Jeff Smith, representing JANZ, recently attended a Zoom webinar on the situation in Poland as viewed a year after The March Of 1,000 Robes. JANZ wrote about this in August 2020. You can find the article here.
This march was an event where Polish judges, joined by others from EU countries, marched from the Warsaw Courts of Justice to parliament to demonstrate the unity of the judiciary about judicial independence. Behind this was the popularist Law and Justice party amendment to the constitution, removing judicial immunity. This so-called ‘muzzle law’ has seen disciplinary proceedings taken against judges with some imprisoned. One of those prosecuted secretly recorded a message for the webinar several others spoke. You can find Jeff’s full report and recommendations here.
Last week a Dutch court rejected a Polish extradition request on the basis that the alleged drug smuggler would not get a fair trial because judicial independence has been so undermined by the government there. The European arrest warrant process was adopted in 2001, so this was a significant decision as it is the first time there has been a refusal to extradite someone between two EU member states.
The Polish suspect, named only as Maciej L, aged 33, assumed notoriety in his native country when the Amsterdam court first questioned Polish judicial independence during a hearing of his case last autumn. A statement from the Dutch court noted fears that Polish courts would have to convict L because of new government powers to discipline judges.
“There is a danger that the judges in Poland, who have to rule on the criminal case of the accused person, will not be able to do so freely, partly because of the risk of disciplinary proceedings,” the court said. “This is evidenced by, among other things, a memo from the prosecutor-general to all Polish prosecutors, which discusses this particular case. There is a danger that the systemic deficiencies will actually affect the proceedings of the accused person.”
If these events seem remote from us, then some of you may have heard from Sally Cahill QC, who is with the Crown Court in England, when she visited New Zealand. She told of the dire situation of the judiciary in England. Their terms and conditions of service are so poor and subject to change without consultation that the courts struggle to recruit the talented barristers most suited to judicial life. This has been compounded because of COVID, their backlog of cases has now expanded significantly, and will take several years to be cleared. Our Australian cousins are also confronted by challenges to their court structure. And in Fiji, the unparliamentary establishment of a specialist court to hear criminal fraud cases by handpicked judges appointed by the government is concerning.
The Bangalore Principles of Judicial Conduct identify six core values of the judiciary: independence, impartiality, integrity, propriety, equality, competence, and diligence. These states of mind are values intended to establish standards of ethical conduct for judges. They are designed to provide guidance to judges in the performance of their judicial duties and to reassure public confidence in the decision’s judges must make.
The protection of the administration of justice from political influence or interference cannot be achieved by the judiciary promoting these values alone. It is the responsibility of the state to establish the institutional arrangements that would secure the actual and perceived independence of the judiciary from the other two branches of government.
It is healthy to talk about these things. And so Jeff’s recommendation that we do so will be carried forward by JANZ at our Taupo gathering this September as a topic of conversation.
Based on a quote from Edward Couture, when describing the removal of judicial powers and unceasing disciplinary procedures as a “treacherous culture of fear”, a Polish judge remarked, “When judges are afraid, no citizen can sleep peacefully.” So, as you struggle to cope with another alert level 3 or level 2 in your court, or feel that ghastly tremble from last night's earthquake, do spare a thought for our Polish brothers and sisters.
Be safe, keep well, kia kaha.
Gerard Winter
JANZ President