The Supreme Court’s resolution was issued in response to a legal inquiry submitted by the President of the Court. In December 2011, he presented an extensive analysis of the discrepancies in the construction of the provisions of the Criminal Procedure Code governing the public character of the criminal trial. The differences in interpretation resulted in some courts’ refusing members of the public the right to be present at hearings. At the same time, other judges allowed conducting the proceedings in an open court. This meant that HFHR observers were sometimes denied access to certain types of hearings such as pre-trial detention hearings. “So far, the ambiguous judicial practice has made our work much harder”, says Piotr Kubaszewski, a lawyer of the HFHR’s Legal Intervention Programme.
The Supreme Court judges found that as far as the public nature of court hearings is concerned, the Criminal Procedure Code contains a serious legal loophole. The judges resolved that in no event may that loophole be removed by the application of the currently operating provisions. The Supreme Court pointed out the regulations of the Courts Act, which provide that courts should hear and decide matters in an open court.
The Court broadly defined the term “matter” as encompassing both the key subject-matter of and the incidental issues related to the proceedings. This interpretation should be adopted in all cases of actual or potential interference with the constitutionally protected rights.
The Supreme Court addressed the issue of exceptions from the open court rule. Here, the judges also referred to the Courts Act which says that a hearing or a trial can be closed for the public only if a statute so provides. The judges held that because of the insufficient regulation of the issue, the statutory basis of the exceptions can be derived from, for instance, substantive criminal law, or from the purposive interpretation of other provisions of law. In the justification of the resolution, the Supreme Court Judge Professor Piotr Hoffmański noted that it was hardly conceivable that a wire-tapping order hearing could be held in an open court.
