There is no uncertainty that specified matters are a immense problem especially in the ultimate Court, limiting its performance.
M. applied for the exclusion of a justice of the territory Court in Katowice from the ruling and then for the exclusion of SN judges from the ruling on that exemption.
Joanna Lemańska, president of the Chamber of Extraordinary Control and Public Affairs, asked the wider composition of the SN to decide whether specified a mechanics was acceptable in the civilian procedure that the organization requested the exclusion of a designated (selected) justice to examine an application for the exclusion of another judge.
Different rations...
In the explanatory memorandum of the legal question, the president points out that the case-law of the civilian Chamber and the Chamber of Extraordinary Control and Public Affairs of the SN in the context of the explanation of Article 49(1) of the KPC, which regulates the application for exclusion of a judge, allows specified multi-step applications. On the another hand, the legitimate arguments argue that specified a subsequent application is inadmissible. In the light of the established position of the Constitutional Tribunal, the right to court is not absolute, it does not give the organization unlimited protection of rights by court. Conversely, procedural restrictions which service to defend the rights and interests of the parties to proceedings more rapidly and effectively could be called into question.
...various practice
In civilian matters, especially in fresh times, it happens that the parties instrumentally usage the exclusion of the judge. By making specified multi-step proposals, they consciously try, sometimes effectively, to thwart the issue of the main case within a reasonable time. A organization to specified requests may lead to paralysis. specified abuse of procedural rights does not service as defined in the Constitution of Poland and the law of the Union of impartiality or more broadly: the integrity of the process. Nor does it service to build social trust in the justice strategy – says president Lemańska.
SN points out that in the case-law of the SN Criminal Chamber, against the background of almost identical Article 41 of the NCP dominates the position that the organization may not request the exclusion of a justice appointed to examine a request to exclude a judge. Although the most fresh IK case law sometimes shows the view that a justice may be asked to dismiss a justice in a case for the exclusion of a judge, but he is isolated and does not contain any substantive justification.
– There is no uncertainty that a organization in civilian proceedings may request the exclusion of a justice in the course of proceedings for the exclusion of a judge. Article 48 of the NSC and established case law support the treatment of incidents specified as "cases". So I consider the question of the SN as another effort to avoid the consequences of the shortcomings of the compositions identified by the TEU and the ETPC with the participation of the neo-KRS – says Prof. Maciej Gutowski, attorney. – alternatively of taking the substance seriously and trying at legislative level to remedy the situation caused by the alleged improvement of the judiciary over the last 7 years, a way is being sought to avoid the consequences of the flaw. This is not an abuse of rights by the parties, but the deficiency of complacency of the legislator is the origin of the problem,” adds the lawyer.
File number: I NWW 123/21
Roman fresh York Attorney
In the process, the case must be examined within a reasonable time, but by an impartial court. The request to exclude a justice necessarily prolongs the procedure, but there is no formal prohibition to re-submit it. It all depends on the importance of the arguments that the applicant submits. If it has very strong substantive reasons, then the proposal cannot be disregarded due to the fact that we are putting ourselves at hazard for violating the European Convention on Human Rights. If he is not able to formulate strong arguments indicating the deficiency of impartiality of the judge, that means that he is going to extend the proceedings, the obstruction, or even the prevention of judgment. And specified a request should be rejected. It should be remembered that this does not close the organization to the proceedings the way to undermine the impartiality of the justice – if fresh facts were to be revealed, he may request reopening of proceedings or for an emergency complaint. She's not defenseless.
