Aktualne kierunki rozwoju władzy sądowniczej. Marsz Tysiąca Tóg rok później

Dear distinguished Guests, Dear colleagues, Ladies and Gentlemen,

It is my great pleasure to welcome you all today at this afternoon’s online event.

Many challenges previously unknown to the judiciary arose in the 21st century. One of these challenges, especially in the post-communist countries, is to create of a new concept of the judicial power. A consequence of this state of affairs is that a number of questions arise regarding checks and balances, limits of authority and, consequently, guarantees of the right to a fair trial.

In Morice v. France⁹, our European Court of Human Rights said: “Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties”. Confidence and legitimacy are seen as essential for courts to fulfil their function¹⁰. Lack of trust disconnect the courts and society, and consequently deprives the judiciary of its legitimacy¹¹.

On January 11, 2020, the unprecedented March of 1000 Robes took place, during which European judges manifested their solidarity with Polish judges, lawyers and the entire free Polish society by marching through the streets of Warsaw. It was an undeniable manifestation of citizens’ solidarity with the judiciary¹². Judiciaries in Europe were united in the struggle for the protection of the rule and the basic principles that are cornerstones of the Union. Standing in front of the Presidential Palace in Warsaw, under the European flag, each of us supporting it was symbolically a pillar of the European Union. The judiciary has gained the long-awaited acceptance and subjectivity in the public area. Consequently, as European magistrates in solidarity with society, we are obliged to uphold the rule of law and guarantee the implementation of the right to a fair trial.

Last year was a pandemic year, but also a time when we were faced with a question how to protect public confidence in the judiciary against gravely damaging attacks that are essentially unfounded. The disciplinary proceedings were used as tool of breaking the rule of law in Poland. A year after the March, in the age of information technology and the transformation of the public sphere, this question merits attention and careful consideration. Faced with the fast-changing landscape of dispute resolution, and political populist movements which threaten to undermine the independence and impartiality of judiciary, what role should and can modern courts play in ensuring a degree of openness necessary to support the rule of law?

The answer to the question: what are the possible ways of the development of the judiciary presupposes defining the place where we are, diagnosing the mechanisms and main problems. Only this will allow us to define possible directions for the development of the judiciary in the 21st century.

The classic reference is to Hamilton, who argued that the judiciary is the weakest of the three state powers; judges can only make decisions in disputes that are put to them, and the judiciary itself does not implement or enforce the decision¹³. However, the question arises whether today the eighteenth-century reference to the principle of check and balance is sufficient. I share the view that today it is clearly visible that the consequence of this understanding may be actions disturbing in many ways the principle of check and balance by abusing by political power its position in relation to the others, which results in limiting or depriving citizens of the right to a court, e.g. by introducing financial or legal barriers to access to the right to a court, abuse of position in the field of judicial appointments or the appointment of members of the governing bodies of the judiciary¹⁴. In my opinion, we must have open justice system, which includes not only the assumption of public hearings, openness of judgments, but also the transparent procedures for appointing judges. All this essentially determines right to the fair trial, which is an important element of the proper functioning of a democratic society. The open justice system is seen as sine qua non condition for confidence¹⁵ and legitimacy¹⁶. First in my opinion we should discuss: an open justice system and role of judicial self-government.

Thus, in the first part of the seminar today, we will discuss the rule of law in the context of solidarity as a cornerstone of the defense of an independent judiciary. After that we will have a session addressing the issues related to the judiciary: possible ways of development.

Together with my colleagues, I look forward to a stimulating seminar filled with fruitful discussions and inspiring ideas.

Thank you all for participation and for your attention!

Without further ado, I now kindly invite you to the documental movie screening.