2.1. Public Adjudication and the Right to Fair Trial
Public adjudication is a crucial component of the right to a fair trial. It is stipulated both at the international level, among them in Article 6 § 1 European Convention6 and Article 47 § 1 EU Charter,7 as well as within national jurisdictions, like in Article 45 § 1 of the Polish Constitution.8 The core of this principle is the right to observe and participate in court adjudication (Romańska, 2016). It offers in the form of public hearings the best and most direct platform for parties to the proceedings to present their reasoning directly before a court and to defend their rights (Kurzawa, Szustakiewicz, 2023). Moreover, public hearings allow judges to ask parties questions, observe their behaviour, and explain the procedural difficulties of the pending dispute. A platform for straight communication between a court and parties to the proceedings offers an appropriate way to settle the subject of a dispute and the possible ways to cope with it (Pabel, 2018). In-camera adjudication does not offer such diversified ways of interaction between courts and parties to the proceedings. Communication is then reduced to submissions in a paper or online documents. A court adjudicates only based on legal files without any personal contact with parties.
Last but not least, in line with the famous Lord Hewart dictum that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”9, public adjudication is expected to contribute to judicial legitimacy and reputation (Hjort, 2022, Kurzawa, Szustakiewicz, 2023), increase public trust in the judiciary (Pabel, 2018), and offer citizens the possibility to learn, first-hand, how the legal rules are applied in real life and, at the same time, to secure judges` impartiality (Romańska, 2016, Tarno, 2016) and control how courts exercise their tasks (accountability). In reality, these values are obtainable only under specific conditions when a public hearing is conducted in a fair, professional, and understandable manner. Otherwise, in-camera adjudication can be a better option for creating trust and acceptance of issued judgment.
The crucial and multifaceted role of public adjudication does not mean, that it does not know any limitations and even that the parties` personal participation in proceedings cannot be reduced or even excluded. Even if public adjudication is regarded as a general principle of law that parties can participate effectively in court action which is aimed at evaluating their rights and obligations,10 public hearings are not assessed as obligatory at all levels (instances) of court adjudication, especially if the parties exercised this right within the first instance and a dispute is limited to legal considerations.11 The requirement for a public hearing is implied at least before one instance.12 Oral hearings can feasibly be dispensed in disputes without credibility issues or contested facts that necessitate a hearing, disputes in which the courts may fairly and reasonably decide the case based on the case files,13 and disputes focused only on legal or technical assessment.14 However, a claimant should at least have the opportunity to request a public hearing, though the court may refuse this motion and decide the case in-camera on account of the detailed circumstances.15 Then, in-camera adjudication is not unlawful in itself and can be regarded as a tool for guaranteeing case resolution in a reasonable time, which is also a component of a fair trial stipulated in Article 6 § 1 European Convention Article 47 EU Charter, and Article 45 § 1 of the Polish Constitution.
2.2. Public adjudication in the Polish administrative judiciary
Focusing on the Polish legal order, the principle of public adjudication is expressly stated not only as a part of the right to a fair trial enshrined in the Constitution but also as a separate principle of the court-administrative proceedings outlined in article 10 of the Law on proceedings before administrative courts,16 located in the first chapter of this statute. According to its content, the hearing of cases shall be held in public, unless otherwise provided in specific statutes. Implementing these principles, article 90 § 1 of the LPAC establishes a physical hearing (face-to-face, including public hearings open for parties, their lawyers as well as all media or interested members of the general public) as a default mode of adjudication before the Administrative Courts.
However, in-camera adjudication in the court-administrative procedure that is extraordinary and possible only for particular adjudication expressly foreseen in p.b.c.,17 is assessed in the literature as more appropriate to adjudication created as a control over public administration (Paduch, 2021, Knysiak-Sudyka, 2022). It is so because the FIACs and the SAC adjudicate based on legal files submitted by public administration. A discovery proceeding before these courts is limited to documentary evidence.18 In other words, any other evidence like witness testimony or inspections are not legally permittable. Public hearings are reduced to a report of a dispute expressed by a judge rapporteur and a presentation of claims and conclusions by parties to proceedings. In practice, a physical hearing lasts approx. 20 minutes. In these procedural circumstances, it is questionable to what extent parties` attendance in public hearings can contribute to adjudication and influence its outcome.
In this vein, article 119 of the LPAC introduces a so-called simplified procedure (Pl: postępowanie uproszczone), aimed at resignation from particular procedural requirements to get a final case resolution in a quicker time. The simplification is based on Article 120 LPAC on changing public into in-camera adjudication19. The proceedings can be applied – among others – if a party has requested it, and none of the other parties has demanded a hearing. Then, it is up to the parties to the proceedings if they will or not take part personally in adjudication.
In response to the COVID pandemic and restrictions imposed to control its spread, two additional modes of adjudication have been introduced in ad hoc COVID law.20
One is an online hearing (allowing parties and their lawyers to present their reasons – but not for the media or general public to see justice done),21 and the other – in-camera adjudication. Contrary to the simplified procedure described above, in this mode, it is not the parties but the presidents of the departments of FIACs that makes a decision that the case will be adjudicated in camera. Parties consent is not required.22
Summing up, by the law, traditional physical hearing remains the default mode of adjudicating cases before the FIASs. However, there are three alternatives provided by LPAC (simplified procedure) and ad hoc COVID law (online hearing and in camera adjudication). They can be conceptualized using two dimensions – (i) degree of openness and (ii) requirement of parties’ consent.
[6] The act from 4th November 1950 the European Convention on Human Rights, henceforth as the European Convention.
[7] The act from 14th December 2007 EU Charter of Fundamental Rights (Journal of Laws 2007/C, item 303/1 as am., henceforth as the EU Charter).
[8] The act from 2nd April 1997 the Constitution of the Republic Poland (Journal of Laws 1997, No 78, item 483 as am., henceforth as the PC).
[9] The Decision of the King`s Bench Division, 9th November 1923, Case The King vs. Sussex Justices; Ex parte McCarthy, Application No. 1 KB 256, 259.
[10] The decision of the European Court of Human Rights, 1st June 2004, Case Valova, Slezak and Slezak v. Slovakia, Application No. 44925/98, § 63.
[11] The decision of the European Court of Human Rights, 25th April 1995, Case Fischer v. Austria, Application No. 16922/90, § 44,
[12] The decision of the European Court of Human Rights, 12th November 2002, Case Salomonsson v. Sweden, Application No. 38978/97, § 36.
[13] The decision of the European Court of Human Rights, 12th November 2002, Case Döry v. Sweden, Application No. 28394/95, § 37.
[14]The decision of the European Court of Human Rights, 19th February 1998, Case Jacobsson v. Sweden (no 2), Application No. 8/1997/792/993, § 42, ECtHR, 13th March 2018, Case Mirovni Institut v. Slovenia, Application No. 32303/13, § 37.
[15] The decision of the European Court of Human Rights, 12th April 2006, Case Martine v. France, Application No. 58675/00, § 42.
[16]Art. 10 of the Act of 30th August 2002, Law on proceedings before administrative courts, (Journal of Laws 2023, item 259 as am., henceforth as the LPAC).
[17] For example, a motion about a disqualification of a judge (Article 22 § 2 LPAC) or a request for reinstatement of a time limit (Article 89) can be issued in-camera.
[18] Article 106 § 3 LPAC
[19] Another simplification stipulated in the same article is combined with a reduction of judges` panels from three to one judge.
[20] The act of 2 March 2020 on specific solutions related to the prevention and combating of COVID-19 and other infectious diseases and crises they caused (Journal of Laws 2023, item 1327 as am., henceforth as COVID-Law).
[21] Article 15 zzs(4) § 2 COVID-Law.
[22] Article 15 zzs(4) § 3 COVID-Law.