Strasbourg, 22 January 2002
CCJE (2002) 5
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Poland
Reply on questionnaire on conduct, ethics and responsibility of judges.
I. The judge’s obligations.
In Poland judge’s obligations are determined particularly by:
1) legal rules of statutes on constitution of all courts that administer justice in our country,
2) legal rules of substantive law and legal rules of procedural law applied within hearing and passing judgement in specified case,
3) legal rules of order of courts’ internal activity.
In the present elaboration I fix my attention on judge’s obligations formed on statutory level. Presentation of judge all obligations drawn from legal rules comprised in substantive (civil, administrative, penal) law and procedural (civil, administrative, criminal) law would over-detail the replay. Having in mind the idea of the questionnaire tended towards designation the general obligations of judges I decided to limit my consideration and present fundamental judge’s obligations stated in legal rules of statutes of structure of the law courts and in substantive and procedural law. Therefore I left out the detailed judge’s obligations established in order of courts’ internal activity. The part of judge obligations described in substantive and procedural law that may cause disciplinary responsibility (in the event of their breach) will be indicated in the next part of this response as examples of official misdemeanours.
The Statute October 1, 2001 on the Constitution on Common Courts of Law formed the legal status of judges of common courts being the essential part of all Polish judges (about 8000 judges). Therefore that statute comprises the all-general and fundamental structural obligations of judges. The statutes determining structures of the other law courts, namely: the Statute August 21, 1997 on the Constitution of the Military Courts amended October 1, 2001, the Statute May 11, 1995 on the Supreme Administrative Court, the Statute September 20, 1984 on the Supreme Court were resolved in basic scope in the past. But these statutes comprise in main framework the statutory fundamental obligations placed in the statute of constitution of common courts by which judges are bound. Other obligations described in statute of structure of common courts but not mentioned in other statutes bound the judges of administrative, military and Supreme Court. It results from the fact that those, special provisions of statutes of military, administrative and Supreme Court proclaimed- in cases not regulated in it -the appropriate application of legal provisions of statute of constitution of common courts. According to the statutes mentioned above, the judge is obligated to act comply with his judge oath and continue to improve his professional qualifications (art. 82 § 1 statute of constitution on common courts, art. 32 statute of the Supreme Court, art. 21 § 1 statute of constitution of military courts).
The Polish judges of all courts take as a rule identical judge oath. Admissible changes in the words of judge oath result from the appointment of judges to the adequate court. The judge take oath in the presence of the President of the republic of Poland as follows: “I solemnly swear as a judge ...(of common court, or military court, or the Supreme Administrative Court, or the Supreme Court) to loyally serve the Polish Nation, to guard the law, to fulfil scrupulously the obligations of my office, to administer justice impartially comply with my conscience and the law, to keep state and official secret and uphold principles of dignity and honesty during proceedings”. The oath formulates the certain scope of judge’s obligations. The infringement of these obligations may cause the disciplinary responsibility for acts against the dignity of judge office.
The judge should both in and out of the court guard the dignity of his office and avoid everything what would bring him into disrepute or diminish trust in his impartiality.
The judge is obligated to keep secret circumstances of case examined by the court, which he learned considering his office outside the public trial. The duty of secrecy has to be maintained even after leaving the official post.
Judges are bound to render a written declaration concerning their financial standing. The declaration concerns their individual property and joint property of spouses. The declaration should especially include information about money funds, immovables, participations, shares in companies as well as about property bought from the State Treasury or other state organisational units, communes which could be disposed by way of auction.
Judge’s requests, moving for, complaints in cases referring to his post the judge can bring in the official way only. In such cases the judge can not address to institutions or strange persons as well as make such cases public.
The judge is obligated to notify the president of the court in question of the pending action in which he is a part or participant of legal proceedings.
The judge’s basic procedural obligations ensued from fundamental procedural principles governed the course of proceeding. For example in the case of criminal proceeding we can mention the judge’s obligations flew from principles: right to defence, presumption of innocence, free appraisal of evidence. It is obvious that the obligations described by criminal, civil, administrative procedural law differ from each other but there are some joint obligations such as: the obligation to instruct the persons engaged in court’s activity about their whole obligations and rights, the obligations to quick cognise the case. Considering judge’s basic procedural obligations we can not leave out the obligations connected with conducting a trial. The judge’s basic obligation described in substantive law concerns the judge’s obligation to apply and interpret the law independently and impartially with preservation of the highest accuracy. For example in the framework of penal law the judge has to apply the rules of criminal responsibility, the rules of sentencing.
II. The code of judge conduct.
Polish judges do not have the code of judge conduct. The new statute July 27, 2001 of the National Council of the Judiciary proclaimed that the Council is entitled to work out the collection of principles of judge’s ethics. The collection has not been resolved from the comprehensible reasons, yet. In this context there is need to stress that our Council tried to make a list of the rules of judge conduct in the past but the committee was not able to square all the basic rules of conduct.
III. The incompatibilities between the duties of judges and other functions.
In Poland a judge is limited in exercising some fundamental rights and liberties that secure his special official status (independent and subjected only to the Constitution and statutes). As a rule a judge can not take up additional job. But there is one exception. A judge can undertake the scientific or didactic and scientific job if it does not disturb the fulfilment of the judge’s duties and total time of job does not exceed the full time of job employees working on these posts. In main extent the judges take up additional job at university and other high schools. Moreover a judge can not undertake other activity, way of earning money which can prevent him from fulfilment of his duties or diminish trust in his impartiality or bring detriment to the dignity of his office.
The intention of taking up additional job as well as other activities or ways of earning money the judge notifies the adequate organ determined by judge’s post (the president of district or appeal court or supreme courts or Minister of Justice). The above mentioned organs can give objection concerning the judge’s intention of taking up additional job. In that situation governing body of court solves the case in question.
The judge is forbidden to apply for a post as:
1) the member of the management, board of directors or inspection committee of the company of trade law,
2) the member of management, board of directors or inspection committee co-operative society,
3) The member of the management of foundation performing trade activity.
The judge does not possess in Trade Law Company more than ten percent of shares or contributions presenting more than ten percent of initial capital. Judge is also forbidden to perform the trade activity on his own account or join with others and administer that activity or fill the duties as a representative or plenipotentiary in performing that activity.
During his term of office a judge cannot belong to a political party or to take part in political activity. According to article 178 item 3 of Polish Constitution judge shall not belong to a political party, a trade union or perform public activities incompatible with the principle of independence of the courts and judges. However it does not mean that judge is forbidden to apply for seat in eligible organs.
The judge applies for the seat in Parliament (The Chamber of Deputies or in Senate) or in organs of territorial autonomy is granted leave without pay on term of election campaign. The judge nominated, appointed or elected for the function in state organs, organs of territorial autonomy, in diplomatic or consular service or in organs of international organisation and supranational organisations acting according to the treaties ratified by Republic of Poland, is obligated to renounce his post unless he goes into the state of retirement. The judge renounced his post because of reasons mentioned above may return to his office and previous post if the interruption in judge’s duties does not take more than nine year unless he has performed judge’s or prosecutor’s duties in international or supranational judicial organs. In these cases the National Council of the Judiciary on initiative of interested submitted the President of Republic of Poland motion for appointment to judge office unless he does not fulfil the conditions needed for appointment. This appointment procedure is set in motion independently of number of free posts.
The judge called up to the non-active service can not perform his duties. His rights and duties undergo suspension for the time of his service. The judge however keeps his post.
IV. The assurance of judge impartiality.
Polish procedural (civil and criminal) law takes care to assure the judge’s impartial participation in the cases cognised in civil and criminal proceeding. For this purpose the institution of judge exception from hearing the case was established. The exception concerns the judge whose participation in cognisance of case would cause the doubts with reference to his impartiality within hearing and adjudication. The institution of judge exception is treated as a procedural guarantee of judge’s impartiality1. According to the polish law we can mark out two groups of reasons justified the judge’ s exception. The first group concerns the reason justifying exception of judge by virtue of law (iudex inhabilis). In this event statutes strictly specified the reason of exception and assented that the judges under any circumstances can cognise the case. According to the civil proceeding law the judge is excluded by virtue of law in following events:
1) in case in which he is litigant or is bound with one of the parties in such legal relation that the result of case influences his rights or obligations,
2) in case of his family, relatives, persons bound with him on the adoption, protection and guardianship grounds
3) in the cases in which he was or is the attorney ad litem or legal adviser of one of the parties,
4) in the case in which in lower instance he took part in passing complained judgement.
Additionally the criminal proceeding code statues that the judge is excluded when:
1) the case directly concerns him,
2) he was the witness of act being matter of proceeding or in that case he was interrogated a witness or was an expert,
3) took part in case as a prosecutor, counsel for the defence, attorney, statutory agent , or led preparatory proceeding,
4) took part in passing judgement which has been reversed or to which invalidity has been ascertained,
5) took part in passing decision of conditional discontinuance of proceeding or passing judgement against which the objection has been notified.
The second group concerns reason justifying the exception of judge on judge’s or parties motion. The event of iudex suspectus related to the situations when statutes obligate to investigate whether in concrete case the judge should not cognise it. The procedural codes do not mention in detail the reason justifying the exception on that motion. It would be difficult to describe all circumstances caused that exception. The criminal proceeding code statutes that the court excepts a judge on motion if there are the circumstances, which would evoke doubts with reference to judge’s impartiality. The motion of judge exception should be lodged before opening of court proceeding unless the exception grounds have arisen or have been known to the parties after opening of proceeding. The civil proceeding code statutes that the judge’s exception on motion is possible if between judge and one of the parties occurs personal relation that would cause doubts concerning his impartiality.
V. The responsibility of judge.
Disciplinary responsibility of Polish judges is one of the few types of judge legal responsibility for acts committed in the performance of their duties. The rules and grounds of disciplinary proceedings are published in statutes of structure of courts. Generally speaking the judges of courts bear the disciplinary responsibility for official misdemeanours and disparagement of the dignity of their offices. Besides the statute of constitution of common courts ordains as a disciplinary misdemeanours the obvious and gross infringement of rules of the law. The structural provisions concerning military judges also recognise as disciplinary misdemeanours, the violation of military discipline and rules of soldier honour and dignity. However, sometimes the disciplinary misdemeanours comprises the features of criminal offences and judge can bear criminal responsibility (determined by substantive penal law) for that act which is described in penal law (with reservation of immunity). Polish judges do not have the civil immunity and they can bear the pecuniary responsibility (civil or labour)2.
With reference to judge penal and administrative responsibility I have to stress that judge is liable to these sorts of responsibilities only for permission of competent disciplinary court. Judge also can not be detained without permission of disciplinary court. According to art. 80 § 1 statute on constitution of common courts, art. 27 section 1 statute of the Supreme Court a judge can not be detained or prosecuted without permission of adequate disciplinary court.
There are two scopes of formal judicial immunity mentioned above3. The first concerns interdiction of judge detention without consent of disciplinary court (personal inviolability). The notion “detention” should be considered in wide range. It concerns all sorts of deprivation of liberty even only provisional carried out by entitled organs. This interpretation was derived from judgement on 28 January 1991 of Constitutional Tribunal that referred to parliamentary immunity. I share opinion that this interpretation should be used per analogiam to judicial immunity4. The interdiction of judge detention is not in force in the case of judge catch in act (in flagrante delicto) namely in time of perpetration of a criminal offence or in time of it ending if the detention is essential to ensure the due course of proceeding.
The president of adequate court (with reference to common judges-appeal court) is notified immediately about judge’s detention. He is entitled to release a judge. The Minister of Justice and the National Council of the Judiciary are notified about judge’s detention, as well. In the case of judge catch in flagrante delicto and if the dignity of the court or serious official interests due to the type of act committed by a judge require immediate removal of a judge from his office, the president of the court can order the immediate break in his official duties till the time of the disciplinary court resolution no longer than a month. The president of the court notifies the disciplinary court about his order. The disciplinary court without delay after hearing the disciplinary advocate and a judge, unless it is impossible, passes resolution of judge suspension in performance of his duties or reverses order of break. The judge has the right to appeal against the resolution of suspension in performance of his duties and the disciplinary advocate can appeal against resolution of reversal of order.
The second scope refers to interdiction of judge penal or administrative prosecution.
The penal responsibility concerns exclusively responsibility for offences. It is worth stressing that judge bears only disciplinary responsibility for petty offences (substantive immunity- art. 81 the statute on common courts, art. 27 section 4 the statute of the Supreme Court).
Generally the public prosecutor submits the disciplinary court the request concerning permission to prosecute a judge.
Till the taking up of the resolution regarding permission for penal or administrative prosecution of the judge it is allowed to undertake the act of great urgency. The disciplinary court can refuse the permission to prosecute of the judge. In the case of negative resolution the interested organ or person can lodge the complaint to the disciplinary court of second instance. In opposite situation a judge can submit the complaint to the above-mentioned court. Giving the permission for judge’s prosecution the disciplinary court suspends the judge ex officio in performance of his duties. In that case the disciplinary court reduces in the limits from 25 % to 50 % the amount of his remuneration for the time of his suspension. In the case of discontinuance of the disciplinary proceeding or exculpation of a judge, the detained remuneration has to be repaid. When the disciplinary court gives permission for judge’s prosecution the judge bears the responsibility for committed criminal act according to the rules described in penal code. In this context it should be indicated that the jurisdiction of Polish disciplinary courts in the cases concerning the permission of judge prosecution uniformly accepted that this permission takes place only when collected sufficient evidences would bring to the verdict of guilty. This requirement presents the higher rigour than the rigour binding in the event of instituting the preparatory proceeding when the “sufficient justification of suspicion” is required5.
Judge’s civil responsibility.
According to art. 417 of civil code the State Treasury bears the civil responsibility for damages caused by a judge the third person in the performance of entrusted actions. The responsibility of State Treasury has exclusive character in the case of unlawful action of state official (without judge’s guilt). When the judge causes damage from unintentional guilt, the responsibility of State Treasury has exclusive character (art. 120 § 1 of labour code). When the State Treasury (court as a labour company) compensates the damage he acquires in relation to the judge the right of recourse limited to the extent of judge three-month remuneration (art. art. 119, 120 § 2 of labour code). When the damage is exclusively caused from intentional guilt the judge bears the total joint responsibility with the State Treasury (art. 441 § 1 of civil code). In this event the judge’s responsibility is based on art. 415 of civil code6. I have to stress that art. 120 of labour code do not apply to the lay judges who are not the state officials.
Sometimes the State Treasury does not bear the civil responsibility -according to the provisions of civil code- for the unlawful acts of state officials committed in performance of entrusted actions causing damage (judge with reference to art. 417 § 2 of civil code is consider as a state official). But the injured in the cases of bodily injury or health disorder or lost breadwinner effected difficult financial situation can claim the State Treasury of total or partial compensation of damage on the grounds on principle of community life (art. 419 of civil code). In this case the responsibility of judge is excluded.
Considering the responsibility for damages caused by a judge I can not pass over the responsibility for damages resulted from judgements. This very susceptible subject touching the rule of independence of a judge manifested also in the right to free appraisal of facts and circumstances regarding the case cognises by a judge. The judge’s fault can be the ground of appeal, but can not cause a responsibility of judge or State Treasury. The similar situation we met in the case of wrong interpretation of law. The faults may lead to passing wrong judgements. As a rule wrong verdict does not generate the judge’s and State Treasury’s responsibility7. In this context I would like to point out that according to the Polish civil jurisdiction the judge who in performance of his judicial duties infringed the personal rights of other people can not be sued in the case of protection of personal rights on the civil law’s ground (part of verdict 8 of February, 1991 of the Supreme Court, ref. I CR 791/90). This point of view resulted from rule of judge independence which states that judge’s infringement of personal rights within performance of his judicial duties can be vindicated only in disciplinary proceeding. But that point of view has been criticised.
Considering the exclusion of responsibility of judge or State Treasury I have to stress, that there are some exceptions to the rule. According to art 552 of criminal proceeding in the case of confirmation of wrong criminal judgement condemned for punishment or ordered provisional custody the accused is entitled to take legal action against State Treasury to compensate damage and harm. The notion “confirmation” means that the responsibility of State Treasury takes place if the accused in the result of renewal of proceeding, cassation or invalidation of judgement was acquitted or condemned to mild punishment. When the State Treasury compensates the damage or harm or both claims, he has the right of recourse to the person whose illegal act caused the wrong condemnation or undoubtedly wrong provisional custody (art. 557 of criminal proceeding code). The complaint comprises that above-mentioned claims should be instituted in civil proceeding. The criminal proceeding code established independent ground of responsibility of the State Treasury for wrong condemnation or custody. This ground differs from responsibility of the State Treasury indicated in art. 418 of civil code. According to this article the State Treasury bears the responsibility for damage caused by a state official in consequence of passing judgement or order. The State Treasury bears the responsibility only when in the occasion of passing judgement or order the breach of the law prosecuted in the criminal or disciplinary proceeding was ascertained. In this event the perpetrator’s guilt has to be confirmed in criminal judgement or in disciplinary verdict. However the Constitutional Tribunal in judgement passed in December 4, 2001 (ref. SK 18/2000) called in question the compliance of this provision with provisions of Polish Constitution concerning the responsibility for damage caused by state functionaries (art.77 section 1). The elimination art. 418 of civil code from the legal system in consequence of The Constitutional Tribunal judgement causes situation that the responsibility of The State Treasury for court’s unlawful judgements or orders will be based on general prerequisites of responsibility described in art. 417 of civil code.
The grounds and scope of disciplinary responsibility.
As it was said a judge can bear as a rule disciplinary responsibility for: 1) official misdemeanours and 2) disparagement of the dignity of his office (disciplinary misdemeanours).
The legislator did not define precisely facts of cases and did any direct instructions approximate the essence of the designations mentioned above. So that in the literature we can meet the opinion that the lack of reference in statute of common courts to the penal code causes that in the framework of disciplinary responsibility the original approach to the question of guilt and its sorts should be used8. We can also meet the different point of view showing us that the statute of structures of common courts enacts through the medium of suitable application of provisions of criminal proceeding code, the structure of perquisites of disciplinary responsibility approximate to the penal responsibility9. The new statute of constitution of common courts introduced the new institution of disciplinary responsibility characteristic for penal law-the renouncement of inflicting a punishment in the case of lower importance of disciplinary misdemeanour. It would suggest that the prerequisites of judge disciplinary responsibility approach to the rules of penal responsibility.
Ad.1 In my opinion-do not embark upon legal discussion-we can generally admit that phrase “official misdemeanour “comprises the facts of cases described judge’s culpable action (abandonment) does not suit his official obligations. Thus the judge’s action (abandonment) depends on his will and the possibility to behave10. The judge’s obligation resulted directly from the provision of the law or commission issued by the organ of the court in the framework of administrative activity. It is obvious that this commission can not encroach on sphere of independence of judge. Following strictly the text of statute of structure of common courts we would have to admit that judge’s all acts incompatible with his obligations are official misdemeanour. But we have to reject this formal approach to the official appraisal of judge activity in the context of his disciplinary responsibility. So I support the point of view indicating the need to delimit the act violation of, which can cause the disciplinary responsibility from, the faulty act deserves official remark but does not deserve the qualification of official misdemeanour. The criterion of that delimitation should be connected with such facts as the importance of judge act in aspect of his all-official duties, the scope of negative consequences in the legal and social spheres of official misdemeanour. The jurisdiction of polish disciplinary courts shows us that the official misdemeanour has been graded according to level of its negative influence on performance of judge duties or dignity of his office11. In practice of disciplinary courts the following acts were recognised as official misdemeanour: unpunctual drawing up the reasons for the sentence, informal correction in the record of trial, supplementation in pronounced judgements, taking up additional job without defined notification, the loss of court acts.
Besides the statute of constitution of common courts in art. 107 § 1 gives us instruction with reference to which the obvious and gross infringement of rules of the law is regarded as the official misdemeanour as well. In this framework I have to point out that judge’s action within the limit of judicial independence although the action would be objectively mistaken (e.g. wrong interpretation of law, improper course of proceeding) excludes his disciplinary responsibility. But the jurisdiction of disciplinary courts do not admit as an judge’s act within judicial independence: the passing judgement without any legal grounds, gross infringement of substantive and procedural law led to total deprivation of defence12. In my opinion the judge’s acts (beyond positive law) mentioned above could be recognised as that category of disciplinary misdemeanour.
The peculiar form of official responsibility is so-called instance reproach takes place when the court of appeal ascertains the obvious infringement of law. It concerns a judge in the event of the court composition of one judge13.
Ad. 2. The notion “ disparagement of the dignity of judge office” has general character similar to the notion of “official misdemeanour”. The substance of that notion must be understood very widely. It has to comprise facts of case connected directly with judge’s duties (resulted even from his oath), his private life and out of court activity. In that context the all sorts of infringement of penal law, the judge’s obvious violation of civil, family, administrative obligations must be considered as a breach of dignity of judge office14.
To conclude I have to stress that in practice there are the difficulties of proper qualification of judge acts to one of the group of disciplinary misdemeanour. The solution of those problems should be searched in jurisdiction of disciplinary courts. Considering the judge’s breach of the dignity of his office I can not pass over the possibility of removing judge from his office specified in the act December 3, 1998 on the disciplinary responsibility of judges comprised judiciary independence in the year 1944-1989. The act concerns judges who comprised their judiciary independence in handing down verdicts between 1944-1989 in cases constituting a form of repression against persons engaged in activities towards the independence of Poland, political activities, activities in defence of human rights or for the preservation of fundamental human rights. Those judges shall not be subject to regulations cancel prescription of disciplinary misdemeanours. The disciplinary court may sentence them convicted of the act mentioned above to discharge from judiciary. The act specified above caused many controversies on account of annulment prescription of disciplinary misdemeanours. But the Constitutional Tribunal accepted that regulation. The Tribunal stressed that transition from totalitarian to democratic social policy might exceptionally assume the forms that in ordinary conditions wouldn’t have justification. Disciplinary proceeding in cases mentioned above initiated prior to December 31, 2002 shall proceed until a legally binding and valid result is achieved.
We should also remember that a judge in the state of retirement is obligated to preserve the dignity of judge office. For disparagement of the dignity of judge office after transition into the state of retirement and for disparagement of the dignity of judge office during his service a judge in the state of retirement bears disciplinary responsibility. To the disciplinary responsibility concerning judge in the state of retirement the principles of disciplinary responsibility are applicable respectively. But in place of penalties provided for judge the disciplinary court can apply: 1) reproof, 2) reprimand, 3) suspension of the revaluation of salary for the period for one to three years, 4) deprivation of the state of retirement including the right to the salary (higher than common pension).
Organisation of the disciplinary courts and disciplinary proceeding.
In Poland each type of courts (common courts, administrative court, military courts, The Supreme Court) have separate system of disciplinary courts.
There are the following disciplinary courts for judges of common courts:
1) in first instance- courts of appeal,
2) In second instance- Supreme Court.
Territorial jurisdiction of the disciplinary court for judges of common and military courts is connected with the district where the accused judge is on duty.
The disciplinary courts adjudicate in panel of three judges drawn by lot from all judges from adequate disciplinary courts. In that panel at least one judge should descend from criminal section.
The military judges have the following disciplinary courts:
1) in first instance- military district courts,
2) in second instance- Supreme Court-Military Chamber.
There are the following disciplinary courts for the judges of the Supreme Court or of the Supreme Administrative Court:
1) in first instance-Supreme Court or Supreme Administrative Court in panel of three judges of adequate court,
2) in second instance–Supreme Court or Supreme Administrative Court in panel of seven judges of adequate court. These panels of judges are appointed by governing body of the Supreme Court or the Supreme Administrative Court from the lists of all judges from these courts.
In disciplinary proceeding before courts mentioned above take part separate disciplinary advocate. The disciplinary advocate for judges of common courts is elected by National Council of the Judiciary (according to art. 29 § 1 point 7, art. 31 § 1 point 7 and art. 34 point 5 statute on constitution of common courts) for four years from candidates submitted by the general assemblies of appeal judges. The deputies of disciplinary advocate are elected for two years by governing bodies of respect appeal or district court. Assembly of military judges elects the „military” disciplinary advocate for four years and he has no deputy. The separate disciplinary advocate for judges of Supreme Court and judges of Supreme Administrative Court and his deputy or deputies are elected for four years by governing body of these courts. The disciplinary advocates are legally entitled prosecutors acting in disciplinary court in cases of judge disciplinary misdemeanour. The disciplinary advocate for common judges takes part in cases of appeal judges as well as president and vice- president of the district courts. The deputies of the disciplinary advocate are legally entitled prosecutors in disciplinary cases of others judges.
The disciplinary advocate undertakes disciplinary action for request of Minister of Justice, the First President of the Supreme Court, president of appeal and district courts, governing bodies of appeal or district courts, the National Council of the Judiciary and also on his own initiative after introductory explanation of circumstances necessary to fix features of misdemeanour and also after judge’s statement. The disciplinary advocate is bound by indication of entitled organs in the framework of making explanation proceeding. After the explanation proceeding if there are grounds to initiate disciplinary proceeding, the disciplinary advocate institutes the disciplinary proceeding and informs judge in written form of the charges levelled against him. The judge is entitled to submit a motion as to evidence. After expiration of time (fourteen days) assigned for lodge evidence or after proving the disciplinary advocate submits motion to adequate disciplinary court for cognisance of the disciplinary case. If there are no grounds to institute disciplinary proceeding on motion of entitled organs the disciplinary advocate passes the decision of refusal to start the proceeding. That decision is transferred to the entitled organs and governing body of adequate court and these parties can lodge the complaint to the disciplinary court.
The selected important rights of all disciplinary advocates.
The disciplinary advocate in course of disciplinary proceeding especially: 1) express consent to extend the motion of cognisance of disciplinary case for another misdemeanour committed by a judge if it shows during proceeding, 2) undertake disciplinary actions after legally valid termination of the criminal proceeding against a judge if the disciplinary proceeding was not instituted even if the judge was acquitted in criminal proceeding, 3) can lodge an appeal from judgement of disciplinary court of first instance, 4) can lodge the motion to institute a proceeding de novo also in favour in the case of judge death, 5) submit complaint on resolution of disciplinary court of refusing consent to prosecute a judge, 6) take part in proceeding concerning judge’s transfer to another court for reason of dignity of judge post and in proceeding of judge suspension in performance of official duties.
The hearing-basic rules.
The disciplinary trial is opened for public. Exception to the open trial comes from important social private and state reasons. The statute of constitution of common courts presumes that the disciplinary proceeding should be quick. According to art. 115 § 2 between submission of motion for cognisance of case and time of trial should not elapse a month. Besides the appeal measure should be cognised within two months from the day of submission of that measure (art. 121 § 2). The accused judge may appoint a counsel from among judges or advocates. In the course of disciplinary proceeding judge-according to criminal proceeding code which is applied respectively to the disciplinary proceeding in the cases not regulated in it-can present explanation, can lodge evidence motions, may put a questions to the witnesses. To speak generally the judge’s rights to defence in disciplinary proceeding are fully secured. In the case of dissolvement of official relation of the judge during the disciplinary proceeding the proceeding goes on. If the accused judge takes up job in state office, as a barrister or legal advisor or a notary the court sends disciplinary judgement respectively to the Council of the Bar, to the National Council of Legal Adviser, or to the National Notary Council. If the disciplinary misconduct comprises the features of offence the disciplinary court cognises ex officio the case in the framework of permission for prosecuting judge.
After finishing the disciplinary proceeding when collected evidences confirm the judge’s disciplinary misdemeanour the following disciplinary punishment can be inflicted:
3) removal from the occupied function,
4) transfer to another official position,
5) discharge from the judiciary.
The disciplinary court can inform public opinion of legally valid judgement. Infliction of punishment mentioned in point 3 or 4 include excluding of the possibility of promotion to a higher office during 5 years as well as the inability during this period to take part in governing body of the court and to adjudicate in disciplinary court and recovery of the lost function. Infliction of punishment mentioned in point 5 include the loss of possibility of reappointment to perform judge office.
The accused, the disciplinary advocate as well as the National Council of the Judiciary and Minister of Justice can appeal against the judgement of disciplinary court of first instance but nobody can lodge the cassation against judgement of disciplinary court of second instance. The National Council of the Judiciary, The First President of the Supreme Court and the Minister of Justice in particular cases can move for renewal of disciplinary proceeding.
The final remarks
The above mentioned rules of disciplinary proceeding have been proclaimed October 1, 2002 to improve the effectiveness of that proceeding. The lack of effectiveness of disciplinary proceeding was criticised by the Minister of Justice and the National Council of the Judiciary in the past. The general reason of that state of affairs was the lack of discipline of the participants of the proceeding. But the primary reason of that situation was the former structure of disciplinary courts. The location of seat of disciplinary courts of first and second instance in Warsaw and appointment to members of these courts judges from various courts and courts of different level from the whole country caused that the structure was difficult to steer15. The new structure of disciplinary courts should sanify that situation.