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THE LEGAL STATUS OF A JUDGE IN THE KINGDOM OF POLAND.

TABLE OF CONTENTS

I.   Constitutional Period
II.  The Period Between the Uprisings
III. The Period After the January Uprising
VI.  Conclusion
References


I. THE CONSTITUTIONAL PERIOD

The Constitutional Act of the Kingdom of Poland signed by Alexander I on the 27th of November, 1815 and announced to the Poles on the 24th of December the same year (4) referred to the judiciary in Title 5 "About the Judiciary". 15 articles were elaborated on the subject of the judicature (Article 138 up to Article152) that specified the status of the judicature, the position of judges and the organization of the judiciary.

In the first place, in Title 5 Article 138 the Constitution formulated the rule of sovereignty of the judiciary defining it in the next provision as not subordinate to any influence of "the highest or ministerial authority or to any other power." The rule of irremovability of judges guaranteed sovereignty. The judges were supposed to be nominated by the king for life or elected and could not be, as a rule, dismissed from the position. The elected judges could not be dismissed during their term of office and both (the nominated and the elected) could be dismissed from the position only trough the final and legally binding decision of the court, conviction for an offence related to the office or for any other delinquency (Article 142).

The position of a judge was strengthened by the requirement of proper education, obtained in the Duchy of Warsaw, accomplishing judge's legal training and passing the exam for an assessor and a judge. Only a magistrate did not have to be an expert. (5) The expert nominated for life was also a deputy judge. (6) In 1918 the prerequisites for the education of judges were clarified. Candidates for higher judiciary positions, including judges, advocates, prosecutors and court reporters were required to graduate from the Law Faculty of the University of Warsaw and to pass the exam before the Highest Examination Committee under the supervision of the Council of the State. The exam could be taken by a candidate who had previously passed the exam before the voivodeship committee and accomplished a two-year legal training or held a proper office for a year. The judiciary exam could be sat not more than twice. (7) The Constitution of the Kingdom of Poland with regard to the organisation of the judiciary formulated the rule of two-instance proceedings. The first instance was preceded by conciliatory proceedings before the magistrates. The Courts of First Instance in civil cases were, depending on the amount of a claim, civil courts and police courts or lands tribunals and congressional courts and, in criminal cases--county courts (articles 146-149). Appellate tribunals were authorized to act as courts of second instance. For all civil and criminal cases, except cases for high treason the Supreme Tribunal in Warsaw was the court of last instance. The Supreme Tribunal consisted partially of senators and of judges nominated for life by the king (article 151). In case of high treason and crimes committed by higher officials the Sejm Court consisting of all senators was established. (Article 152). (8)

The structure depicted above did not function in practice. The functioning structure was based, with minor amendments, on the judiciary of the Duchy of Warsaw era, i.e. on the basis of Organizacja sqdownictwa cywilnego z 13 maja 1808 r. w Ksicstwie Warszawskim [The Organization of the Civil Judiciary on May 13, 1808 in the Duchy of Warsaw] and on Przepisy tyczqce sic organizacji oraz atrybucji wladz sqdowych i osob do skladu nalezqcych [The Regulations Related to the Organization and Attribution of the Judiciary Authorities and the Persons Belonging to the Judiciary Staff] (9) on May 23, 1808. The Court of the Highest Instance, created on the grounds of the decision of the Temporary Government of the Kingdom of Poland on January 21, 1815, was also functioning at that time as a court of cassation in civil cases. It consisted of senators and judges nominated by the king. (10)

In conclusion, the judiciary of the period of the Constitution that started in 1825 in the Kingdom of Poland was completely separate and independent (11) in the context of administration and jurisdiction, which was guaranteed expressly by the rules of sovereignty and irremovability of judges specified in the Constitution.

II. THE PERIOD BETWEEN THE UPRISINGS

The failure of the November Uprising that preceded the replacing of the liberal Constitution with the Organic Statute dated February 14/26, 1832, had an impact on the institutional position of a judge. (12)

The Statute introduced significant changes in the scope of sovereignty of judges. (13) Since then the judiciary was supposed to be administered and functioning in the name of the King, whereas implementation of the law of pardon and reducing punishment was solely his competence. The courts were to consist of both nominated and elected judges. The Statute rejected the rule of irremovability of judges from their positions for the sake of their "dismissal whenever there is such a necessity" or they are removed by the court for misdemeanours or transferring to another position (Article 57). The judge could be "removed" from his position for "the abuse of the authority and any other proven misdemeanours against the certain order" due to the court decision (Article 58). Such a judgement could be issued in criminal and disciplinary proceedings. The rule of irremovability of judges from their positions was eventually revoked by the 1859 Act of Civil Service. Even though it did not concern judges, in practice it applied to them. Even disciplinary proceedings (14) stopped to be the guarantee of irremovability of judges.

The status of a judge was also weakened by employing for the state judiciary contrary to the binding regulations people without legal education. The problem appeared after closing the University of Warsaw. Founded in 1840 in Warsaw the Guberniya Gymnasium two-year Legal Courses did not have the rank of an academic institution, whereas Russian universities were not able to educate the sufficient number of lawyers. The judiciary positions were, then, taken up by people without proper theoretical preparation. (15)

The Statute slightly modified the structure of the judiciary replacing appellate tribunals with appellate courts and instituting the Chamber of the Supreme Court in Warsaw. The composition and the range of activities of the Chamber was supposed to be specified in a separate act (Article 67). In practice, the failure of the November Uprising and institutional changes introduced as a consequence of the November Uprising made the Court of the Highest Instance cease to exist due to a silent abolition performed by the Chamber of Deputies and the Senat of the Sejm of the Kingdom of Poland. The Statute omitted the functioning of the military emergency judiciary related to the binding in the Kingdom of Poland since September 1831 the law of the state of emergency. (16) Moreover, it vouched the national character of the judiciary acknowledging the Polish language as an official one (Article 34 of the Statute).

In practice, the organising and adjudicating structure of the judiciary specified in the Statute functioned until the end of 1841. (17) From 1832 till 1856 Emperor (Tsar) Nicholas I of Russia exercised the prerogative provided for in the Law on Pardon or the Reduction of Punishment. Up to 1836 the courts of the Kingdom of Poland adjudicated on the basis of the codes reserved by Article 1 of the Statute: the Civil Code of 1825 and the Criminal Code of 1818. (18) Moreover, as a result of the announcement of martial law (19) on the basis of Article 10 of the Statute of 1832, military courts were introduced in the Kingdom of Poland. Their jurisdiction covered the cases of the accused of high treason and, since 1845; they expanded the military courts jurisdiction over all the civilians who resisted the military forces.

Such rules of the judiciary functioning and the status of a judge were even aggravated because of unfavourable policy of partitioning powers that was the result of the general Tsar's policy towards the Poles.

With the beginning of the 1840's the unification policy was reflected in the judiciary organisation. Its traces could be found in the elimination of the Council of the State and the Court of the Highest Instance of the Kingdom of Poland by the Decree dated September 6/18 issued by Emperor Nicholas I of Russia. The same Decree appointed the 9th and 10th Warsaw Departments of the Governing Senate as their replacement. The composition and jurisdiction of the departments were set forth in the Organic Law of March 26, 1842 together with the resolution O sposobie zanoszenia i rozpoznawania skarg na wyroki mocq ostatniej instancji dotqd wydane [About the Methods of Submitting and Examining the Complaints filed until today against the Sentences Passed by the Court of the Highest Instance]. The powers of the 9th Department included examining civil cases and appealing against the sentences of the appellate courts considering complaints related to bringing to justice judges or the highest officials of the civil judiciary system and administration. The 10th Department was authorized to deal with criminal cases with the appeals submitted by the prosecutors and the accused against the sentences of the appellate courts passed by the court of the second instance or against its decisions. It also considered complaints against the higher judiciary officials and their misdemeanours on the basis of the binding provisions. (20) Implementation of changes resulted in the establishment of three substantive judiciary instances, which, consequently, led to the delays in the proceedings. (21) Moreover, the Emperor's Decree of 1841 gave the deputy extensive authority to select composition of the highest judiciary instance in the Kingdom personally. The candidates for the heads of the departments and their personnel, together with the candidates for senators and the members of the Senate at particular departments were presented to the Emperor by the deputy. (22)

Another step made by the Emperor's government was gradual Russification of the judiciary and judges. The process was initiated with the new Criminal Code given to the Kingdom in 1847, modelled on the Russian's and called the Code of Main and Corrective Punishments for the Kingdom of Poland [Kodeks Kar Glownych i Poprawczych dla Krolestwa Polskiego] and provided for very repressive system of punishments. (23)

In conclusion, during the period between the uprisings, the basic legal act: the Organic Statute of 1832, branched off from the sovereignty of the courts guaranteed in the Constitution and outlined the role of the Emperor as the source of the judiciary. The Emperor nominated, recalled and removed judges. (24) Since 1834 there also functioned the requirement to confirm the criminal sentences passed by another court or a different authority, an Emperor or a deputy. (25) The solutions depicted above evidently violated the sovereignty of the judges and the division of power.

III. THE PERIOD AFTER THE JANUARY UPRISING

The year 1864 starts the period of preparation and implementation of the major reform of the judicial system in the Kingdom of Poland. On November 25/7, 1864 the Arranging Committee of the Kingdom of Poland [Komitet Urzqdzajqcy Krolestwa Polskiego] set up the Legal Commission. Its special task was to prepare the judicial reform. The main political aim of the reform was Russification. Russian lawyers were directed to the Commission. However, because of the fact that the civil law of the Kingdom was not generally known by Russian lawyers, in the end Polish judges were also elected to the Commission. The Reform was realized not before the middle of 1876. Since July 1/13 of that year the new courts started exercising their jurisdiction in the Kingdom, basically the same as in Russia, and the proceedings before them were regulated by the Russian Proceedings Acts. both civil and criminal acts of 1864..

Since then on the territory of 1-3 gmina regions district courts were functioning composed of at least 3 people. For the cities, accordingly, one-person magistrate's courts were established. The court of the second instance was, for both, the convention of the magistratess. Such a court consisted of a chairman of the convention and the judges of the convention together with the magistrate. Civil and criminal cases that were not in the jurisdiction of district courts were directed to regional courts organized for every Guberniya and adjudicating with 3 professional judges in a panel. The appellate court for the sentences from regional courts was the Judiciary Chamber [Izba Sqdowa] in Warsaw consisting of the nominated judges and adjudicating with 3 people in a panel. The judicial departments (26) constituted the cassation instance of the Senate.

Unfortunately in the Kingdom of Poland at that time the judges were not independent and irremovable. Presidents, vice-presidents and judges of regional and appellate courts could be removed within 3 years of the existence of new courts organized on the basis of the 1875 Act. Lay judges and judges in district courts, magistrates, chairmen of the conventions of the magistrates could be "on the significant grounds" suspended from the positions and dismissed before the end of the service by the Minister of Justice in coordination with the Governor General. The chance to remain in office was, taking into consideration the first of the listed categories, to obtain within 3 years the government's trust. The remaining judges could be removed anytime. The courts were subordinate to the Emperor's authority up to such a point that in the case of certain crimes the sentence had to be confirmed by the Emperor himself before it came into force.

The limitation of judges' sovereignty also resulted in the right of the Minister of Justice to move criminal cases from one judicial region to another. (27)

Russification proceeded. Since 1873 the official Russian language was introduced in the courts. The process of Russification intensified since 1888 when it became the rule to entrust judicial vacancies to the people of Russian origin. (28) Provided that until the Reform in 1876 the Poles were the majority among the judges, in 1882 they constituted only 25% of the entirety of judges. In 1907 in the Judiciary Chamber there was not even one person of the Polish origin, 15 were left in regional courts and 1 among magistrates. (29)

Still there were not enough lawyers for the judicial position. As an example it can be pointed out that in 1882 for 116 magistrates and chairmen of magistrates' conventions there were 52 non-lawyers and 70 people took up their positions without any judicial practice. Also, 5 district judges (30) did not have legal education.

To conclude, it is necessary to point out that the period after the suppressing of the January Uprising was characterized by the preparation and implementation of the judicial reforms of the Kingdom of Poland. The main reasons for the Reforms were unification of the judiciary and Russification of the judges. Not a single legal document of that time referred to the sovereignty of judges. The judiciary was subordinate to the Emperor's power and officials operating on his behalf.

IV. CONCLUSION

At the beginning, during the so-called constitutional period of the existence of the Kingdom of Poland the legal status of a judge was specified by the liberal, as for that time, Constitution. The legal status of a judge was expressly delimited the Constitution of 1825 by the principles of the sovereignty and irremovability of judges. It was required from judges to be professionally prepared, which strengthened their status.

The situation changed by the provisions of the Organic Statute that deprived the judiciary of its basic guarantees: sovereignty and irremovability. The possibility to dismis a judge from his office or to move him to another one, the right to interfere in the process of adjudicating and administering punishment did not serve well to the sovereignty of the third power and creating trust in judges. The policy of unification and Russification was frequently used at the expense of the selection of judicial staff in accordance with the professional qualification criteria and resulted in discrediting the judicature. The Poles treated the judiciary of the epoch as a foreign element.

THE LEGAL STATUS OF JUDGE IN THE KINGDOM OF POLAND

The legal status of judge has been a constant subject of attention to Polish researchers. Although the literature abounds with elaborations that concern judiciary in different historical periods, the importance of judge in the Kingdom of Poland that was created in 1815 has always been diminished. In the paper, therefore, the role and the status of judge with reference to administration of justice in the Kingdom of Poland was highlighted. The authors focus on the characterization of the legal position of the judge that was firstly defined in the Constitution of the Kingdom of Poland, and then in the Organic Statute of 1832.

References

[1.] Demidowicz, T. (2010). Statut Organiczny Krolestwa Polskiego w latach 1832-1856. Czasopismo Prawno-Historyczne. Journal 1.

[2.] Kaczynska, E. (1994). Czlowiekprzed Sqdem. Spoleczne aspekty przestcpczosci w Krolestwie Polskim (1815-1914). Warsaw.

[3.] Sobocinski, W. (1970). Zapomniane prawo o organizacji sqdownictwa w Krolestwie Polskim z 1856 r. (Geneza i przygotowanie reformy). Czasopismo Prawno-Historyczne.Volume XXII, Journal 1.

[4.] Historia panstwa i prawa Polski, volume III: Od rozbiorow do uwlaszczenia, eds. J. Bardach. Warsaw 1981.

Anna Korzeniewska-Lasota (a, b, 1)

(a) University of Warmia and Mazury in Olsztyn, Poland

(b) Michal Lasota, Poland annakorze@wp.pl

(1) Author

Dr, Faculty of Law and Administration, University of Warmia and Mazury in Olsztyn, Poland Michal Lasota; Judge in the Nowe Miasto Lubawskie, Poland Wydzial Prawa i Administracji UWM, ul.Warszawska 98, 10-702 Olsztyn

(2) See A. Korobowicz, Sqdownictwo Krolestwa Polskiego 1876-1815, Lublin 1995.

(3) A. Korobowicz, Reforma ustroju sqdownictwa w KPpo 1863 r. Przygotowania i tresc, Lublin 1976,

(4) The text of the Constitution see S. Kieniewicz, Przemiany spoleczne i gospodarcze w Krolestwie Polskim(1815-1830). Wybor tekstow zrodlowych, Warsaw 1951, pages 56-84.

(5) Nominated for 6 years among the double number of candidates chosen at a Land Sejmik [local parliament]. The expert was not irremovable from the position, but could be recalled in justified cases.

(6) See E. Kaczynska, Czlowiek przed Sadem. Spoleczne aspekty przestcpczosci w Krolestwie Polskim (1815-1914), Warsaw 1994, pages 97-98.

(7) Historia panstwa i prawa Polski, volume III: Odrozbiorow do uwlaszczenia, eds. J. Bardach, Warsaw 1981, pages 486-488.

(8) The Sejm Court adjudicated only once, in the case of the members of the National Patriotic Society.

(9) Cf. T. Demidowicz, Statut Organiczny Krolestwa Polskiego w latach 1832-1856, Czasopismo Prawno-Historyczne 2010, journal 1, page 139.

(10) See Historia panstwa i prawa Polski, volume, op. Cit., page 477.

(11) Por. A. Korobowicz, Zmiany w ustroju sqdownictwa najwyzszego w Krolestwie Polskim w latach 1815-1876, Czasopismo Prawno-Historyczne,Tom XXIV, z. 2, 1972, s. 125.

(12) The text of the Statute see Krolestwo Polskie. Dokumenty historyczne dotyczqce prawno-politycznego stosunku Krolestwa Polskiego do cesarstwa Rosyjskiego, published by Maciej RadziwiH and Bohdan Winiarski, Warsaw-Lubun-Lodz 1915, pages 122-136.

(13) The Statute elaborated on the judiciary in the last 5th chapter entitled "O porzadku sadowniczym" ["About the judicial order"] (articles between 55-68).

(14) Historia panstwa i prawa Polski, volume III, op. cit., pages 488-491.

(15) Ibid., pages 486-488.

(16) See T. Demidowicz, Statut Organiczny Krolestwa Polskiego, op. cit., page 139.

(17) A. Korobowicz, Zmiany w ustroju sadbwnictwa najwyzszego w Krolestwie Polskim, op. cit., pages 125-140.

(18) See. T. Demidowicz, Statut Organiczny Krolestwa Polskiego, op. cit., page 148.

(19) Martial law was announced by the Emperor's ukase from the 11th/23rd of April 1833 with the date of the 26th of June 1833, even though it had lasted in reality in the Kingdom since September 1831.

(20) See A. Korobowicz, Reforma ustroju sadbwnictwa w Krolestwie Polskim, op. cit., pages 20-28 and A. Korobowicz, Zmiany w ustroju sqdownictwa, op. cit., pages 131-134.

(21) See Historia panstwa i prawa Polski, volume III, op. cit., pages 469-471.

(22) Ibid, pages 179-180.

(23) More in T. Demidowicz, op. cit., pages 159-160.

(24) The Emperor did not have a formal possibility to interfere in the jurisdiction of the courts.

(25) See more in W. Sobocinski, Zapomniane prawo o organizacji sqdownictwa w Krolestwie Polskim z 1856 r. (Geneza i przygotowanie reformy), Czasopismo Prawno-Historyczne, Volume XXII, journal 1, 1970, pages 111-152.

(26) See Historia panstwa i prawa Polski, t. IV: Od uwlaszczenia do odrodzenia panstwa, eds. J. Bardach, Warsaw 1982, pages 216-218.

(27) Ibid, PP. 215- 218.

(28) A. Korobowicz, Sqdownictwo Krolestwa Polskiego, op. cit., pages 88 and 96.

(29) Historia panstwa i prawa Polski, volume IV, op. cit., page 220.

(30) Ibid.
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Title Annotation:LEGAL PROFESSION ABROAD OR THE HISTORY OF LAW
Author:Korzeniewska-Lasota, Anna
Publication:Kutafin University Law Review
Date:Oct 1, 2016
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