Nobody – well nobody in his right mind – would question the need for judicial independence. Without it there can be no effective rule of law and the citizen is at the mercy of the state. And even with it, alas, in the modern world – or, rather, in those countries that should know better: step forward the United Kingdom and the United States – under the guise of protecting us from terrorists, the race between liberty and oppression is becoming, like the Battle of Waterloo, a closer run thing than it ought. But I digress, slightly.
Here in Poland, the principle of judicial independence is set out in the Polish Constitution which states that, in fulfilling their duties, judges are independent and are subject only to the Constitution and legislative acts. The independence of judges is further guaranteed by the fact that they cannot be removed. A judge may not be recalled, suspended or transferred to another court or to another position against his will other than pursuant to a decision of a court (including a disciplinary court) and only in the cases specified in the legislative act. Of course, as we learned during Tea and Sympathy, this makes reorganizing the courts more difficult if judges refuse to be moved. Judges are also appointed for an unlimited term although at retirement age they become retired judges and may continue as active judges until aged 70.
Interestingly, a judge may not, without the prior consent of the court specified in a legislative act, be held criminally liable or deprived of freedom (the judge’s immunity). The Polish constitution also provides that a judge may not be detained or arrested unless he is caught red handed in the act of committing a crime and his detention is necessary in order to ensure the correct course of proceedings. A judge is liable to the disciplinary courts alone, consisting of judges and appointed by the appropriate self-governing body of judges, for any breach of his judge’s duties, or any petty offences. While it would be wrong to suggest that this gives judges carte blanche it does, perhaps, fall a little short of the ideal: “Be you never so high, the law is above you,” as Dr Thomas Fuller wrote in 1733.
Be that as it may, what does in mean in practice? It means, of course, that the system in Poland makes it difficult to force judges to comply with procedural rules, especially those relating to hastening proceedings, perhaps the most common source of frustration. Recently we had an instance of this where a case had gone to the appeal court. The appeal was heard and the judge gave his judgment in open court. The rules provide that a written justification of the decision must be provided within fourteen days of the hearing. Needless to say the fourteen days came and went. The reasoning behind the decision is important to the client because of the bearing it has on related litigation to which the client is a party and which itself requires prompt action to be taken and in respect of which the point at appeal is a key element. Weeks later, the written judgment is still not available, and why? Because not only has the judge stepped out but has stayed out and gone on his summer holiday. This a clear breach of the rules with no effective remedy for the client. Sometimes justice has to be not so much seen to be done but seen to be believed.