The exclusion of a judge from the examination of a case due to the circumstances of his/her appointment; the Polish President’s announcement about judicial vacancies in the Supreme Court; adjudication on the status of a judge by the Supreme Court P 10/19
Ref. No. P 10/19
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 23 February 2022
The Constitutional Tribunal, composed of:
Zbigniew Jędrzejewski – Presiding Judge
Mariusz Muszyński – Judge Rapporteur
Justyn Piskorski
Jakub Stelina
Andrzej Zielonacki,
having considered, at a sitting in camera on 23 February 2022 – in accordance with Article 92(1)(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. of 2019, item 2393) – the question of law referred by the Supreme Court of the Republic of Poland as to:
1) whether Article 49 of the Civil Procedure Code of 17 November 1964 (Journal of Laws – Dz. U. of 2018 item 1360, as amended) – insofar as it permits a request for the exclusion of a judge from the examination of a case if s/he was appointed by the President of the Republic upon the motion of the National Council of the Judiciary, composed of judges appointed in the manner provided for in Article 9a of the Act of 12 May 2011 on the National Council of the Judiciary, as amended by the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts (Journal of Laws – Dz. U. of 2018 item 3) – is consistent with Article 179 in conjunction with Article 144(3)(17) of the Constitution of the Republic of Poland;
2) whether Article 31(1) of the Supreme Court Act of 8 December 2017 (Journal of Laws – Dz. U. of 2018, item 5, as amended) – insofar as the Polish President’s announcement about judicial vacancies in the Supreme Court constitutes an official act which does not require, for its validity, the signature of the Prime Minister – is consistent with Article 144(2) as well as Article 144(3)(17) of the Constitution;
3) whether Article 1 in conjunction with Article 82 and Article 86, as well as Article 87 and Article 88 of the Supreme Court Act of 8 December 2017 – insofar as it constitutes the normative basis for the Supreme Court to adjudicate on:
a) the judicial status of a person appointed to hold the office of a judge, including a judge of the Supreme Court;
b) the effectiveness of the court’s procedural steps taken with the involvement of the person in question; as well as
c) active and passive electoral rights in elections to the organs of the court, including the said person’s legitimacy to perform his/her duties within that capacity, and in the case of the Supreme Court – also as regards the organs of the Court’s divisions;
– is consistent with Article 2 in conjunction with Article 45(1) of the Constitution, and with Article 10, Article 144(3)(17) as well as Article 183(1) and (2) of the Constitution;
adjudicates as follows:
1. Article 49(1) of the Civil Procedure Code of 17 November 1964 (Journal of Laws – Dz. U. of 2021 item 1805, as amended) – insofar as any circumstance concerning the procedure for appointing a person to the office of judge, upon the motion of the National Council of the Judiciary, by the President of the Republic of Poland is to be regarded as a possible reason for justified reservations as to the said judge’s impartiality in a given case – is inconsistent with:
a) Article 45(1) of the Constitution of the Republic of Poland;
b) Article 179 in conjunction with Article 144(3)(17) of the Constitution.
2. Article 31(1) of the Supreme Court Act of 8 December 2017 (Journal of Laws – Dz. U. of 2021 item 1904) in conjunction with Article 49(1) of the Civil Procedure Code of 17 November 1964 – insofar as it deems that the following circumstance may be a prerequisite for excluding a judge from the examination of a case: the Polish President’s announcement about judicial vacancies in the Supreme Court, which commences the process of nominating judges, constitutes an act that requires, for its validity, the signature of the Prime Minister (i.e. the countersignature), and the lack thereof raises reservations as to the impartiality of the judge appointed to hold the office in the nomination procedure commenced by the said announcement – is inconsistent with Article 45(1) in conjunction with Article 144(2) and Article 144(3)(17) of the Constitution.
3. Article 1 in conjunction with Article 82(1) and Article 86, Article 87, Article 88 of the Supreme Court Act of 8 December 2017 – insofar as it constitutes a normative basis for adjudication by the Supreme Court on the status of the person appointed to hold the office of a judge, including a judge of the Supreme Court, and the ensuing competence of the judge, as well as the effectiveness of procedural steps taken with the involvement of the said person – is inconsistent with Article 2 in conjunction with Article 10, Article 144(3)(17) and Article 183(1) and (2) of the Constitution.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Zbigniew Jędrzejewski
Mariusz Muszyński
Justyn Piskorski
Jakub Stelina (dissenting opinion)
Andrzej Zielonacki