Recently, the Ministry of Justice published another version of the Act on the Restoration of Constitutional Order in the judiciary, which provides, among others, for the withdrawal of about 1.2 1000 judges promoted by the National Judicial Council after 2018. However, the adoption of the fresh law depends on whether Rafał Trzaskowski will be President.
Just pushing through changes and solving the problem of neo-Judges will most likely not end the confusion in the judiciary, due to the fact that it can be expected that then removed or degraded judges – or at least any of them – will fight to reconstruct to office. This is all not conducive to stableness in the judiciary, which, according to the rulings, judges, prosecutors, attorneys and citizens with contact with courts, is on the verge of collapse. Judicial disputes are taking longer and longer, especially in civilian matters (i.e. family, economic, labour etc.).
Since 2011, the time to wait for the judgement of the first instance has increased by almost 70%. Longer processes include a longer wait for payment, return to work, compensation or resolution of the dispute against the background of the inheritance. It is besides essential for the State Treasury to pay compensation for chronicity, although the low amounts of benefits granted are mediocre consolation to the parties.
Weight of problems
Therefore, 61 percent of experts surveyed by the “Rzeczpospolita” within the panel of lawyers believe that lengthy trials are a more serious problem of justice than a dispute around neo-judges.
– Although this view is not popular in the legal community and possibly any people will resent what I will say, but the dispute around alleged neo-judges is incomprehensible, irrelevant, third-rate and "insider" for most of the society,” says Prof. Krzysztof Kozmiński of the University of Warsaw, managing partner at Jabłoński Kozmiński. – Entrepreneurs and citizens, not only our customers, want first of all unchangeable law, effective solutions (i.e. those that cost less) do not make unnecessary bureaucracy), efficient courts, transparent procedures and assurance that after a final ruling we know where we stand, and politicians will no longer "mix" the case. Unfortunately, this is not what we are looking forward to – regardless of who wins the upcoming presidential elections and subsequent parliamentary elections – the expert points out.
Maciej Zaborowski, from Kopieć & Zaborowski, points out that the lengthened duration of proceedings is compatible with the constitutional right of citizens to court.
– The deficiency of judgement for many months, and frequently years, means not only frustration, but besides real damage: frozen property, inability to claim, failure of trust in the state's institutions. Citizens want a smooth and equitable justice here and now. Their expectations are simple: accessibility, transparency and predictability. And it is these expectations that are most disappointed present – says mec. Zaborowski added that fast and professional organisational modernisation of courts is necessary: digitisation, automation, human resources support and dissemination of alternate dispute resolution methods.
– Otherwise neither the regulation of law nor the efficiency of the proceedings will be fulfilled. And then this is not an abstract dispute over judges, but citizens without real access to justice will be the biggest losers," the expert added.
On the another hand, Arkadiusz Radwan of the Allerhand Institute notes that the protracted dispute over judges' nominations will only contribute to further polarization and deepening of the collapse in the judiciary.
– What any electors believe is that the Law and Justice have destroyed the courts, and that in another voters it will strengthen the belief that judges are a peculiar caste and request a improvement with a firm hand. Without a cross-party compromise, it is impossible to resolve the dispute over the form of the judiciary in Poland – the expert believes.
Improvement of work
At the same time, as much as 82% of our experts believe that reforms that will reduce the time spent in the courts should be introduced regardless of erstwhile the crisis of judicial appointments will be resolved.
– To this end, full digitisation (digitisation), staff growth in judicial administration and changes in the remuneration strategy should be carried out. It is besides essential to repeal the provisions on separate proceedings in economical matters, which, contrary to the assumption, did not velocity up the settlement of cases – says Mr Piotr Podgórski, associate of the board of the Entrepreneurship Federation.pl. He adds that it is essential to advance out-of-court dispute resolution and professionalisation of judicial experts.
– As the past of our justice strategy shows, we are going around in circles. No solutions have been introduced in the last fewer years, which would actually lead to shortening the time of case designation – says Grzegorz Gębka, taxation advisor. Although 2 major amendments to the Code of civilian Procedure came into force in 2019 and 2023, the primary nonsubjective of which was to velocity up the recognition of cases, but this effect was not achieved (why the nonsubjective circumstances in the form of the Covid-19 pandemic or the avalanche impact of the Franc lawsuits were besides not conducive).
However, any of the changes introduced in fresh years to improve the procedure have been made at the expense of procedural guarantees (one-man cases alternatively of three-man cases, classified sittings alternatively of hearings etc.).
Therefore, the civilian Law Codification Commission has prepared an amendment which withdraws these amendments. In addition, the task prolongs the time limits for bringing appeals and eliminates the alleged horizontal complaints (which the court recognizes the same instance alternatively than the higher order), which will inevitably further slow down the examination of cases.
On the another hand, the government is about to adopt a draft Franc Act which is intended to unlock the courts with “cork” credit claims. Further work is besides ongoing on the digitisation of justice and strengthening the judicial staff. But all of this may not be adequate if the court's cognition is not limited.
Limiting cognition?
In turn, 70% of the experts of the Panel of Lawyers "Rz" believe that bringing certain cases out of the courts can importantly influence the acceleration of judicial processes without harming the quality of case resolution for citizens.
– I repeat this consistently for many years: it is impossible to have a cookie and eat a cookie, i.e. to keep widely understood constitutional rights to court, duality, etc., and at the same time to anticipate courts to operate smoothly. It is essential to set the case bold and fair: the state court should be the last resort, reserved for serious matters which cannot be "leaded" outside of Judaism, says Prof. Krzysztof Kozmiński. In his opinion, many issues can be entrusted – and this truly does not harm the quality of their resolution – to another entities and procedures, including, for example, public administrations or arbitration courts.
Prof. Rafał Adamus, on the another hand, reserves that a citizen should have the right to alternatively settle matters: either before a court or outside a court, but with the anticipation of recourse to a court.
Prof. Grzegorz Sibig of the Institute of Legal Sciences of the Polish Academy of Sciences is opposed. In his opinion, the main problem is not the excess cases in the courts, but the correct organisation in dealing with these cases and preparing, besides personal, the full judicial apparatus. – In this respect, solutions should be sought. Dealing with a case, especially the disputed one, by an independent court is 1 of the most crucial values that creates and cements order in the state – the lawyer points out.
