I like court trials. This is real life in a nutshell. People, emotions, a little sadness, a little joy, a lot of stress, but even more satisfaction. One of the most interesting questions that I have faced in the trial life was: is the judge responsible for violating the defendant’s dignity during the trial?
It was 2012. One day a client called me, he was clearly upset.
‘Today at the hearing – and it was a criminal case, the details are not important – my lawyer submitted to the court my medical certificate’.
The defendant is ill, the hearing cannot proceed, explained the defence counsel. The judge was not happy. He ordered a break. He used it for Internet research to decipher the symbol of the disease. As you know, for the sake of patients’ privacy, the names of diseases are not placed on the medical certificates. With this new knowledge, the judge decided to share his findings with quite a large audience. ‘The hearing must be adjourned because the defendant is suffering from severe infectious intestinal disorder combined with lung disease’, he explained.
The Client continued: ‘Is it okay for everyone to know what illness I am suffering from? And this is not even the truth, because the court has deciphered these symbols incorrectly. I would like the judge to apologize to me. It is not about money. It is about the principles.
I replied: ‘The judges are people too. They are not above the law. They are not liable for putting a defendant in jail, this is what the justice system is about. But they should apologize for an unjustified humiliation of the defendant. The law is the same for everyone on this point. That’s the theory’, I said, ‘but in practice no judge has ever had to apologize for a thing like that as yet’.
‘Maybe we’ll win or may we’ll lose, we have to try anyway’, he said.
And so we did. I brought a lawsuit for the protection of personal interests. I argued that disclosing (with errors, it should be added ) the details of the defendant’s illness ridiculed him and put him at the risk of harassment. It was not necessary for the purposes of the proceedings. The judge only wanted to annoy the client (this was not the first hearing adjourned for health reasons). We did not demand any financial compensation. We were only interested in an apology.
In the first instance, it was as expected: The Regional Court dismissed the claim. It is not possible to violate the personal interests of the defendant, the judgment explained. By informing the public about the drastic details of my client’s health, the judge was simply exercising justice. He was taking documentary evidence. He cannot be held liable for this. If the client felt offended, he should have turned to the disciplinary bodies…
The appeal was short. I argued that one cannot reject out of hand the judge’s liability for violating the interests of persons whose rights are decided upon by the judge. The taking of evidence is not about sharing with the public with details of diseases, which by the way were in fact other than those stated as code in the medical certificate. Harassment under the guise of a judicial act is still harassment and it is not protected. If we want the human rights standards to truly apply in Poland, the judge, too, must apologize for violation of dignity, also dignity of the defendant, even if the violation occurred during the trial. After all, by getting the status of the defendant, the person concerned is not deprived of human rights, including the right to privacy, unless this interferes with the aims of the proceedings. Consequently, the person deserves an apology, even if modest, and I have asked for precisely such an apology in the statement of claim, I concluded.
We had to wait for the appeal hearing until 2013. We were not very optimistic. After all, it would be safer for the adjudicating panel to share the view that the judge has “immunity” in the courtroom. That nothing can happen to him in terms of civil liability for his behaviour towards the defendant. On the other hand, upholding the appeal would require some courage, a look from the outside, from a purely legal perspective. After all, the court was in fact to make a statement that concerned that court as well.
And yet it was worth it. The Court of Appeal had enough courage and calm. It varied the appealed judgment and ordered an apology. Only in writing, but it set a rule: the judge is liable for the violation of personal interests of the defendant at the hearing. The new standard has gained a foothold in the jurisprudence of the Polish courts. It was therefore a memorable day in the life of our Firm. One of those cases in which a lawyer not only watches the machine of the justice system at work but also contributes to making it move…
Let me just add that our joy was later somewhat dampened by the Supreme Court, which upheld the respondent’s cassation appeal. Fortunately, the court preserved the principle, but explained that in this particular situation the judge was taking evidence, so he did not have to apologize. I would feel uncomfortable arguing with the Supreme Court’s decision made in my own case, so I will end this recollection here.