Author: Tomasz Sowa, LL.M.
- The article concerns interesting procedural issues related to the exclusion of a judge from adjudicating in a case due to his lack of impartiality. Research conducted in Great Britain and Australia indicates that the concept of an “outside observer”, also used in Polish jurisprudence, is at odds with the actual perception of a judge’s impartiality by people outside the justice system. Tomasz Sowa (partner) conducted a simplified empirical study for this short article to check how this concept operates in Poland. The results of this preliminary study indicate that the problem may be similar in every jurisdiction, and it is worth conducting more extensive research in this area with the participation of specialists in court proceedings and psychologists.
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Artykuł dotyczy ciekawych zagadnień proceduralnych związanych z wyłączeniem sędziego od orzekania w sprawie ze względu na jego brak bezstronności. Badania przeprowadzone w Wielkiej Brytanii i Australii wskazują, że koncepcja „obserwatora zewnętrznego”, stosowana także w polskim orzecznictwie, kłóci się z faktycznym postrzeganiem bezstronności sędziego przez osoby spoza wymiaru sprawiedliwości. Tomasz Sowa (partner) na potrzeby tego krótkiego artykułu przeprowadził uproszczone badanie empiryczne, aby sprawdzić, jak koncepcja ta funkcjonuje w Polsce. Wyniki tego wstępnego badania wskazują, że problem może występować podobnie w każdej jurysdykcji, dlatego warto przeprowadzić szersze badania w tym obszarze z udziałem specjalistów postępowania sądowego i psychologów.
I. Introduction
The judiciary’s legitimacy depends on the public having confidence in the legal system.[1] The level of that confidence depends on many factors, but one of the critical elements is judicial impartiality. This concept is a milestone of each democracy. Litigants should have the right of equal access to a fair hearing by a judge who brings an impartial mind to the resolution of the case. However, it is not only that, or it is not that simple. Litigants should also perceive the judge hearing their case to be impartial to maintain (or gain) trust in the system. This is more or less the embodiment of the famous, often quoted maxim of Lord Hewart, who stated: “justice must not only be done but must also be seen to be done”.[2] This paper is aimed at assessing how this goal is being achieved in Polish jurisdiction, i.e. what kind of system solutions exist to eliminate partiality from the case, what kind of solutions are to support litigant’s confidence in the system and how do they work in practice from a psychological perspective.
The paper consists of four sections. I section is a short general introduction. II Section constitutes a necessary introduction about the Polish system, where the author describes the legal institutions aimed at recusal of potentially biased judges from hearing the case, compares it shortly with the law on bias within UK and Australia jurisdiction, and refers to the last empirical research made to capture the public perspective on controversial issues regarding judges impartiality. III section examines the author’s simple survey findings, spread between Polish citizens. The last, IV section, includes a conclusion, where he tries to sum up the findings simply.
II. The law on disqualification of a judge from hearing the case
Guarantees of impartiality in Poland
The Constitution of the Republic of Poland guarantees the right to an impartial hearing.[3] It can also be found in Article 6 of the European Convention on the Human Rights.[4] The right to an impartial hearing is considered the central right that is supposed to characterise the system of dispute resolution by the courts, which should achieve legitimacy and public acceptance of judicial decisions.[5]
In each of every procedural law where judges are involved in decision making, impartiality is being guaranteed mainly by two institutions, i.e. recusal of the judge by virtue of the statute (iudex inhabilis), if particular, strict conditions are met in the facts of the case, or recusal of the judge, if none of these conditions are met, but there are still “reasonable doubts to the impartiality” of the judge (iudex suspectus). For instance, iudex inhabilis will be found in cases to which the judge is a party or remains in such legal relation with one of the parties that the outcome of the case affects his rights or obligations (nemo iudex in causa sua, Article 48 § 1 (1) Code of the Civil Procedure – “CCP”[6]). Shortly, the iudex inhabilis constitutes the most typical, standard, predictable cases of a qualified judge’s impartiality at risk due to the potentially highest level of this threat.[7] Where the facts are not that “typical” or “standard”, a judge may nonetheless be disqualified on that judge’s or the party’s motion if there are circumstances that could give rise to reasonable doubt as to the impartiality of the judge in the case concerned (Article 49 CCP). This paper is focused on this second situation.
The issues that may affect a judge’s impartiality may constitute an extensive combination of various and unpredictable circumstances that are to occur in a given situation, which may determine the lack of skills or the ability to overcome them in a way that excludes loss of confidence or impairment of impartiality.[8] The court excludes a judge if it finds the possibility of reasonable doubt, regardless of its own position about its validity.[9] The reasonable doubts to the impartiality must exist objectively and be subject to external verification, not only a subjective belief of a specific person.[10] According to the well-established line, regardless of whether civil , criminal or administrative court proceeding, the assessment of the “reasonable doubts to the impartiality” should be made using a test of an “outside observer” – “OO”[11] This test is developed by the judiciary and does not have any origins in the legislation. The main question is – who is the OO exactly? What characteristics does she or he have? To what exactly she or he stands on the “outside”? These kinds of questions have not only been answered in the past Polish jurisprudence, but have also never been raised.[12] To establish a fairground for further psychological perspective, the author has to decode the basics of the concept from past rulings.
The concept of the outside observer
The OO concept is widely accepted in Polish jurisprudence. The Constitutional Tribunal of Poland played an important role in strengthening and spreading this idea among the courts of law by stating that the perception of the judiciary by OO is of importance in shaping its objective image.[13]
In subsequent Resolution of the Supreme Court, this concept seems to be developed. The Supreme Court stated that in the case where circumstances may cause a “reflection” of “each reasonable thinking observer” that they collide with the impartiality of a judge, such a judge should be recused from hearing the case.[14] Thus, it appears that the OO should not only stand on the outside but also be reasonable. This approach narrows the concept, as it does not refer to every observer but to the observer having something more than just a mere existence. In the other judgment, where the Supreme Court was describing the OO it used the word “awareness” instead of “reasonableness”. The Supreme Court was referring specifically to the awareness of the principals of the criminal procedure, such as that different authorities conduct the prosecution of suspects at the initial stage of a criminal proceeding than adjudicating to the criminal liability of these suspects during court proceedings.[15] Thus, it appears that there is no practical difference between the meaning of the term “reasonableness” and “awareness” respectively, and that inconsistency was not to alter the sense of the concept. The reasonable man may be expected at least to “be aware” that the police and prosecutors do not rule over the liability of the suspects.[16] However, in the vast majority of the rulings on claims to disqualify judges, the courts use only the term OO, without any adjectives or any other reference to some additional characteristics.[17] Does it mean the courts lower the standard provided by the Supreme Court? The analysis do not support this notion. The assessment of ratios of the judgments allows implying that the courts demand from outside observers a little more than the mere existence on the outside of the courtroom.
The similarity of the OO to the “Fair-Minded Observer”
In this context, the model of the OO appears to be very similar to a model of a “fair-minded observer” (FMO), which is a model used in some common law jurisdictions in order to test for the apparent bias (or apprehended bias). Bias in itself is described as prejudice, partiality, a lack of disinterestedness.[18] Following a number of cases, the High Court of Australia described it as to whether the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[19]
The test is very similar to the Polish institution for disqualifying a judge due to reasonable doubts about impartiality. The concept of FMO, exactly like the concept of the OO, has its origins in jurisprudence and it is a judiciary that developed it from the very beginning.[20] In practice, the application of this test in Australia involves the following steps:
- the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits (…);
- the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits (…).[21]
It works similarly in Poland too. The Supreme Court of Poland stated that a litigant seeking disqualification of a judge should lend credence to the occurrence of such circumstances that may objectively affect the impartiality of judges. It is not enough to present the subjective feelings and assumptions of the applicant, not based on objective, rational criteria.[22] This ratio corresponds with the first part of test (a) used in Australia. The courts are omitting the second part (b), but it is clear the application for disqualification must express how the circumstances raise doubts to the impartiality of a judge (a casual impact). It is difficult to claim “reasonable doubts” without indicating what kind of doubts occur in the case. The law on bias in the UK is similar to Australia, with some differences that do not significantly impact this paper.[23] These two jurisdictions are invoked because this is where the first empirical research on the public perspective has been made.
However, the level of knowledge to be imputed by courts to each model appears to be different in different jurisdictions. In Australia, the courts use a model of “fair-minded lay observer”, omitting the characteristic of being “informed” or “well informed”, while in the United Kingdom, this is more likely to be the case.[24] In Poland, the courts appeal to “reasonable” or “aware” outside observers or omit any characteristic that they suppose to have. Thus, the Polish model
seems to have more features in common with the Australian model, also called a “bystander”,[25] a similar term to the OO even from a lexical perspective. However, despite the jurisdiction, the most important feature in common is that the observer is a member of society. If the law on disqualification (apprehended bias) is to maintain public confidence in the legal system, then, consequently, the concept of FMO should reflect the public, not judiciary, opinion on factors leading to doubts to the impartiality of a judge. However, according to the last psychological research, it is not always the case.
The public perception and the level of knowledge imputed by courts to the FMO
Even before any psychological research has been made, some have raised concerns that the FMO does not reflect an average public member or may not reasonably reflect general public opinion.[26] Some supposed that these concerns may come from the fact that judges belong to a “relatively homogeneous social group”, which may not be in the best position to draw an accurate picture of the observer being a member of the public.[27] For instance, in Hart v. Relentless Records, the court stated that the FMO is aware of aspects of the law relating to misrepresentation, causation and security for costs, as well as the meaning of “goodwill”.[28] This is just one example from English jurisdiction illustrating that the judiciary is prone to assign comprehension, sense or knowledge of the law to the FMO at the level, which does not seem to be accurate at first glance. This may be the case in Poland too. To the author’s best knowledge, neither Polish legal academic writing nor jurisprudence has yet examined this gap and even noticed that such gap may exist and what kind of effects it may have on the judiciary’s legitimacy in the broad sense. This is of particular importance as only 34% of Poles believe that Polish judges are independent (in a sense covering the principle of impartiality),[29] and a significant number of Poles is of the opinion that judges are under interference or pressure from politicians, economic or other specific interest.[30]
The first empirical research, supervised by A. Higgins and I. Levy, revealed that the public think judges should be recused more often than the law of apprehended bias presently requires.[31] The scholars did a survey using the polling company and involved 1036 Australian and 1028 UK respondents (2064 in total) of different demography groups. The survey revealed the stark contrast between the conclusions on disqualification made by the courts and the general public’s opinions, i.e. the public surveyed by the scholars are much more prone to disqualify the judge from hearing cases.[32] The scholars, however, do not assimilate the public opinion with the law on bias. They raise concerns that the FMO used in the tests, whoever it might be, is not representative of the majority or plurality and does not reflect public opinion in many instances, but the law on bias is more than that. It balances different factors, which all together should be taken into account. Nevertheless, the public perspective should not be disregarded in total.[33] Some of their major findings will be discussed later in this paper and compared where appropriate.
III. An attempt to assess the perspective of the “outside obsever”.
Introduction
To the author’s best knowledge, the public perception of reasonable doubts to the impartiality of judges has never been examined in Poland. There are empirical researches on public trust in the system in general,[34] but no empirical studies exist that capture the public’s perspective on court room situations. Therefore, the author attempted to discover that perspective and prepared a simplified survey spread through different social media channels. To be clear, this is not a survey comparable to the one referred to above. The general purpose is the same, but the coverage, a number and variety of respondents, questions, and complexity are just a tiny touch to the one made by A. Higgins and I. Levy. The survey’s real purpose was to verify whether courts may be wrong, but not if they actually are. In other words, the survey was prepared to find out whether it is desirable to do further research in this field but not to make unequivocal conclusions.
About the survey
The survey was conducted from 7th to 18th of January 2022 using Google Forms, and involved 182 polish respondents of different age, gender, education, incomes, etc. However, no data was collected on these characteristics, as it would have no real meaning, considering the number of expected respondents. The author sent the invitation to participate in the survey through different social media channels. Such a small number of respondents expose the results to the risk of errors, but in some questions, the answers were not even close to the evenness, i.e. the majority was so substantial that one can not undermine such results in total and at least second thought over it is required.
The survey consisted of 10 questions. Eight questions were prepared on the real-case scenarios that happened in Polish courts. The author carefully selected these cases from over 800 orders concerning the allegation of reasonable doubts to the impartiality of a judge hearing the case. The orders came from Wolters Kluwer “LEX” database and “Portal Orzeczeń Sądów Powszechnych”, i.e. the database delivered and supervised by the Ministry of Justice. All the cases were filtered and then carefully assessed in terms of the reasoning underlying the applications, quality of order’s justification, and complexity to determine whether a case is not too difficult to describe in the short survey. For instance, the author excluded all the orders, which concerned applications appearing at first glance to be a tactic to delay a proceeding, like the ones where a party file a motion to disqualify the expert witness after delivery of the opinion, which works for the benefit of the other party.[35] The author focused on cases where the applications to disqualify the judge were dismissed and looked a bit controversial in terms of what the public might think, i.e. whether the court view would be shared if the public was asked. The other two questions reflect the questions from the survey conducted by A. Higgins and I. Levy, which the author subjectively considered the most interesting in terms of Polish culture and reality. The general principle was constructing neutral questions in the simplest possible way but, at the same time, corresponding to the maximum extent with the real-case scenarios. The second principle was to limit the survey to ten questions to get as many people involved as possible. The author intentionally omitted multiple-choice and open questions to not discourage people from taking the survey, because the involvement in the survey was free. No guidance as to the significance of impartiality in decision-making was provided to the respondents before they got started, but a very telling picture with a judge’s scale was displayed.
Results
Preliminary issues
The results cast doubts on whether the judges can adequately assess the perspective of bystanders. In none of the cases where a court granted leave to the application for disqualification, the respondents had the opposite view. By contrast, in four cases, where the court dismissed the applications, the respondents had a starkly different view. That constitutes 40% of the whole survey, and it should be kept in mind that two questions were construed on the basis of easy, non-controversial cases, to catch if some details in the facts change the public perspective on the disqualification matter. In four cases, the answers were in line with the courts’ orders, i.e. both the courts and the respondents shared the same opinion as to grounds for disqualification. The answers were almost equally divided between “for” and “against” options in the remaining two questions, with only a plurality to one side or another. Considering a relatively small number of respondents taking part in the survey, one cannot draw a significant conclusion regarding that slight difference, and the author assumes the answers were even.
Sharp contrast
The author starts with responses that stand in the biggest contrast with the court’s rulings. The first scenario concerned the case where the court had to adjudicate over the application for recusal of a judge expressing publicly negative attitudes towards a specific group of judges in Poland. The results were as follows:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?
In the course of the case, it turned out that a party to the proceedings was a judge who adjudicated during martial law,[36] and the judge who is to hear the case several times in his television and press statements expressed a negative attitude towards judges adjudicating during martial law and pointed to the need to punish “court crimes”;
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 7,1 % (13) | 85,7 % (156) | 7,1% (13) |
Notably, in this case, the judge wanted to recuse himself from hearing the case, i.e. none of the parties applied for disqualification. However, the court concluded that the circumstances indicated by the applicant are not the basis for excluding the judge from hearing the case, as he was not able to state unequivocally that his television and press statements concerned directly a judge who was a party to the proceeding before him. Considering the outside observer’s perspective, the court stated that the application should be dismissed. If we look at the answers, it appears that the public does not pay attention to whether the statements concerned directly one of the parties to the proceeding or a group of people to which the party belongs. The absolute majority of respondents believed that the judge should be disqualified from hearing the case, while the court – referring to the outside observer’s perspective – introduced a distinction, which seems to be very far from reasonable. In A. Higgins and I. Levy survey, it was enough for the public to disqualify a judge who was just a member of an association expressing negative attitudes towards a particular group of people, even if the scenario did not provide any information whether that particular judge many any such statement. Moreover, even when the respondents were provided with additional information that was no evidence, the judge held the same views as her fellow members of the association, the pluralty still supported the disqualification.[37] This questions whether judges are aware of how people perceive statements regarding groups representing particular political views, ethnicity, or sexual orientation. The public is aware that a negative attitude toward such a group impacts the impartial mind of a judge hearing the case, which may undermine the courts’ legitimacy.
The other example where the public opinion was in a stark difference to the court adjudicating the application for disqualification is where respondents were asked on matters concerning common interests with one of the parties. Starting from 2004 Poles massively indebted themselves in Swiss franc mortgage credits. The credits offered in Swiss franc were much more advantageous than the same obligation calculated in Polish zloty. The problems of debtors started in 2015 when the exchange rate of CHF/PLN rocketed into the sky. The initial exchange rate of CHF/PLN was around 2.00, but after the pick, it was even around 5.00. The creditors claim that the credit agreements are abusive and therefore invalid because i.a., the banks cannot clearly explain how the difference in exchange rate impacts the credit instalment amount. It is estimated that currently, about 70,000 cases are pending, the vast majority in the first instance.[38] In this case, the judge voluntarily disclosed having a credit on similar terms to the claimant but in a different bank. The respondent bank applied for disqualification stating that the judge can not bring an impartial mind to hear the case, since i.a., the ruling, in this case, may shape the jurisprudence in Swiss francs cases. At the same time, the judge stated she could not exclude the situation that she would file a lawsuit against that other bank one day. The results are as follows:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?
In the course of the so-called “swiss frank case”, it turned out that the judge who was to adjudicate the case concluded a credit agreement on similar terms to the claimant (i.e. the judge has a credit agreement in Swiss francs in another bank, but the terms of the credit disbursement and its repayment are similar to the terms of the credit agreement concluded by the plaintiff with the defendant bank);
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 30,8 % (56) | 61,5 % (112) | 7,7% (14) |
However, the court adjudicating the application for disqualification dismissed it, and stated:
the defendant’s assumption is so far-reaching that it falls only within the sphere of assumptions and suggestions, and not rational premises, which would allow for the formulation of – from the point of view of an outside observer – concerns about the judge’s lack of objectivity (…)There are no rational grounds for stating that the judgment in the present case may have any impact on the shaping of the jurisprudence of common courts.
These results are remarkable since respondents – before answering this question – had to answer the question where the judge had the same agreement under the same condition as the claimant in the case before him. Thus, a scenario made a clear impression that there is a difference between whether a judge has credit in the same or the other bank, even though the obligations under the agreements are similar. The respondents noticed that difference, which impacted the results, but not the general perception the judge should be recused. In the scenario with the same agreement in the same bank, the results were as follows:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
In the course of the so-called “swiss frank case” it turned out that the judge who was to adjudicate in the case concluded the same credit agreement with the defendant bank as the plaintiff (i.e. the judge has a credit agreement in Swiss francs with the same bank and under the same conditions as the plaintiff)
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 12,6 % (23) | 82,4 % (150) | 4,9% (9) |
This case may raise questions about whether judges correctly identify the public perspective on how common interest with one of the parties may impact the judgement legitimacy. From the public perspective having credit in the bank being a party to the case or in another bank does not make a big difference if the agreements are similar. Moreover, if we looked at the issue from other, non public perspectives, we may raise questions of whether a judge in such a case is not susceptible to confirmation or representativeness biases.[39]
The third case comes from the author’s experience and refers to a relatively complex procedural matter of execution proceedings. In short, execution matters in Poland fall under the jurisdiction of district courts and bailiffs at those courts. The court may issue an ex officio order to a bailiff to ensure proper enforcement. The court’s legal assessment in issued orders is binding for the bailiff. In the course of the case, the court issued an order obliging the bailiff to discontinue the proceeding pending for six years. The bailiff issued an order on discontinuation. The executing creditor had a right to appeal from bailiff’s decision, but the competent court to hear the appeal was the one that supervises the enforcement proceeding. According to the rules governing the operation of the ordinary courts,[40] the judge who was supposed to hear the application was the reporting judge supervising the whole enforcement proceeding. Executing creditor applied for disqualification of the judge, but the application was dismissed. The respondents were provided with a simplified scenario, reflecting this case’s general problem.
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?
In the course of the case, the judge ordered the bailiff to discontinue (terminate) the proceedings. The bailiff complied with the order and discontinued the proceedings. A party to the proceeding appealed against the bailiff’s decision. The appeal case is to be examined by the judge who ordered the bailiff to discontinue the proceedings.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 10,4 % (19) | 82,4 % (150) | 7,1% (13) |
This order is not final yet, and the party appealed. Notably, this is the only case picked up for the survey where the court has not referred to the OO perspective. The court rejected the party’s arguments by referrence to other procedural situations, where the same judge is competent to hear the case, like objection to a judgment by default, and therefore rejected allegations of reasonable doubts to the impartiality. However, all invoked like-situations were much different from that. How does it look from the public perspective we can observe above, but even if the assessment has to be made without a reference to the concept of the outside observer, this position is questionable on other grounds too. Through research on judicial decision-making, it was explored that judges may be susceptible to confirmation biases, i.e., the tendency to interpret information in a way that confirms and reinforces pre-existing beliefs and opinions.[41] Thus, reasonable doubts to the impartiality, in this case, may find support in empirical research on how judges decide the cases.
The last question reflects the case of Locabail (UK) Ltd v Bayfield Properties Ltd.[42] This case was not resolved in Poland, which does not mean it could not have been resolved there. The author asked this question because it is fascinating to assess the public’s general attitude in Poland compared to the UK or Australia, which have a very different legal culture regarding acceptable contacts between various legal professions. Generally, the judiciary in Poland isolates itself from contact with others in the legal professions, so the author expected more people to support disqualification. The results meet these expectations and are as follows.
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
In the course of the case, it turned out that the judge hearing the case used the free legal assistance services of the attorney’s office representing one of the parties.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 13,7 % (25) | 77,5 % (141) | 8,8% (16) |
These results may underpin the statement that the legal tradition plays an important role in the public’s perception of the whole system and impartiality itself. From the survey conducted by A. Higgins and I. Levy it appears that it does not play the role of significance impugned by the court in Locabail (UK) Ltd v Bayfield Properties Ltd, but certainly it impacts the results. Only 13,7 % of respondents in Poland would allow the judge to hear the case, while in UK it would be 27% and in Australia 23%. Noteworthy, about 20% of UK and Australia respondents ticked “I don’t know” answer,[43] while for polish respondents, the answer was more straightforward, and only 8,8% chose that option.
Common perspectives
Not all the orders are contrary to the public perspective. It appears the courts have a common approach with the public on the issue of whether one judge can hear the claims in parallel proceedings, even if the arguments raised by the parties are the same. The respondents were asked the following questions:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
A judge was assigned to hear the case of Jan Kowalski. This is the second case of Jan Kowalski, which will be examined by the same judge. Cases are not related to each other.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 74,2 % (135) | 20,3 % (37) | 5,5 % (10) |
A judge was assigned to hear the case of Jan Kowalski. Earlier, the same judge heard a case involving the daughter of Jan Kowalski. The judge ruled against her. In the present case, Jan Kowalski relies on the same line of argument as his daughter in the previous case.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 51,6 % (94) | 34,1 % (62) | 14,3 % (26) |
Both questions were based on real-case scenarios, but the first was put primarily to determine whether it makes a difference for the public if the same line of arguments is used in different cases. The results show it does make a difference since, in the second question, only 51.6% of respondents would allow the judge to hear the case compared to 74,2% in the first one. Nonetheless, the majority agrees with the court that the judge should be allowed to sit in the chair in each case. Noteworthy, the results of the second question are almost identical with the results obtained within Australian citizens by A. Higgins and I. Levy on the question based on BATAS v Laurie case.[44]
The other example is inspiring because the question concerned the problem of mutual relationships between the courts and prosecutors – two different legal professions that may be perceived as related but supposed to be separated according to polish tradition. Simplifying the case, the court dismissed the application for disqualification of all judges based on allegations that they cannot bring an impartial mind in assessing testimonies of witnesses who are prosecutors performing their duties daily in the court that was competent to hear the case. The Supreme Court dismissed the application by referring to the concept of an outside observer who is aware of the principal rules of the criminal proceeding. The author expected the public to favour the disqualification, but he was wrong. The results are as follows:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
In the course of the case it turned out that the judge will have to assess the credibility of the testimony given by prosecutors who, as part of their professional duties, often appear before this court in civil and criminal cases.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 58,8 % (107) | 30,8 % (56) | 10,4 % (19) |
It is even more remarkable if we look at the next question, which appears to be less controversial, but turned out to be the opposite.
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
In the course of the case, it turned out that a participant in the proceedings is a person who was employed as an assistant to a judge in the same court as the judge who is to hear the case. The participant was employed in a different department of the court, but this department was in the same building as the department in which the judge was working at the time. According to the statement of the judge hearing the case, he knows the participant in the proceedings “only by sight”.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 48,9 % (89) | 41,8 % (76) | 9,3 % (17) |
It is difficult to explain why the second question was more controversial, and more respondents favoured disqualification of the judge compared to the first question. In the second scenario, the judge had no contact with the litigant, while in the first scenario, judges had to deal with prosecutors and were involved in many mutual interactions. They had a chance to like or dislike some prosecutors, whereas it was not the case in the second scenario. The author believes that this may come because the public is convinced the rules on the separateness of two legal professions are followed, while no such rules exist in personal matters.
Miscellaneous
The last question is also worth discussing. It reflects the question raised by A. Higgins and I. Levy as to the challenging of abortion laws and the problem of whether a catholic judge should be disqualified from hearing the case. This problem is interesting for this paper because there are about 93,7% of Catholics in Poland, according to the last data.[45] However, the question raised by the scholars appeared to be too abstract from the perspective of the polish legal system, it was changed in more familiar way. The respondents were asked:
In the following instances, do you think a judge should be allowed to hear the case or be disqualified from hearing the case?:
In the course of the case concerning the criminal liability of a woman for illegal termination of pregnancy (abortion), it turned out that the judge who is to hear the case is a practising Catholic.
| Allowed to hear the case | Disqualified from hearing the case | Don’t know |
| 45,1 % (82) | 44,0 % (80) | 11 % (20) |
At present, no such law exists in Poland, at least concerning straight the criminal liability of a woman for illegal termination of pregnancy (abortion), compared to the liability of the medical personnel who make the abortion. Considering the last approach for the abortion laws, particularly the last ruling of the Constitutional Tribunal, which ruled that abortions carried out due to irreversible congenital disabilities, including Down syndrome and fetal defects, were illegal under the Constitution, we may expect the criminal law to change. Thus, the author put the question in this way to catch the public perspective on this highly controversial issue (and make it even more controversial) and determine whether the results correspond with UK and Australian respondents. Surprisingly, the results are different, and it makes it interesting why is that. The majority in the survey of A. Higgins and I. Levy favoured disqualification,[46] while in this survey, we observe evenness. The scholars did a thesis that favouring disqualification may come because the religious teachings of the Catholic Church include a clear position on the morality of abortion.[47] If that is the case, why are the results different in one of the most catholic countries in the world? The author is far from putting a straight answer, but one possible solution is in-group bias, i.e. the phenomenon where people tend to evaluate actions of the in-group relative to the out-group positively.[48] It could mean that the Polish respondents, a great majority of whom were Catholics, evaluated the judge more positively than UK and Australian respondents, who were more divided in terms of religion. However, it does not mean that the scholars’ thesis is wrong – it only means that there might be other factors influencing the results than the religious teachings.
IV. Conclusion
The possibility to disqualify a judge from hearing the case on reasonable doubts to impartiality constitutes one of the principal guarantees that the public maintains or even gains confidence in the judicial dispute resolution system in Poland. The litigants and general public have to believe that claims brought before the courts of law will be decided by a judge, who brings an impartial mind to hear the case. In every case where a judge is not recused despite reasonable doubts exists, these doubts spread by word of mouth and infect the whole system. One may observe that bigger issues currently impact the judicial legitimacy in Poland, which is very true. The judiciary, however, should not discard the development of the tools that it controls and works only for its benefit. Thus, it should start to think over the concept of the outside observer and reconsider whether this test is used properly. The author is far from drawing unequivocal conclusions on this matter. The survey was designed to get only the idea if there might be a discrepancy between what judges and the public (bystanders) think about controversial cases resolved in Poland. The results show that such discrepancy might exist, and further research is necessary. Unlike A. Higgins, and I. Levy, the author cannot even conclude at this stage that the outside observer is not the majority member or even plurality. However, he may say that there are reasonable doubts if it is. In this survey’s most significant questions, the stark contrast between the courts’ and the public perspective was observed. If that is the case, how does it impact on the courts’ legitimacy? Is the majority enough to conclude the doubts are reasonable? I believe it is. If we agreed on the system where the majority elect people who rule the country, regardless of the minority opinions, then we should agree a judge should be disqualified from hearing the case if the majority thinks so. We will not achieve public confidence if we think in the other way. The thing is to work over the public and educate people about the judiciary system to prevent them from being suspicious about all the matters in the courtroom. The other thing is to find out how to assess the public perspective daily. All in all, there is much work to do.
Author: Tomasz Sowa, LL.M.
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[1] Judical Impartiality Consultation Paper (The Australian Law Reform Commission, April 2021) 8 <https://www.alrc.gov.au/publication/judicial-impartiality-cp1/>.
[2] R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256.
[3] Constitution of Republic of Poland (Poland) 1997 45 (2).
[4] European Convention on Human Rights, as Amended by Protocols Nos. 11, 14 and 15 Supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16.
[5] Włodzimierz Kosior, ‘Iudex Suspectus – Wyłączenie Sędziego Na Wniosek w Postępowaniu Cywilnym [Iudex Suspectus – Exclusion of a Judge upon a Motion in Civil Proceedings]’ 2013/2 KKSSiP 74.
[6] Code of Civil Procedure (Poland) 1964.
[7] Tadeusz Żyznowski, Kodeks postępowania cywilnego. Komentarz. Redakcja T. Wiśniewski [Code of Civil Procedure. Commentary. Edited by T. Wiśniewski], vol I (Wolters Kuwer, 2021) Article 48.
[8] T. Żyznowski [w:] Kodeks Postępowania Cywilnego. Komentarz. Tom I. Artykuły 1–366, Red. T. Wiśniewski, Warszawa 2021, Art. 48. Article 49.
[9] Maciej Gudowski and Maria Jędrzejewska, Kodeks postępowania cywilnego. Komentarz. Redakcja T. Ereciński [Code of Civil Procedure. Commentary. Edited by T. Ereciński], vol I (Wolters Kuwer, V, 2016) Article 49.
[10] Order of the Supreme Court of Poland [2012] The Supreme Court of Poland III KK 214/11.
[11] Order of the Appellate Court in Krakow [2013] The Appelate Court in Krakow I ACo 44/12; Order of the Appellate Court in Krakow [2015] The Appellate Court in Krakow ASD 9/15; Jacek Kosonoga, Kodeks Postępowania Karnego. Tom I. Komentarz Do Art. 1-166. Redakcja: R. A. Stefański, S. Zabłocki [Code of Criminal Procedure. Volume I. Commentary to Articles 1-166. Edited by R. A. Stefański, S. Zabłocki], vol I (Wolters Kuwer, 2017) Article 41.
[12] To some extent the courts, especially ruling within the criminal procedure, developed on the margin traits of this model, by adding that the observer should not only stand on the “outside”, but suppose to be oriented in the basics of the criminal law.
[13] The Judgement of the Constitutional Tribunal [2005] The Consitutional Tribunal of Poland SK 53/04.
[14] The Resolution of the Supreme Court of Poland [2007] The Supreme Court od Poland I KZP 9/07.
[15] Order of the Supreme Court of Poland [2013] The Supreme Court of Poland V KO 33/13.
[16] See also: Order of the Supreme Court of Poland [2019] The Supreme Court of Poland III KO 23/19.
[17] This thesis is based on analysis of over 200 rulings, where analysis was made from the perspective of the OO, selected from the total of 800.
[18] Peter Nygh, LexisNexis Australia, The Encyclopaedic Australian Legal Dictionary (online at 10 January 2022) ‘bias’.
[19] Ebner v Official Trustee in Bankruptcy; Clenae PTY LTD v Australia and New Zealand Banking Group [2000] HCA 63; BC200007446 6.
[20] Simon Atrill, ‘Who Is the “Fair-Minded and Informed Observer”? Bias after Magill’ (2003) 62(2) The Cambridge Law Journal 279, 279 (‘Who Is the “Fair-Minded and Informed Observer”?’).
[21] Gaudie v Local Court (NSW) [2013] NSWC 1425; BC201313230 [2013] The Supreme Court of New South Wales 2013/154115.
[22] Order of the Supreme Court of Poland [2019] The Supreme Court of Poland II CO 208/19.
[23] Andrew Higgins and Inbar Levy, ‘What the Fair Minded Observer Really Thinks About Judicial Impartiality’ (2021) 84(4) The Modern Law Review 811, 814–817.
[24] Atrill (n 20) 280–281.
[25] Gaudie v Local Court (NSW) [2013] NSWC 1425; BC201313230 (n 21) 78.
[26] Higgins and Levy (n 23) 812.
[27] Atrill (n 20) 281.
[28] Ibid 280.
[29] EU Justice Scoreboard (The European Commission, 2020) 41.
[30] Ibid.
[31] Higgins and Levy (n 23) 813.
[32] Ibid 828.
[33] Ibid 841.
[34] Bogna Kociołowicz-Wiśniewska and Bartosz Pilitowski, Ocena polskiego sądownictwa w świetle badań vol. 2. Bilans efektów reform wymiaru sprawiedliwości w latach 2017-2019 [The assessment of the Polish judiciary in the light of research vol. 2. Summary of the effects of justice reforms in 2017-2019] (Court Watch Polska, 2019) <https://courtwatch.pl/wp-content/uploads/2014/04/ocena_polskiego_sadownictwa_w_swietle_badan_vol_2.pdf>.
[35] Expert witnesses in Poland are disqualified on the same grounds as judges, so jurisprudence relating to them may be useful in the analysis, if the outside observator is concerned.
[36] Martial law was declared in the period between 13 December 1981 and 22 July 1983. The government of the Polish People’s Republic introduced the martial law in an attempt to fight down political opposition, in particular the Solidarity movement. During the martial law period, common and military courts operated on the basis of extraordinary legislation. For example, there was a penalty of up to five years for organizing and leading a strike. For actions harmful to the security or defense of the People’s Republic of Poland, there was a penalty of three years’ imprisonment. (See more: https://plus.dziennikpolski24.pl/sedziowie-w-stanie-wojennym/ar/c15-15336640)
[37] Higgins and Levy (n 23) 831–832.
[38] ‘Frankowicze — o Co Chodzi z Wyrokiem w Sprawie Kredytów? [Swiss Francs Debtors – What Is the Court’s Judgement on the Credits About?]’ (22 April 2021) Business Insider <https://businessinsider.com.pl/poradnik-finansowy/kredyty-frankowe-o-co-chodzi/ll3cs5j>; ‘Sytuacja Frankowiczów w 2021: Kredytobiorcy Kalkulują i Masowo Pozywają Banki [Situation of Swiss Franc Debtors in 2021: The Borrowers Calculate and Massively Sue Banks]’ Money.pl <https://www.money.pl/gospodarka/sytuacja-frankowiczow-w-2021-kredytobiorcy-kalkuluja-i-masowo-pozywaja-banki-6713899603401408a.html>.
[39] Judical Impartiality Consultation Paper (n 1) Cognitive and Social Biases in Judicial Decision-Making [16].
[40] which are the sources of the law of lower rank than statutes, ensuring the right to disqualification of the judge from hearing the case.
[41] Judical Impartiality Consultation Paper (n 1) Cognitive and Social Biases in Judicial Decision-Making [16].
[42] Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65.
[43] Higgins and Levy (n 23) 828–829.
[44] Ibid 831.
[45] GUS, ‘Wyznania religijne w Polsce 2019–2021 [Religion beliefs in Poland 2019-2021]’, stat.gov.pl 84 <https://stat.gov.pl/obszary-tematyczne/inne-opracowania/wyznania-religijne/wyznania-religijne-w-polsce-20192021,5,3.html>.
[46] Higgins and Levy (n 23) 839.
[47] Ibid 827.
[48] Inbar Levy and Andrew Higgins, ‘Judicial Policy, Public Perception, and the Science of Decision Making: A New Framework for the Law of Apprehended Bias.’ [2019] (38) Civil Justice Quarterly 376, 390.
