and whose past conduct guarantees that he will practise the profession of a legal adviser correctly, has completed the legal adviser’s training in the Republic of Poland and has passed the legal adviser’s examination, can be registered in the register of legal advisers. The requirement to complete the legal adviser’s training and to pass the legal adviser’s examination does not apply to professors and readers of legal science, persons who have passed the judge’s, prosecutor’s, advocate’s or notarial examination, or persons who for at least three years have been counsels to the General Prosecution Service of the State Treasury. The following may also take the legal adviser’s examination without the need to complete the legal adviser’s training: readers of legal science and persons who have worked as a court official or assistant judge for at least 5 years in a period no longer than 8 years.

The organisation and tasks of legal advisers have been set forth in the Act of 6 July 1982 on Legal Advisers.

The provision of legal assistance by foreign lawyers in the Republic of Poland is regulated in the Act of 5 July 2002.

Further information

Constitution of the Republic of Poland

http://www.sejm.gov.pl/prawo/konst/konst.htm

The Supreme Bar Council

http://www.adwokatura.pl

Courts and Tribunals – Public Announcements Bulletin

http://www.bip.gov.pl/index.asp?fid=4590 polski

National Chamber of Legal Advisers

http://www.radca.prawny.lex.pl polski

National Notarial Council

http://www.krn.org.pl polski

Notarial Chamber in Warsaw

http://www.notariusze.pl

Bailiffs’ Self-governing Body

http://www.komornik.pl

Appellate Prosecution Service in Warsaw

http://www.pa.waw.pl polski

« Legal professions - General information | Poland - General information »

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Last update: 30-08-2007

 
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