A motion to exclude a judge from the examination of a case, due to an allegation raised about the defective appointment of the judge by the President of the Republic, who acted upon the request of the National Council of the Judiciary P 22/19
On 4 March 2020 at 11.30 a.m., the Constitutional Tribunal publicly delivered its judgment with regard to the question of law referred by the Supreme Court, the Disciplinary Chamber, which concerned a motion to exclude a judge from the examination of a case, due to an allegation raised about the defective appointment of the judge by the President of the Republic, who acted upon the request of the National Council of the Judiciary.
The Constitutional Tribunal adjudicated that Article 41(1) in conjunction with Article 42(1) of the Criminal Procedure Code of 6 June 1997, applied accordingly on the basis of Article 741(1) of the Act of 6 July 1982 on Legal Advisers – insofar as it permits the consideration of a motion to exclude a judge from the examination of a case, due to the defective appointment of the judge by the President of the Republic, who acted upon the request of the National Council of the Judiciary, composed of judges elected in line with the procedure provided for in Article 9a of the Act of 12 May 2011 on the National Council of the Judiciary, is inconsistent with Article 179 in conjunction with Article 144(3)(17) of the Constitution of the Republic of Poland.
The Constitutional Tribunal discontinued the proceedings as to the remainder.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Jakub Stelina.
The court referring the question challenged Article 41(1) of the Criminal Procedure Code of 6 June 1997, which stipulates that: “A judge shall be excluded from the examination of a case if there are circumstances that can give rise to a reasonable doubt as to the judge’s impartiality in a given case”, in conjunction with Article 42(1) of the said Code, which reads as follows: “The exclusion of a judge from the examination of a case shall occur upon the judge’s request, ex officio, or upon the request of a party”, which are applied accordingly on the basis of Article 741(1) of the Act of 6 July 1982 on Legal Advisers. Article 41(1) of the Criminal Procedure Code was challenged within the meaning indicated by the court: “insofar as construed in the way that what should be subject to consideration is a motion to exclude a judge from the examination of a case, due to an allegation raised about the defective appointment of the judge by the President of the Republic, who acted upon the request of the National Council of the Judiciary, composed of judges elected in line with the procedure provided for in Article 9a of the Act of 12 May 2011 on the National Council of the Judiciary”.
The Constitutional Tribunal stated that, in accordance with Article 179 of the Constitution, “judges are appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary, whereas Article 144(3)(17) of the Constitution provides that the Polish President’s competence to appoint judges is, in its nature, a prerogative of the head of state, which entails that the act of appointment to a judicial office does not require, for its validity, the signature of the Prime Minister. Such a procedure for appointing judges implies the independence of the President of the Republic in the appointing process, and also provides protection to the judiciary against any potential influence and interference by the legislature.
The Tribunal held that, in the light of Article 179 in conjunction with Article 144(3)(17) of the Constitution, there is no possibility of appointing a judge by means of a merely symbolic act which has no actual effects. The appointment of a judge is also tantamount to granting judicial powers to that person. Thus, one may not claim that a given person has been appointed to a judicial office and simultaneously assert that the said person may not exercise judicial powers.
The prerogative of the Polish President within the scope of appointing judges enhances the independence of judges. The Constitution does not require that the Polish President’s act of appointment was validated by the signature of the Prime Minister. In Article 179, the Constitution indicates that such appointment is first requested by the National Council of the Judiciary. This in a way guarantees that the Polish President is presented with candidates who meet statutory prerequisites. Therefore, the Tribunal pointed out that Article 179 of the Constitution constitutes a complete norm, as regards specifying the President’s powers within the scope of appointing judges, since all the indispensable elements of the appointment procedure are regulated therein. The Tribunal deemed that since it follows from the text of the Constitution and the previous rulings of the Tribunal that the Polish President’s powers to appoint judges may not, in any way, be restricted by statute, then this also implies that the said powers may not be limited by any acts of applying law. Acts of applying law, resulting from the legislator’s actions, are general and abstract in character and are universally applied. Hence, they apply, on equal terms, to every President of Poland and to every judge appointed by the said President. Consequently, since the Constitution does not permit such additional assessment, it may not be derived from the text of the Constitution, by means of the rules of interpretation known to the Tribunal, that judges may be assessed by means of acts of applying law, i.e. by specific individualised acts. It is hard to conceive of any criminal, civil or administrative procedure in which a court, and a specific panel of judges, could assess the correctness of the process of appointing other judges.
As the Tribunal has already emphasised above, in the Polish legal system, there is no legal institution which permits verification or review of the validity of appointing judges by the Polish President. The recognition that the prerequisites for a motion to exclude a judge filed in accordance with Article 41(1) in conjunction with Article 42(1) of the Criminal Procedure Code could also include the circumstances of the defective appointment of a judge would be tantamount to entrusting common courts – in this context, in criminal proceedings – with the power to challenge judicial appointments the terms of which are strictly specified in the Constitution.
The composition of the adjudicating bench of the Constitutional Tribunal in the present case: President of the Constitutional Tribunal, Judge Julia Przyłębska – the Presiding Judge and 2nd Judge Rapporteur; Judge Jakub Stelina – the 2nd Judge Rapporteur; Judge Zbigniew Jędrzejewski; Judge Justyn Piskorski; Judge Michał Warciński.