Closed capitals of the empire of law. The importance of openness of judicial proceedings for social legitimacy of judicial authority

The article focuses on the openness of judicial proceedings, in particular the openness of the trial, considered as an important element of the constitutional right to a trial, the requirement of procedural fairness and the condition for maintaining the social legitimacy of the judiciary. The immediate context for the considerations is determined by the changes introduced by the Act of May 28, 2021 amending the Act – the Polish Code of Civil Procedure and certain other acts, making it possible to limit the openness of court proceedings in relation to the occurrence of an epidemiological emergency. The author draws the attention to transformations in the constitutional position and ways of perceiving the legitimacy of courts in modern constitutional democracies. The increasing role of courts in settling major political disputes, resolving social conflicts, controlling governmental authorities and enabling citizens to hold representatives of the authorities accountable for their decisions renders participation in judicial proceedings one of the fundamental democratic activities nowadays. The author also indicates that the trial (as a fundamental form of communication between judges and citizens and a special phase of proceedings allowing the court to deeply examine the facts of the case and to learn the prevailing understanding among citizens of the values and principles on which the legal order is based) is a key measure to achieve the principles of procedural justice during the course of specific proceedings and to establish trust in the third power before the public. Openness of judicial proceedings, especially the trial, is a condition for the courts to maintain a reflexive attitude in the process of ruling and thus to deepen the social legitimacy of the judiciary based on trust. 

The article focuses on the openness of judicial proceedings, in particular the openness of the trial, considered as an important element of the constitutional right to a trial, the requirement of procedural fairness and the condition for maintaining the social legitimacy of the judiciary. The immediate context for the considerations is determined by the changes introduced by the Act of May 28, 2021 amending the Act – the Polish Code of Civil Procedure and certain other acts, making it possible to limit the openness of court proceedings in relation to the occurrence of an epidemiological emergency. The author draws the attention to transformations in the constitutional position and ways of perceiving the legitimacy of courts in modern constitutional democracies. The increasing role of courts in settling major political disputes, resolving social conflicts, controlling governmental authorities and enabling citizens to hold representatives of the authorities accountable for their decisions renders participation in judicial proceedings one of the fundamental democratic activities nowadays. The author also indicates that the trial (as a fundamental form of communication between judges and citizens and a special phase of proceedings allowing the court to deeply examine the facts of the case and to learn the prevailing understanding among citizens of the values and principles on which the legal order is based) is a key measure to achieve the principles of procedural justice during the course of specific proceedings and to establish trust in the third power before the public. Openness of judicial proceedings, especially the trial, is a condition for the courts to maintain a reflexive attitude in the process of ruling and thus to deepen the social legitimacy of the judiciary based on trust.