Factors important for the popular perception of the rule of law
All these difficult issues help to explain the relatively low level of trust in courts and the judiciary in post-communist Poland.
Aside from history, popular opinion on courts and judges is also formed from various sources of knowledge regarding the execution of laws as well as personal contacts with courts.
As already mentioned, the main source of knowledge about law and the application of laws are presentations given by mass media - TV and newspapers. They play an enormous role in the formation of popular images of law, the judiciary and the court system; therefore they have a salient impact on the opinions about the fulfilment of the rule of law in popular consciousness. Opinions communicated by the media are of particular importance also because they are accessible to everybody, and are subject to informal exchange. They awaken emotions, because they are focused on the most controversial, political and criminal cases. Therefore, they are not only informative, but also performative.
The media fulfil this important role in a very peculiar way.
In light of the research conducted in Poland, the readers are not only wrongly informed about law and court decisions, but the media often create a negative image of the judicial system, and impair its authority. The opinions propagated in the press on law and courts - even by some prominent journalists - are mostly one-sided, i.e. critical, highly emotional; they are concentrated on cases that awaken serious doubts, and they are often accompanied by sensational “news” on the corruption of the system of justice, accusations of nepotism, and the ties of judges with the old regime (Daniel 2003, 134; 2007, 73). The contacts with courts and court proceedings present another important factor in shaping the opinions about the judiciary. This factor underwent a significant change after the collapse of the former regime. Thus, in the year 2009, 30% of Poles declared personal contacts with courts to be the most influential factor in forming their views (Skqpska and Bryda 2013, 87).
The formation of trust in the judiciary is affected by features that determine differences between law-applying institutions, especially courts, and other public institutions. American research on satisfaction with court decisions (Tyler 2006) indicates the particular importance of procedural fairness (fulfilment of the fair trial principle). It means the observance of procedural standards in each particular case, including especially the independence and objectivity of judges, the equal treatment of parties, the right to defence, understood as a right to present one’s own argument and to respond to the opponent’s argument, transparency of proceedings, and a right to legal support, to decide on the personal, subjective feelings that one was treated fairly, independently of the final decision (verdict) of the court (Tyler 2006, 37). Thus, in this broader conceptualization, procedural justice means not only the fulfilment of the strictly legal standards, but also the observance of some cultural standards, i.e. the cultural norms responsible for the “civility” of the proceeding’s participants treatment, and the communicative standards: the communicative rationality of the court’s proceeding, i.e., the truthfulness, the intelligibility and argumentative validity of the communication in the court. Here the particular responsibility rests on the judge, his or her way of communication with the parties and the broadly defined “court trial culture”, including in particular respecting the authority of the court. Aesthetics and dramaturgy are not to be disregarded here - the architecture of buildings, arrangement of court rooms, outfits of the parties and the “judicial etiquette” on the one hand, and the substantive competence of the judges on the other. Cultural factors overlap or cross with the mentioned factors comprising a “fair trial” and constitute an important context for the implementation of this principle. Yet another important context for the popular perception of the rule of law, and in effect, the popular trust in judges and courts consists of the organizational standards and the actual law enforcement. It should be emphasised that even the most suitable formal guarantees of a fair trial may be ineffective if participants in the proceedings will experience mediocrity, disorganization and arrogance.
Hence, the level of trust placed in courts and judges, and the opinions on the fulfilment of the rule of law principle differ depending on historical experience, the approach to the violation of human rights committed by the functionaries of the former regime, and the actual fulfilment of the fair trial principle: the broadly understood procedural justice in the process of executing the laws in the context of the communication, culture and organisation of the court proceedings and the enforcement of court decisions.
Let’s look closer into data from the Public confidence in the Judiciary in Poland (CBM Indicator 2009) report.
As it was already mentioned, according to the results collected in the survey on the public confidence in the judiciary in 2009, in Poland the number of persons who have participated in proceedings before the court is rapidly increasing. The respondents’ declarations shed light on this matter, revealing that this percentage had reached 30% in 2009. The data confirm the hypothesis that the system change results in an increase in contacts with instances of the actual application of laws. Another set of data indicates that Poles participate in court proceedings mainly in the role of witnesses (59.1%) and claimants (27.5%).
It should be emphasised that Poles most often appear before civil courts. Thus, the opinions on the courts and trust in courts among the participants in the proceedings are mostly shaped by contacts with civil courts.
As the data indicate, only 3% of the Poles surveyed have absolutely no trust in courts and 3.5% declare complete trust. The prevailing opinion, however, indicates high and rather high trust in the courts’ ability to serve justice. In fact, on a 7-step scale, the respondents assessed their level of trust in courts mainly as 4 (29.9%), 5 (25.3%) and 6 (14.9%). Thus, in the light of the survey, over one- third of the Poles, by assigning a digit corresponding to their level of trust, indicate a somewhat ambivalent attitude, whereas 40% of the Poles assess their level of trust in courts as predominantly positive (that is, a total grading of one’s own level of trust as 5, 6 or 7).
The idea that Poles believe in a significant role for the courts and the law in regulating disputes is confirmed in the data on the institutions to which the Poles would turn when faced with a disputable matter regarding ownership or financial liabilities. Most often it would be either attorneys at law (lawyers) to whom one should turn for assistance (25.5%) or to the court directly (16.8%). The respondents hope for an accurate and reliable resolution and the chance of retrieving the disputed item or money. Therefore, over 40% of adult Poles notice and appreciate the importance of professional advice and the significance of proceedings before the court in civil cases. What is characteristic is the low percentage of opinions indicating professional mediation as a method of regulating disputes over property and financial cases (6.1%). The survey research leads to one more conclusion: Despite the strong emphasis placed on the so-called alternative methods of regulating disputes as well as the relatively high costs of proceedings before the court, financial and otherwise (e.g. in the form of wasted time, the need to prepare for the proceedings, stress and uncertainty as to the outcome), Poles are somewhat more oriented towards fighting and a willingness to prove their rights rather than adopt an amicable attitude and willingness to reach a compromise. Without a doubt, the chances for the enforcement of judicial decisions play an important role here.
An attempt was also made to examine the assessment of courts and judges with regard to their independence and impartiality, independence from the media, resistance to the influence of other participants in the proceedings (attorneys at law, prosecutors, experts and other participants) as well as the fairness of judgments and overall professionalism.
The gathered data indicate that on a five-point scale the independence of courts was evaluated favourably, when asked about in general. Specifically, 46.1% of the respondents strongly agree or agree with the declaration that nobody has influence on judicial decisions and judgments, 24.4% disagree and strongly disagree. The opinions concerning the professionalism of judges are also high. 55.8% of the respondents agree or strongly agree with the opinions that judges demonstrate high professionalism and experience in hearing cases, 9.6% disagree or strongly disagree. Further questions about the independence of courts, however, indicate inconsistencies and contradictions in the opinions of the respondents.
Thus, 25% of the respondents disagree or strongly disagree with the opinions that judges succumb to undue influence, whereas 42.8% agree or strongly agree with such opinions. 40.6% of the respondents agree or strongly agree with the opinion that courts are free from any political influence, especially the influence of political parties, whereas 27.4% disagree or strongly disagree; 25% disagree or strongly disagree with the statement that courts are influenced by the media, and 42.8% of the respondents agree or strongly agree with this statement. In the light of the opinion of the majority of the respondents, courts succumb to the influence of lawyers, prosecutors and experts, and the pressures from the participants in the proceedings. 18.1% of the respondents disagree or strongly disagree with the statement that judges are impartial in relation to the participants in the proceedings, whereas 47% agree and strongly agree with it.
The respondents differed rather considerably in their opinions as to whether courts pass fair judgments: 29.5% of the respondents disagree or strongly disagree with the statement that courts always pass fair judgments, whereas 36.5% of the respondents agree or strongly agree with it (CBM Indicator 2009).
In conclusion, a major part of Polish society believes that in general nobody can influence judicial decisions and that courts are under no influence of political parties, yet a considerable part of the respondents is of the opinion that judges are not impartial, but instead they succumb to the influence of the media and other participants in the proceedings - which affects the realisation of the fair trial principles.
Moreover, as indicated by the data, whether one participates in proceedings before a court has no direct influence on the opinions of the respondents. This finding is confirmed by the comparison of the declared level of trust in supranational and international courts (the European Tribunal of Human Rights, the European Tribunal of Justice, and even the Tribunal of The Hague), domestic courts of the highest level (the Supreme Court and Constitutional Tribunal) and various types of domestic courts. The respondents declare higher trust in European courts and supranational courts than in the Polish courts (CBM Indicator 2009).
Supranational courts and domestic courts of the highest level - with which only few respondents had any direct contact and about which they know almost nothing - enjoy the highest level of trust in the opinion of Poles. Thus, 7.7% of adult Poles declare full trust in the European courts and international courts, only 0.7% declare a complete lack of trust in such courts, whereas nearly 50% of the Poles surveyed declare that their level of trust is 5 and 6, which indicates above-average trust (an increase of 10% in comparison with the abovementioned declared average level of trust in Polish courts).
The survey was focused on the assessment of the work of the courts, the manner in which cases are heard, and on the functioning of the courts. Moreover, the respondents were asked about their level of satisfaction with the judicial decision with regard to their own case. The respondents were requested to assess the work of courts on a 1 to 5 scale with regard to the availability of information at court secretariats, the speed, professionalism and efficiency of service at the secretariats, the openness of the proceedings, the reliability of the evidence assessment, the efficiency of the court proceedings and the politeness of the court secretariats’ personnel. On the basis of the findings it is possible to formulate a general conclusion that the respondents rather highly assess the work of the courts with regard to the abovementioned features. As the data indicate, the highest grade was given to the politeness of the personnel and to the professional service at court secretariats, and also, respectively, the openness of the proceedings and reliable assessments of evidence. The lowest scored was the assessment of the efficiency of the proceedings. The last of the mentioned opinions is reflected in the data on the duration of proceedings regarding the cases in which the respondents participated. In fact, in the opinion of a vast majority (58.7%), the proceedings last too long. In general, however, the assessment of the work of courts was rather high: the mean assessment on the 7-point scale is 4.27.
It should also be noted that the respondents participating in the proceedings were mostly satisfied with the judgment (68% of the respondents); one-third of the respondents were dissatisfied with the judgment as it did not satisfy the respondent or was unfair, or the case was lost. The majority, over 70% of the respondents who participated in the proceedings, declared satisfaction with the court’s argumentation, 29.1% of the respondents were not satisfied with it, assessing it as unclear, biased or unfair.
Summing up, the majority of the participants in the proceedings before the courts in Poland assess the work of courts positively. This includes persons who lost their cases. It is a significant and beneficial difference with the popular images of law and the application of law.
In order to examine the culture of the trial and atmosphere of the courtroom, the respondents were also asked about the features describing the conduct of judges. A list of 14 various features describing the conduct of judges during proceedings were presented to the respondents. The features included: chaotic - organised, emotional - logical, lenient - strict, unworthy of respect - respectable, unprofessional - professional, unfriendly - friendly, impolite - polite, careless - careful, unbalanced - composed, hasty - calm, biased - impartial, submissive - firm, superior - approachable, jocular/witty - serious. As the results of the analysis indicate, the mean assessment of each of these features is high - about 5 on a 7-step scale. Moreover, a vast majority (80.5%) of the participants in the proceedings before the court stated that the judge was in control of the proceedings, and the authority of the court was observed.
The personal culture of a judge and the outcome of court proceedings play an important role in the shaping of trust in courts and the judiciary. The level of trust is definitely higher when a judge conducted a trial politely and professionally rather than coldly/impolitely and with an air of superiority, and when a respondent declares that he or she won a case in a court and was pleased with the judgment and the statement of reasons. From the respondent’s perspective, the outcome of the proceedings is more important than the personal culture of a judge. A positive outcome increases the level of contentment (satisfaction and the feeling that a fair trial was conducted).
Finally, the duration of court proceedings - in particular the length of the proceedings and waiting time for the court’s judgment - is very important with respect to the level of trust placed in courts and the judiciary. Trust in courts and the judiciary increases as the duration of court proceedings decreases, in accordance with the principle that courts should judge quickly, effectively and justly. According to the data analysis, trust in courts and the judiciary is thus a direct reflection of personal experience connected with judges, the institutional efficiency of courts, the duration of court proceedings and the effectiveness of the enforcement of decisions/verdicts.
The level of trust in public institutions (including courts) is diversified, and the institutions assessed by the respondents have different locations/positions in social space. In order to present this mutual position of institutions in relation to the public trust survey, a distance matrix between the assessed public institutions was constructed on the basis of multidimensional scaling. Multidimensional Scaling, MDS, is a statistical technique enabling detection of so-called latent variables that, although not directly observed, explain similarities and differences between the studied objects (in this case, public institutions). At the beginning of the procedure there is usually the distance or similarity matrix between the objects. This may be, for example, a correlation matrix. Multidimensional scaling aims at the distribution of objects as points in n-dimensional space, so that similar objects are closer to one another. The result of the analysis is for each object n of real numbers forming the Cartesian coordinates[1].
The distance matrix of the studied public institutions was created on the basis of the arithmetic means of the evaluations of trust in these institutions. The obtained results were subject to multidimensional scaling with the use of the ALSCAL algorithm (Alternating Least Square Scaling). This algorithm enables the analysis of data measured in order, interval and quotient scales; it also ensures the possibility of analysis on discrete and constant, symmetric and nonsymmetric data.
The application of multidimensional scaling for the data from the trust in courts and the judiciary survey would enable the creation of a geometrical representation of the analysed objects, i.e. public institutions and the presentation of similarity between them.[2] The positioning of public institutions in the context of trust using the ALSCAL algorithm is presented in the chart below.
Chart 1: Social perception of distances between public institutions
Legend:
Kosciol Church
NSZZ NSZZ (Independent and Self-Governing Trade Union
IPN IPN (Institute of National Remembrance)
Sluzba zdrowia Health Services
OPZZ OPZZ (All Poland Alliance of Trade Unions)
Szkolnictwo Education
TV publiczna Public TV
Wojsko Army
Policja Police
NGOs NGOs
Sejm Sejm
Sqd Najwyzszy Supreme Court
Samorzqd lokalny Local self-government
ZUS ZUS (Social Insurance Company)
Nauka, naukowcy Science, scientists
Radio Radio
UE EU
Prasa Press
TV prywatna Private TV
Banki Banks
Senat Senate
Rzqd Government
Instytucje finansowe Financial Institutions
Gielda Stock exchange
The analysis of the chart makes it possible to state that the directly observed similarities between public institutions (the social positioning of institutions) may be presented as the resultant of two dimensions of social perception. Dimension 1 can be interpreted in the context of the implementation of private - public interests by institutions, whereas dimension 2 can be interpreted as the power - knowledge dominance[3]. The two-dimensional systematisation space distinguished under the analysis suggests that the original criterion for the shaping of trust in public institutions is the relation with public interest, whereas the secondary criterion is political neutrality.
According to these two criteria, the Supreme Court, in comparison with other public institutions, is positioned in the social consciousness as a politically neutral institution engaged on the one hand in the protection of the public interests/good, and on the other hand in the protection of private interests. The Supreme Court is perceived as a mediator of the interests of various social actors, a mediator independent of political pressure. Moreover, the Supreme Court is located among the institutions which are not involved either with politics or the market, and are rather connected with the protection of the public good. This finding, presented above in the distance model, supplemented by the data on the level of trust in the supranational law-applying institutions (European and international courts) focused on the protection of human rights, justify an argument that the protection of the public good and human rights protection are deciding factors for the level of trust in courts and judges, and for an empirical legitimation of the rule of law.
- [1] Multidimensional scaling is used for finding structure in the set of distances betweenparticular objects. It is possible by attributing observations to particular places inconceptual space (usually two- or three-dimensional) so that the distances betweenthe points in space, as close as possible, correspond to particular measures of nonsimilarity. In many cases dimensions of this conceptual space may be interpreted andused for better understanding of the data. If n=<3 (n number of dimensions) the results may be presented in a chart. Rotation of the coordinates system and the mirrorreflection do not change the distance between the items so that the result of scalingmay be subject to rotation or reflection. Most often it is done when the discovereddimensions correspond to geographical coordinates. Multidimensional scaling is analternative method with respect to factor analysis.
- [2] In the analysed example the index of adjustment of the received model to inputdata (STRESS) amounts to 0.148 and the RSQ measure = 0.895. If the coefficientSTRESS =< 0.2, the received configuration is in monotonic relation to the inputdata.
- [3] If we make a rotation (transformation) of the coordinate system for a better interpretation of data, the trust in public institutions appears to be shaped in the followingdimensions: religion - economy and knowledge/law - tradition.
