Grounds for excluding the justice from participation in the case

Description of the facts

Defender of the convict R.W. requested that the justice be excluded from the examination due to the flaw in the procedure for appointing a justice of the ultimate Court. Following the examination of the application, the defendant's defence of the SN found the application valid and excluded the SSN from participating in the circumstantial case.

Reasons for SN

In its resolution of 23.1.2020, BSA I-4110-1/20, Legalis, it was clearly stated that ‘the inappropriate cast of the court within the meaning of Article 439(1)(2) of the CRS besides takes place erstwhile a individual appointed to the office of a ultimate Court justice takes part in the composition of the court at the request of the National Judicial Council established under the provisions of the 2017 Act amending the National Judicial Council Act and certain another laws’. The ultimate Court argued in this ruling that “the appointment to the ultimate Court is always the first appointment to the office in that court, and so requires the fulfilment of circumstantial conditions and procedures in which the competence of the candidate can indeed be verified, including from the point of view of its characteristics applicable to the preservation of independency and impartiality. The deficiency of specified verification and the deficiency of transparency of the appointment process, which was characterized by the competitions, make a state of uncertainty and give emergence to suspicions of political motivation for nomination decisions. This excludes the fulfilment of nonsubjective conditions for the perception of specified nominees as impartial and independent. Especially as it concerns the appointment to the courts of the last instance, having competence to abrogate final judicial decisions and to make a binding explanation of the law, the rulings of which are no longer subject to effective review to verify whether the conditions of impartiality and independency of the court, consisting of persons appointed to service as a justice of the ultimate Court, are fulfilled in a defective procedure. For this reason, maintaining the highest standards in the appointment process is decisive to measure whether the individual who has passed the procedure guarantees the independency and impartiality of the ultimate Court erstwhile it decides in the composition of that court.’ Therefore, there is no request for the alleged independency test referred to in the abovementioned resolution to be carried out in relation to those appointed as judges of the ultimate Court.

In accordance with Article 41(1) of the NCP, a justice shall be excluded if there is simply a condition which might rise doubts as to his impartiality in the case. The SN in the composition of the present exemption request full shares the explanation of that provision, adopted by the SN in its order of 13.10.2020, II KO 30/21. The SN indicated that the specified fact that a peculiar individual took part in the nomination procedure conducted before the KRS in a constitutionally flawed composition, formed under the Law of 8.12.2017 on the amendment of the Act on the National Judicial Council and certain another laws (Journal of Laws of 2018 item 3; hereinafter: ZmKrRadSądU18), is not an automatic reason to conclude that there is reasonable uncertainty about the nonsubjective and subjective impartiality of specified individual in examining cases. However, that condition must be taken into account to a greater extent, in peculiar in view of the function of Article 41(1) of the NCP, as the basis for protecting the party's right to an independent and impartial court. The NS stressed that ‘Article 41(1) of the NCP should be interpreted in specified a way as to guarantee effective protection of the party's right to a peculiar case by an independent and impartial court. This means that this explanation should besides let to control whether in a peculiar case there is simply a breach of the standard of independency and impartiality, guaranteed by Article 45(1) of the Constitution of the Republic of Poland, Article 47 of the NRP and Article 6(1) of the ECHR. The case of an SN examining an application pursuant to Article 41(1) of the NCP is the exclusion of a justice not only if a case which could give emergence to reasonable uncertainty as to his impartiality, but besides if the ruling in that case could lead to a much more serious misconduct, i.e. a breach of the standard under Article 6(1) of the ECHR and the designation that specified a ruling composition does not constitute an independent and impartial court established by the Act, which could consequence not only in the State's liability, but besides in a request for a resumption of that phase of the procedure (Article 540(3) of the NCP)’.

According to the judgement of the ECHR of 22.7.2021, Reczkowicz v Poland, 43447/19, Legalis, interpreting the standard of ‘independent and impartial court established by the Act’ within the meaning of Article 6(1) ECHR, the participation in the process of appointing judges in Poland of specified an authority as the KRS, in a 2017 fresh (as a consequence of which that authority is not independent of the executive and legislative authority) makes the composition of the judge, whose associate is the individual so appointed as a judge, not a circumstantial case of independent and impartial court established by the Act within the meaning of Article 6(1) ECHR. In view of the stated position of the ECHR, and examining under Article 41(1) of the NCP the request to exclude a judge, The ultimate Court must take account of the fact that a judgement given by the composition of a court involving persons appointed to service as a justice in the nomination procedure conducted before the National Court registry on the basis of the ZmKrRadU18 will be subject to a defect treated by the ETPCz as an infringement of Article 6(1) of the ECHR, and, under Polish law, as an absolute appellant within the meaning of Article 439(1)(2) of the NCP. It should be stressed that the standard of the right to court resulting from Article 45(1) of the Constitution and Article 6(1) of the ECHR is full applicable to the cassation proceedings, provided that specified proceedings are provided for in a circumstantial category of cases (cf. order of the ultimate Court of 16 September 2021, I KZ 29/21, Legalis, and the argument contained therein, and M.A. Nowicki, Around the European Convention. Comments to the European Convention for the Protection of Human Rights, p. 502 and cited ECHR judgments; P. Hofmanski, A. Sparrow in: L. Garlicki, Convention for the Protection of Human Rights and Fundamental Freedoms, Commentary on Articles 1-8, Vol. I, 2010, p. 253.

In any event, it must be borne in head that the justice R.W. he was originally appointed to the position of justice in the Disciplinary Chamber, which was an administratively affiliated body with the SN, but she herself did not have the position of a constitutional court (cf. Resolution of the SN of 23.1.2020, BSA I-4110-1/20, Legalis; Resolution of the SN of 2.6.2022, I KZP 2/22, Legalis). The adoption of judicial proceedings in the ultimate Court – the Criminal Chamber took place without complying with the requirements laid down in Article 179 of the Constitution of the Republic of Poland, and thus without following the procedure provided for for the application for a position in a court provided for in the Constitution of the Republic of Poland. The transition of persons ruling in the Disciplinary Chamber to the Chambers of the SN was due to the regulations adopted by the majority of Parliament in the Act of 9.6.2022 amending the ultimate Court Act and any another laws (Journal of Laws of 2022 item 1259; hereinafter: ZmSNU22). Pursuant to Article 10 ZmSNU22 of that Act, he was the First president of the ultimate Court who transferred the rulings to 1 of the Chambers of the ultimate Court. This is besides the way in which the judicial proceedings in the Criminal Chamber of the SN are carried out, justifying the message that the organization and systemic guarantees for the impartiality and independency of the court established with the participation of specified a individual in the case are not respected.