Niezależność sądu oraz niezawisłość sędziowska w sprawach karnych w okresie rządów autorytarnych i totalitarnych w Polsce

At present, there is no doubt that a need exists to ensure the citizens’ right to have a criminal case examined by an independent and unbiased court. For the proper functioning of the court-based administration of justice to be possible, the courts must have the attribute of independence and the judges must be autonomous. These issues are regulated in international treaties to which Poland is a party. The aim of this study is to describe the role of judiciary independence and judicial autonomy in criminal cases. In order to achieve these goals, considerations will be presented on the essence of such independence and autonomy, and a reference will be made to the way the authoritarian state functioned after the May coup in the Second Polish Republic, and the totalitarian state during the era of the Polish People’s Republic.

Foreign aid and judicial autonomy

Foreign aid donors increasingly embrace judicial autonomy as an important component of advancing democracy and promoting investment abroad. Recipient governments also recognize the importance of judicial reform for improving the investment climate at home. However, developing countries often lack the necessary state capacity that would enable them to implement these reforms. We argue that recipient countries that lack the state capacity to undertake reforms on their own turn to donors, who readily assist in judicial reforms via targeted democracy and governance interventions. At the same time, we suggest that the external assistance matters less for recipients that are able to implement judicial reforms by themselves. We employ an instrumental variable model to test this argument in a global sample of aid-eligible countries.

“Detaching” Courts from Local Politics? Assessing the Judicial Centralization Reforms in China

The local party-state has always been a major source of extrajudicial influence in China. Drawing on interviews with judges, this article examines the impact of Xi Jinping's ambitious judicial centralization reforms, which are aimed at enhancing judicial autonomy by transferring authority over local court personnel and finances from local to provincial level. It finds that the reforms have achieved limited results. Although many appointment and budgetary powers were formally transferred to the provincial level, the local party-state retains considerable influence in both areas owing to its superior manpower, local knowledge and, in the case of developed regions, financial resources. Moreover, the local party-state maintains significant informal influence over the courts, which require many forms of discretionary assistance from various state organs – ranging from appropriating land for new courthouses to providing police protection for remote tribunals – in order to function. This setback highlights the depth and complexity of the courts’ political and economic embeddedness and serves as a reminder of the inherent difficulty of institutionalizing judicial autonomy, however limited, in a large and diverse party-state.

Judicial Autonomy: Medieval Realities and Modern Discourse

The chapter examines the notion that personal rather than territorial law prevailed in medieval Islam and discusses the tension between communal autonomy and governmental interference. The meaning and the limits of the so-called ‘dhimmi judicial autonomy’ are also discussed.

On judicial autonomy and the autonomy of the parties in international adjudication, with special regard to investment arbitration and ICSID annulment proceedings

The article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

Power Sharing and the Rule of Law in the Aftermath of Civil War

What effect do power-sharing institutions agreed to as part of civil war settlements have on the development of the rule of law in post–civil war states? We contend that power-sharing measures facilitate the emergence of the rule of law in two ways. First, they establish a form of institutional constraint that promotes judicial autonomy and independence. Second, they foster a sense of security among judges and other political actors that bolsters commitment to the law. We demonstrate the plausibility of a positive relationship between power sharing and the rule of law through an analysis of post–civil war states between the years 1948 and 2006. Our findings suggest that civil war settlements can help to establish the rule of law when they include mechanisms aimed at allaying the insecurities of political actors in the postconflict environment.