Civil Liability of a Disciplinary Spokesman for Breach of Judicial Independence

The article comprises an analysis of the civil law liability of a disciplinary spokesman for breach of judicial independence. The starting point of the analysis is general possibility of imposing civil liability on the judicial disciplinary spokesman, and that judges’ immunity protects from criminal offences only. The civil liability of the disciplinary spokesman is grounded on the requirement of due performance of the disciplinary spokesman’s function. The boarders between the power of the disciplinary spokesman and the civil liability must be assessed in light of the limbs of a disciplinary offense, which limit the disciplinary spokesman’s right to intervene in certain cases. The civil liability of the disciplinary spokesman is possible not only on the grounds of art. 23 and 24 of the Polish Civil Code, but also on the basis of tortious liability. The availability of these legal mechanisms is directly related to the nature of the disciplinary spokesman’s act, and boils down to the question whether the disciplinary spokesman is justified in a given instance to initiate disciplinary proceedings, i.e. whether the limbs of a disciplinary offence as required by art. 107 § 1 u.s.p. are present. The article discusses two crucial elements of the civil law liability of the disciplinary spokesman: unlawfulness and negligence. Further elements of the liability: loss and causation do not differ from the civil law standards. Therefore, in this respect, the article refers to the general rules.

Disciplinary Responsibility of a Disciplinary Spokesman for Breach of Judicial Independence

The following article comprises an analysis of the basis and scope of disciplinary liability of a disciplinary spokesman for breach of judicial independence. It indicates the inherent interdependence between judicial disciplinary liability and the constitutionally protected principle of independence. The author believes that a separate judicial disciplinary liability constitutes one of the guarantees of independence. The protection of independence is further enhanced by the autonomy of the disciplinary proceedings and the means of determining the basis for such liability, the limits of which are delineated by independence. Nevertheless, it serves to outline the spokesman’s competences and thus the scope of legal acts. Abuse of the aforementioned competences in this regard is equal to an abuse of independence. What is more, the commentary sets out to introduce a two-tier understanding of the notion of abuse of independence, that is internal and external breaches. Under the current law, it is impossible for a spokesman to be in breach of independence, for he does not boast one. However, a spokesman can undertake to externally abuse another party’s - i.a. a judge’s - independence. Such abuse can be caused by non-adherence to the established limits of judicial disciplinary liability. Under such circumstances, a spokesman is in breach of his competences, which is subsequently reflected in a material violation of judicial independence. The bases of disciplinary liability of a disciplinary spokesman are set forth in the provisions pertaining to the disciplinary liability of the judiciary and the prosecution. Hence, a disciplinary spokesman’s liability is a sub-type of the general disciplinary liability of the judge (or prosecutor) who serves as a spokesman.