REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: dutch Functions: investigating judge Length of service: 7 years Identification of the exchange Hosting jurisdiction/institution: Poland City: Poznan Country: Poland Dates of the exchange: 1 march until 12 march Type of exchange: one to one exchange x group exchange general exchange specialized exchange (please specify : ) Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the. In Driehuis On 27 e march Signature O.P.G.V / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 REPORT The purpose of my report is to share with every reader of this report some of the topics that surprised me in a positive sense during my visit to Poland. Tuesday March 2e we had an interesting introduction of two colleague judges on the principles of polish criminal and civil substantive and procedural law. Criminal Law 1.There are three levels of criminal behavior, the first behavior translated as torts : small criminal act punished with 1 month jail, a fine,a reprimand or restrictions of liberties such as community work. The second behavior described as felony that could be punished up to 3 years imprisonment. The third behavior concerns misdemeanors that consist of the more heavier cases. 2.A sentence of two years can be suspended with a probation time of 2 to 5 years. 3.The district court handles smaller cases. There a professional judge resides. The regional court is an appeal court for the district court. At that court the chambers consist of 1 professional judge an 2 lay judges. They are responsible for the social justice. That means that the lay judges have the majority when voting in chambers. The regional court is also the first instance for several misdemeanors. 4.The public prosecutor hardly attends trial at the district court. The cases are handled and prepared by the police under the supervision of the public prosecutor. The police writes the indictment for the court. The public prosecutor only attends court when negotiations take place about the sentence. 5.There are two fast track procedures : Art 335 and art 378 from the criminal code. The art 335 procedure is for the smaller cases such as drunken drivers, fraud, not paying alimony and fighting. Those cases are finished without a trial. It s a kind of plea bargain procedure for smaller cases. 6.The art 387 procedure is used in case the accused and the prosecutor didn t succeed to make a deal. The judge will ask the defendant whether he pleads guilty. Then the negotiations take place before the judge. The accused could propose a sentence for his behavior. The judge also participates in the negotiations. The maximum negotiable sentence is 10 years. Most of the accused are not presented by a lawyer/ advocate. Poland is familiar with the possibility to add lawyers paid by the state. Most of the cases come to an agreement. The accuses are willing to accept sentences up to 2 years imprisonment while they are often suspended and not executed. Also the execution of fines is not working because collection of the money doesn t take place. 7.In this system not many cases remain to be handled completely by the judge. However in those cases the judge is not accustomed to give a full explanation on all the arguments of the defendant. The full explanation is only added in case of an appeal. In most common cases the accused doesn t ask for or bothers to get an extensive explanation. The judge doesn t feel obliged to offer an explanation ex officio. Civil law 8. After the rotation of the system in 1989 the question was raised whether the Polish society could go along with the civil code that was in use during the communist period. There was decided that the civil code was enough based on the principles of the law before the second world war. The old code survived and was stripped of the ideological content. Also the adversarial principle was introduced that changed the role of the judge in court. Nevertheless right now a committee is drafting a new civil code. Among jurists the discussion is going on whether a new code is necessary. The matter of consumers rights is very much influenced by the EU rules. 8. Before 1989 almost all properties where state owned. Due to that reason renting an apartment was a matter of an administrative decision, who could use the apartment under which conditions. After the rotation much stayed the same. Still most old apartments are owned by cooperative associations who are deciding who could use the apartments. New apartments are coming more and more private owned. 9. The soil is right now in a lot of cases owned by the municipality instead of the state. To avoid ownership in case of an investment the municipality is willing to give the investor in a building the right of the use of fruits of the soil.

3 10. A new development in civil procedural law is the right to apply a claim by internet. A payment order will be send to the debtor. He has the right to protest within two weeks. It becomes then a normal civil procedure. Those cases are mainly dealt by referendary judges who handle some small cases. The courts are trying to find means to accelerate the procedures. In case a judges doubts whether a law is according to the constitution he could ask for an advise of the constitutional court. Important websites: March 3e visit to polish judges association Before 1989 any association between judges was impossible. Judges could be and in fact were members of the communist party. Right now judges are not allowed to be member of a political party. They could not engage in political activities. Before 1989 telephone justice was normal. In cases against a party member or cases with political relevance the party or the ministry could phone the judges and could order him to decide according to the wishes of the party. After the rotation all judges went smoothly over in the new order. Hardly any judges resigned from his office. Only against 20 judges disciplinary actions were taken. Right now the president of the court could not be a party member anymore. A extra ordinary appeal to the president of the state and other officials is not existing anymore. The judges association was founded with the help of the German judges association. The mean goal is the confirmation of the independence of the judiciary. There are in total judges in Poland; 7000 are working in the court of the first instance. They are very overloaded with work. In 2008 judged decided to be a few days each week not in court as a protest against the workload. They are not allowed to strike. There are 5000 public prosecutors. The association of judges is splitting up in more associations. March 4e Supreme Court The supreme court is seated in a beautiful new building in the old part of town. The manager of the court staff has presented the building with great pride. He has mentioned several times the hotel and garden at the top of the building for judges from outside Warsaw. We witnessed a proceeding and later on the president of the court presented the case before the group. It was a case where the question was raised whether a traffic incident was a matter of self defense while the driver was chased in the streets of Warsaw. The supreme court is a cassation court and only considers the applicable law. The court is handling several kinds of procedures from which a would mention the following specials : 1.The court considers complaints about the length of the procedures. As explained in criminal cases the first and second instances have to be dealt with in 2 years. 2.The lower instances have the right to ask for a prejudicial explanation of the law. In case of a question the resolution takes 2 to 5 months while a cassation procedure takes 1 ½ year. 3. When several chambers of the supreme court seems to differ on certain questions, then the ombudsman or the attorney general has the right to ask for a explanatory decision to achieve unity. 4. The supreme court has 4 chambers : a civil, criminal, social security and public and a military chamber. 5.Beginning from 1949 the question of the guidelines for the administration of justice and court practice issued by the supreme court was particularly controversial. In practice the essence of the guidelines was prepared by political agencies outside the Supreme court. The supreme court was left with the task of writing them properly and supplementing them with their justification. In criminal cases the guidelines often aimed at more severe penal reprisal and imposed on the judge the evaluation of the criminal act with led to a automatic administration of justice. Most often the judges applied the guidelines very strictly, often opportunistically. From 1981, in the period of solidarity, the liquidation of the binding character of the guideline started. The act on the supreme court 1984 stipulated that the supreme court protects the political and social system, the social property and the citizens right. Thus the political aspect rather than the rule of law was emphasized. The justices could be dismissed when they did not guarantee due performance of duties. So justices who were politically incorrect could be dismissed. In 1984 among 113 appointed supreme court justices 88 were members of the communist party. Only 14 did not belong to any political party. In 1989 in the constitution the irrevocability of the supreme court justices was established and the institution of the guidelines was liquidated. The Supreme court decided in full bench that all previous guidelines seized to be binding.

4 March 5e Constitutional Court After a cordial visit to the parliament, the constitutional court opened her doors for the group. The president of the court and two of his colleagues were very willing to give an introduction and to answer questions. The court consist of 5 judges who are appointed by the parliament. The decisions are with a majority vote. Dissenting opinions are published. The court is able to give 166 decisions each year. Human rights according to the European treaty on human rights are treated as part of the national system. On my question how the relation is working between the constitutional court and the Human Right Court in Strasburg the judges explained a case were both the Constitutional Court and the Human Right court were involved. That was the case were the mayor of Warsaw had banned a gay parade bases on the Public route act. The Constitution Court ruled that this part of the act was against the freedom of assembly that is part of the constitution. The Human Right court also ruled that the decision of the mayor was against art 1 of the Human Right treaty. According to the Court there is a very small risk that the Constitution and the Human Right treaty will cause discrepancies. The Constitutional Court is concerned with the norm, the Human Right Court will handle the actual case and the parties. The recent European arrest warrant caused a serious problem because Poland could not expulse / extradite it s nationals. The Court ruled that the arrest warrant was against the Polish Constitution and give the parliament a period of 1 ½ year to change the Constitution. That has happened. There exist now a small possibility to expulse Polish nationals to other EU member states. The first and the second instances of the courts have the right to ask a decision whether a law is according to the Constitution. The Court could take preliminary decisions by example the decision that in the meantime taxes based on a law that is in study don t have to be paid. The Court only very occasionally uses that opportunity while she don t want to behave as 4e instance. The Court is sometimes in the middle of the political discussion. The Court has ruled that the prime minister instead of the president has the right to attend meetings of the European Council. Recently also a case about a deduction of the pensions of former secret service men was dealt with. Monday march 8e : District Court of Poznan Today I ve been warmly welcomed by my tutor A.K. She introduced me with her team chef, the president and vice president of the court. We discussed his concerns about the financial funding of the court. The president is mainly working as manager of the court. The court is situated in a industrial area of town in a nicely renovated office. 70 judges and several hundred assistants are working in the building. Tutor A is working in the field of social security and mainly in the field sickness allowances. Summarized the first month of sickness is for the risk of the employer. After that period the state of Poland takes over the sickness benefits. The judges are taking a active role in the procedure due to the fact that the defendants are mainly very poor and not represented by a lawyer. The judge appoints the experts. The team chef of Anna explained to me the most of the judges are working the whole of their live in the same judicial field. The President explained that changes every 4 or 5 years would be a good idea. The team chef is convinced that he is independent as judge. Most of the judges of the old regime are retired. Tuesday march 9e Today the criminal section if the court of Poznan was on the agenda. I attended several cases of which a traffic case and a robbery where the defendants pleaded guilty and proposed a sentence themselves. In the Polish law system a kind of plea-bargain is accepted. For small cases the defendant and the public prosecutor could agree on a sentence.those cases are presented to court without a trial. The judges considers whether the file contains enough evidence and whether the proposed sentence is proportional. In bigger cases the negotiating for the sentence could take place during the trial. The judge could participate in the negotiations. When a deal is not conceived the trail will take place in the normal sense. During the trial the clerk types the report. The judges follows on his screen whether the report is correct. The judges deals most cases on his one. He / she has the right to sentence up to 15 years on his one. During the investigating part of the trial is the prosecutor not present. The indictment is read by a clerk. Most of the defendants are not represented by a lawyer. The judge has the right to ad a lawyer to the defendant paid by the state. In most cases however the defendants refuse to make use of such a lawyer. That could be a matter of culture. Much of the sentences below 2 years a suspended the first time. Wednesday march 10e

5 This morning I attended 2 administrative cases. The first one concerned a man who claimed to be mentally ill. His psychiatrist was in court to witness about the situation of his client. He explained that according to his know how his client was not able to go to his work. The court decided to ask for a second opinion of the court specialist. When he will consider the man ill,he will receive his benefits. Another case concerned a car accident. The chauffeur was denied compensation because he was supposed to have past the speed limits. The court decided to ask for police specialists to count a estimation about the speed of the car. I was present at two civil cases. In one case the lawyer asked the judge to accept a invoice as proof of a claim. The judges postponed the cession to write her decision. Another case concerned a mistake that was made in a matrimony document. The dates of birth were wrongly added. The birth certificates were already filed but still a lot of witnesses had to be heard. The case was postponed while two relevant witnesses were not present. In all cases parties were not represented by a lawyer. According to most judges many people don t think that a lawyer is necessary and makes any difference. I noticed that the judge is obliged to make all procedural movements openly in court. The civil judge explained that she has experience in the family chamber and has appreciated the help of lay judges in family cases based on their live experiences. In fact a lot of things happen in the court room. To keep the order the judge has the right to hold everybody present in contempt of court. the judges court execute right away a fine of 5000 zloty an one week in prison. The civil department of the district court could decide on financial claims up to zloty, that counts : +/ euro s. Thursday march 11e Today I started at the execution department of the court. This department could give an enforceable title to a claim of a bank against a debtor. When the claim fulfils the administrative rules the title will be allowed. The debtor has to right a letter of protest when he does not agree with the claim of the bank. This possibility is made to strengthen the financial position of the Polish banks and the financial system. The enforcement department also organizes public auctions in court. I was present at a public auction. However it was postponed because there were no buyers. This department also controls the work of the bailiffs, who are working as private businesses. A protest against a seizure has to be dealt with be this department. After this conversation I went to the department of family law of the court. They explained me that they are dialing with civil matters for child support. There is a strong tendency not to use penal law but civil law when a child under 16 years of age commits a crime. The court could appoint social workers who have to report the judge. Divorce cases are a matter of a higher court, with also lay judges. The day ended in the civil section of the court. There I got an explanation about the many cases of property rights that appear before the court. In the communist period the state excepted no private property. The use of real estate was a matter of administrative decision. The constitutional court has ruled that many of those decisions where against the constitution. The real estate register was not well maintained during the communist period while it was not relevant who was registered. Right now people are claiming the state based on the old registration. In a lot of cases it s totally unclear who owns the property because the heritage was not dived during the communist time. The civil department has the competence to handle financial cases up to zloty, that is +/ euro. The civil department handles also assurance cases. Mediation is not much in use. The assistance of a lawyer in not obligatory. Friday march 12e The morning started with a visit to the prosecutor s office. It s a very nice modern building with all kind of facilities. The prosecutors explained me that there task is to supervise the work of the police. In case of special investigation methods the police has to write a report to the prosecutor with a request for the use of a special method like undercover work. The prosecutor has to ask the court for permission. In the district of Poznan in 2009 telephone interception was used 300 times. The prosecutor works according to the legality system. I ve explained that in the Netherlands the opportunity system in use, that means that the prosecutor could decide which cases will be prosecuted. The prosecutors explained that they only considered the legality principle fair to the society. In 50 % of the cases a agreement is reached on the sentence between the lawyer/ accused and the prosecutor. The agreements are presented to the court. The judge and the victim have to agree. The victim has the right to compensation and even to appeal when he does not agree with the outcome.in case of an agreement it s not necessary that the defendant pleads guilty. There are no general working standards on the sentences used in the negotiations, because no case is the same. Most of the cases are handled by one judge. On in very severe cases there are 3 judges from

6 which 2 judges are lay judges. There are probation officers who are working for the court. They could write a report about the live circumstances of the accused. There are also experts on psychology available. The morning continued with a discussion with the vice president of the appeal court. He explained that he is responsible for the personnel of the courts in Poznan. Each year a training is organized. Three times each year there is a meeting with all judges in the district. They decide about the appointment of new judges and the confirmation of the year report. In those meeting also the proposed number of cases a judges has to deal with are discussed. The president of the court has a special council of 10 judges who advise him on the management of the court. This council advises also about the appointment of the president. The final decision is made by the president of the state after an advise of the national council for the judiciary. The vice president also handles complaints by people who came in contact with judges. Each 4 year a judge is supervised by an older judge mostly from another district. He controls whether the judges is working according to the working plan, how the secretarial assistance has worked, whether there were long delays without reason.the report is discussed white the judge.it could influence his career. This day ended with a discussion with a judges who handles bigger criminal cases like organized crime, fraud and rape. The cases are divided in principle by the order of the alphabet. Most cases are prepared by 1 judge. He informs the lay judges. All the evidence has to be presented in court. Only when the lawyer and the prosecutor agree with less witnesses to heard, that could be followed. The lawyer and the prosecutor could add new witnesses. In most of the cases the lay judges don t ask for a higher sentences. Also in heavier cases negotiations could take place. The prosecutor could propose a sentence in the indictment or later during the trial. The accused has to plead guilty. The judges considers whether it is doubtless the act is committed and whether the sentence is proportional. Hospitality Organization Both A.K and A.K - my tutor in Poznan - were excellent hosts and very helpful. A organized a full and very interesting program in Poznan. It was very inspiring for my work as a judge in the Netherlands. A lot of colleagues were willing to explain about their work. I m writing an article about my experiences for my Dutch colleagues. The Polish judiciary has achieved a lot since the communist period. It s all very impressive. I ve found a book in English in Poland about the impact of European integration on the Law and Constitutional system in Poland. The active role of the constitution in the system is very well developed.