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UNDERESTIMATED REFORMS

Published on October 25, 2012 by: in: Politics

´Amber Gold Affair´ has caused serious interest among pulic opinion in administration of justice, as well as in public prosecutor’s office. In the press and on various forums, discussions are conducted on the necessary reforms. Typically, in such cases, constitutional matters are discussed and constitutional concepts are invoked. We usually want to treat the disease with serious antibiotics. Meanwhile, the administration of justice and the prosecutor’s office not only does need antibiotics, (which by the way can lead to stomach evisceration or other diseases) but also vitamins, syrups and mineral salts. These smaller and sometimes imperceptible to the average observer reforms, may result in that the body will function better. Unfortunatelly, successive justice ministers – led by the temptation of political success – primarily focus on large reforms.  As in politics, sometimes it works and sometimes not. Meanwhile, those smaller reforms are fudged because of the lack of idea, competences, time or political unattractiveness. Paradoxically, if focused on those “small” reforms, they could have probably been a lot more successful than pushing such changes as the next Common Courts Reform or a thorough criminal proceedings’ amendment.

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Expert Witnesses

For years, the subjects of legal jokes are expert witnesses and their expertise.  The culmination was the ridicule of one of the expert witnesses by Grzegorz Wieczerzak in his lawsuit. Low wages of expert witnesses are already ‘legendary’. The mode of their selection is also called into question. To serious economic issues no major consulting firms and no real experts can be employed. In cases involving medical errors, the feedback can be sometimes expected for more than a year. During this time, the trial is often stopped.  There are also cases in which the court cannot manage to find the expert witnesses because they successively refuse to draw up an opinion. In one of the criminal cases concerning error committed by the dental prosthetist, the court tried to find an expert and several of them in turn refused. The criminal case lasted practically forever.

The problem of expert witnesses has been known for years. What is interesting, latest draft law (which by the way is not solving the key issues) was prepared during Zbigniew Ziobro’s term of office. Later, no other minister faced this problem. In this way, one of the most important causes of excessive length of proceedings has still not been eliminated, significantly affecting its integrity.

Assistants, legal secretaries and employees of the courts

One of the important problems of the Polish system of justice is the policy of employment. If we asked representatives of the Ministry of Justice, how many assistants judges, legal secretaries and employees of the courts should be there and what should be their professional profile (in terms of experience, formation and career path), the answer would be difficult to obtain. These professions are influenced by various legislative changes, and have never been the subject of interest as an issue in itself. And yet, this would be the start. Is the assistant judge just a phase in the career of a lawyer or the target job? Can the assistant judge accomplish advocate or legal advisor counsel legal training? Should there be one status of assistants to courts of law, administrative, the Constitutional Court and the Supreme Court? Is the legal secretary just a step on the way to the judge office or is it the profession itself, which can bring long-term job satisfaction? Finally, does court staff consist of people whose experience can influence court functioning, or maybe they are just poorly paid employees who can be easily replaced by people sent from employment office or employment agency? For long years there have been no answers to these questions. The effect which it has on the functioning of the courts can be visible.

Lifelong learning of judges and prosecutors

It is common to complain about the lack of substantial basis of judges and prosecutors to conduct the complicated affairs, especially in the field of economic relations. The faculties of law, which provided its students with lectures of economics, were rare.  On the judicial and public prosecutor’s practices, economics, accounting, knowledge about the company and management were not the subjects of special interest. This, unfortunately, can be seen in practice. Public prosecutor’s office is reluctant to such complex issues as those related to financial market participants. On the other hand, when such a case is in court, it may hit the judge, who will familiarize himself with the ins and outs of the economy just on her example. And – whether he wants – to take up rapid course of stock exchange functioning and learn what transfer pricing in holding means. The situation is worse if he doesn’t want to catch up with this knowledge before adjudicate, or simply doesn’t see his lack of education.

This kind of situation should give the Minister of Justice and the Attorney General a headache. Comprehensive training plan for all judges and public prosecutors should be adopted, so the continuing education will stay in their working calendar for good.  Some of the actions in this area are being taken but they are still insufficient in relation to needs. National School of Judiciary and Public Prosecution doesn’t fully play its role. Moreover, lately her budget has been limited.

The National School of Judiciary and Public Prosecution    

The National School of Judiciary and Public Prosecution is a topic in itself. It is located in Krakow and its purpose is to educate future judges and prosecutors, as well as coordinate their lifelong learning. Since its creation, there have been various allegations concerning its functioning and the role it plays. Mysterious is a selection of lecturers. Intriguing was also the mode of election of the current headmaster and some of the program board participants.

Meanwhile, if someone decided to create such a body, it should be an outpost of change, a place where the future of the judiciary and the prosecution is actually created every day.  No other way to succeed by such a institution has been invented. The budget must be properly thought-out, the training program must be ambitious, lecturers must be selected in a clear and competitive way, foreign exchange with the best judiciary centers in the world must be initiated. To this list we can add the participation in the conceptual work of school of experts, in various fields of science, not just lawyers, in order to create their own educational materials (in quantities of more than one Casebook per year).  The ideas can be multiplied.

The Institute of Justice

The Institute of Justice has a budget of 3 million zl, and should provide decent support for legislative and concept actions of the Ministry of Justice and the Government of the Republic of Poland. From my experience, (which is a consequence of my work in NGO organization engaged in research activities on the judiciary), I know that the 3 million zl can fund many important and really necessary research. Currently, even the Ministry of Justice admits he has a problem with the Institute of Justice as an institution which is not fulfilling its role. It seems, however, that the recent decision to appoint new members to the program board is insufficient. The question is, whether this institution should continue to operate in its shape. Perhaps a better solution would be a distribution of 3 million zl in the form of grants awarded to scientists, on the basis of open competition, and in relation to the conceptual work undertaken by the Ministry of Justice. In this way, departments of so called ‘court studies’ would emerge naturally. Ministerial Grants could also attract foreign scientists, and thus ensure the transfer of the solutions adopted in other countries to the Polish debate.

What’s next?

Ministry of Justice has recently taken the work towards preparing a strategy for the development of the justice system. We could say – finally – and hope that this work will be successful. The success can be identified with preparing an ambitious document, setting out a vision of justice dimension in year 2020 or 2030. Preparing the strategy shouldn’t constitute the end of actions. There should be a political consensus (preferably over divisions) for its implementation. Currently undertaken conceptual work should not obscure the reforms that can be carried out today. The reasons for many of the problems are well diagnosed, and since this level, there is only one step to take the action. The Minister of Justice who will eliminate ‘small courts’ or will implement the assessment of judges will not go down in history, it will be the one who takes care of these – only apparently finer – matters.             

Translation: Olga Malicka

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About Adam Bodnar

The author is the vice-president of the board of the Helsinki Foundation for Human Rights and an assistant professor in the Department of Human Rights, Faculty of Law and Administration. The Helsinki Foundation for Human Rights for many years has conducted research on the state of the Judiciary of Poland and the necessary reforms – including, since 2010, the project: "The Legislative Process Monitoring in the Area of Justice System", funded by the Stefan Batory Foundation.

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