Abstract
In order to prevent judicial bias and increase transparency within the court system, case distribution among judges is often subjected to specific rules. The question which arises, however, is whether these rules are obeyed in practice. In this paper, looking at the example from the Constitutional Tribunal of the Republic of Poland in the period 2011–2014, we check whether assigning judges to panels is consistent with the alphabetical rule that should govern the appointment of judges to cases. Our results show that the rule was fully obeyed only rarely and in fact, in most cases, it was notably disrupted. We test several potential explanations that may account for this issue. We find that the most obvious explanations such as formal preclusions, random events or other duties at the Tribunal can account for a minor share of the violations at best. Among the factors that we considered, a strategic composition of adjudication panels appears to have the highest explanatory potential.
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Notes
https://ec.europa.eu/commission/presscorner/detail/frn/ip_20_772 (accessed on 25.11.2021).
The High Court Independence Index is based on an ordinal scale converted then to interval (the higher the value of the index, the higher is the constitutional court independence implied). The score of this index for Poland was equal to 2.54 in years 2011–2014, whereas for Germany it was 2.52, for the UK: 1.84 and for France: 1.61. One can notice, as a reference point, that the best score in 2011–2012 was 3.44 (Australia) and in 2013–2014: 3.00 (New Zealand).
It might be noted that we differ from Gutmann & Voigt (2020) also in two other respects. First, their focus is on an aggregate measure for the whole judiciary system, which means that their measure is the product of various case assignment procedures applied by courts of different kinds. Our focus, in turn, is only on the constitutional court. Although our approach is much more narrow, it allows us to circumvent the potential problem with the fact that case assignment procedures and their observance may substantially differ between courts of different kinds. Second, the measure used by Gutmann & Voigt also incorporates two other aspects of organizational structure of the judiciary: dismissal of judges and transfer of judges. While this certainly allows one to adopt a broader perspective, the importance of case allocation system may easily fade out of sight, being dominated by the two other components. Again, our approach is free from this concern.
That different personal attributes may affect judicial decisions is now well established in the literature. For a brief review of recent studies on that matter see, for example, Garoupa (2018).
§ 26.1. The President of the Tribunal orders that the application or question of law be submitted for consideration, taking into account the order of their receipt. In justified cases, the President of the Tribunal may order examination of the application or question of law in a different order (Polish: Prezes Trybunału zarządza skierowanie wniosku lub pytania prawnego do rozpatrzenia, uwzględniając kolejność ich wpływu. W uzasadnionych wypadkach Prezes Trybunału może zarządzić rozpatrzenie wniosku lub pytania prawnego w innej kolejności.), § 26.2. In the order referred to in paragraph 1, the President of the Tribunal shall also appoint the adjudication panel of the Tribunal, including the chairman and judge-rapporteur. In justified cases, at the request of the chairman of the adjudication panel of the Tribunal, the President of the Tribunal may appoint two judge-rapporteurs (Polish: W zarządzeniu, o którym mowa w ust. 1, Prezes Trybunału wyznacza również skład orzekający Trybunału, w tym przewodniczącego i sędziego sprawozdawcę. W uzasadnionych wypadkach, na wniosek przewodniczącego składu orzekającego Trybunału, Prezes Trybunału może wyznaczyć dwóch sędziów sprawozdawców), § 26.3. The designation referred to in paragraph 2, shall follow the order established on the basis of the alphabetical list of the judges of the Tribunal (Polish: Wyznaczenie, o którym mowa w ust. 2, następuje według kolejności ustalonej na podstawie alfabetycznej listy sędziów Trybunału). Please note that these provisions were valid and stable between 19.11.2006 and 30.08.2015, i.e., throughout the whole period covered by our analysis.
One may think here, for example, about the two following scenarios. On the one hand, the president of the Tribunal may violate the alphabetical rule when an important case is considered, so that it is adjudicated upon by a bench of favorable judges. On the other hand, the president may wait to proceed with the case until there is a chance to assign it for a preferred bench of judges determined by alphabetical order.
A full description of the functioning of the Tribunal is covered in The Constitutional Tribunal Act of August 1st 1997.
While the animosities between PO and PiS were noticeable already after the 2005 elections, after the 2010 Smoleńsk plane disaster that killed the president Lech Kaczyński, the political partition intensified even further.
Initially, we identified 433 cases. 32 of them, however, concerned mainly the reimbursement of costs or case dismissal in other cases adjudicated by the Tribunal and therefore we decided to exclude them from our analysis. The catalog number of these technical cases was the same as that of the original case, and so was the composition of the adjudicating panel.
Please note that in many cases we had more than one judge missing from the list. As a result, even if one assumes that in some of these cases a judge acting as the president/vice-president was omitted, this can explain the departure from the alphabetical rule only partially.
It might be also noted that, according to some commentators, assuming the function of the Tribunal’s president should not constitute any reason for adjudicating upon fewer cases (Fundacja Batorego, 2018).
However, chronic illness of one judge or another has not been mentioned in the annual “Information on significant problems arising from activities and jurisprudence of the Constitutional Tribunal” for any year under our analysis. Additionally, there is no publicly available information about chronic illness or serious medical problems of any constitutional court judge that served during the period of our study. Last but not least, for each judge we checked the dates of all sentences in which he or she was ruling (regardless whether it was a plenary session, five-judge panel or three-judge panel). We could not identify any significant time gaps for any of the judges, except for August, which popped up for all judges and can presumably be explained by the holiday break.
If n + 5 takes the value that is larger than 15, the numbering starts from 1 again. Thanks to this, we can treat panels like {3, 4, 5, 6, 8} and {14, 15, 1, 2, 4} in the same way.
For example, in the panel composed of judges with numbers {2, 3, 4, 5, 8 } the maximum distance between subsequent names is equal to (8 − 5) = 3. Importantly, when making these calculations, we always sort the judges in the way that minimizes our distance measure. For example, while in the panel {1, 2, 3, 4, 13} the maximum distance is (13 − 4) = 9, we use the sorting {13, 1, 2, 3, 4} for which our distance measure is equal to 3 (i.e. the distance between judge 13 and judge 1). Please note that, if anything, this approach underestimates the scale of violating the alphabetical order.
To see this, recall that the number of pairs (subsets of 2 elements) in a set of five elements can be calculated by the binomial coefficient \( \left(\genfrac{}{}{0pt}{}{5}{2}\right)=10\).
Please note that if (n − 3), (n − 2), or (n − 1) take the value of zero, -1 or -2, they refer to the numbers 15, 14, 13, respectively.
More specifically, we can replace judge number z(x) either with judge number n − 4 (n − 1), or with judge number n + 1(n + 4).
In these calculations we do not take into account Judge Kieres who joined the Tribunal in the middle of 2012. Counting Judge Kieres (and Judge Jamróz) as being aligned with PO does not change this portrayal. The relevant ratio, however, is slightly lower and amounts to 1.86.
As in some of the specifications our dependent variable is a count variable (\( \text{p}\text{a}\text{n}\text{e}\text{l}\text{s}\)), we also estimate negative binomial models, which may be considered a generalization of the Poisson regression. As the outcome of negative binomial models is consistent with the outcome shown below (with respect to statistical significance of the variables and the direction of their impact), to save space, we do not report these results in separate tables.
In an alternative specification (not reported), we used a categorical variable capturing four categories like ‘best neighbors’ for judges directly next to each other on the list, ‘close neighbors’ for judges between which there is one gap on the list, ‘neighbors’ for judges between which there are 3 or 4 blank rows on the list and ‘strangers’ for the remaining pairs of judges. Using this version of the distance variable does not change the results.
Following Kantorowicz & Garoupa (2016), we classify as politically sensitive all cases that were brought to the constitutional court by political actors, that is either by the President of the Republic of Poland, the Prime Minister, a group of deputies, a group of senators, the Marshal of the Sejm or the Marshal of the Senate.
Theoretically, since the two judges occupied the same place on the alphabetical list of judges, one potential option is to merge their activity in the Tribunal in the period 2011–2014 and include it in regressions as the performance of one judge. However, then it would not be possible to provide a credible input for variables corresponding to age difference or experience congruence, since the two judges were born in different years and they were appointed to the Tribunal in different years. Excluding the two judges from the analysis is also not a solution as in that case we would have to exclude all the panels in which they adjudicated together, thus artificially affecting the incidence of other pairs of judges sitting on the same panel.
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Acknowledgments
This research is part of a Beethoven project funded by the Polish National Science Centre (NCN, UMO-2016/23/G/HS4/04371) and the Deutsche Forschungsgemeinschaft (DFG, #381589259). The authors would like to thank the two anonymous referees for constructive comments which improved the article. The authors are also grateful to Jerg Gutmann, Anna Janicka, Grzegorz Kula, Anna Lewczuk, Katarzyna Metelska-Szaniawska, Stefan Voigt and Rafał Woźniak and participants of the 38th Annual Conference of the European Association of Law & Economics (EALE), Annual Conference of the International Society of Public Law (ICON-S Mundo), 96th Annual Conference of the Western Economic Association International (WEAI) and the conference of the Faculty of Economic Sciences of the University of Warsaw (WNE UW) for helpful comments on earlier drafts. Jacek Lewkowicz gratefully acknowledges the support of the Foundation for Polish Science (FNP).
The views, thoughts, and opinions exposed in the text belong solely to the authors, and not necessarily to the authors’ employer, organization, committee or other group or individual.
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Fałkowski, J., Lewkowicz, J. In practice or just on paper? Some insights on using alphabetical rule to assign judges to cases. Eur J Law Econ 54, 405–430 (2022). https://doi.org/10.1007/s10657-022-09733-w
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DOI: https://doi.org/10.1007/s10657-022-09733-w