The exclusion of a Supreme Court judge from the examination of a case P 13/19
On 2 June 2020 at 11.00 a.m., the Constitutional Tribunal publicly delivered its judgment with regard to the question of law referred by the Supreme Court, 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 Tribunal adjudicated that: Article 49(1) of the Civil Procedure Code of 17 November 1964 – insofar as it permits the consideration of 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 – is inconsistent with Article 179 of the Constitution of the Republic of Poland.
The Constitutional Tribunal discontinued the proceedings as to the remainder.
The ruling was unanimous.
The court referring the question of law challenged Article 49 of the Civil Procedure Code, insofar as a court considers 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. Article 49 of the Civil Procedure Code stipulates as follows:
“§ 1. Irrespective of the grounds set out in Art. 48, the court shall exclude a judge from the examination of a case at the judge’s own request or at the request of a party, if there are circumstances that might raise reasonable doubts as to the impartiality of the judge in that particular case.
§ 2. The circumstances referred to in § 1 do not refer to the judge expressing an opinion on the law and facts when explaining judicial activities to the parties or when encouraging them to reach a settlement.”. The question of law was referred to the Tribunal prior to the addition of §2 to Article 49 of the Act of 4 July 2019 amending the Civil Procedure Code and certain other acts, and consequently the Tribunal limited the scope of the challenged provision to Article 49(1) of the Civil Procedure Code.
The Tribunal emphasised that judges are appointed by the President of the Republic of Poland as a result of the President’s exercise of his/her prerogative. The said prerogative – which follows from its essence – means that such an act of appointment requires no prior decision or approval by another authority; neither does it require any subsequent review. The constitution-maker has not provided for a procedure that would make it possible to review the appointment of judges. The only guarantor to ensure that the President does not appoint a person who does not meet requirements for a judicial office is the National Council of the Judiciary, which submits requests within this scope.
The use of the procedure set forth in Article 49(1) of the Civil Procedure Code – which is meant for filing motions 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 – would entail using the legal measure intended to prevent the lack of impartiality on the part of a judge in a specific case not to evaluate the risk of such impartiality, but to assess the presidential prerogative to appoint the judge.
For the above reasons, the Tribunal ruled that Article 49(1) of the Civil Procedure Code – insofar as it permits the consideration of 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 – is inconsistent with Article 179 of the Constitution of the Republic of Poland.
The composition of the adjudicating bench of the Constitutional Tribunal in the present case: Judge Michał Warciński – Presiding Judge; President of the Constitutional Tribunal, Judge Julia Przyłębska – Judge Rapporteur; Judge Stanisław Piotrowicz; Judge Bartłomiej Sochański; Judge Rafał Wojciechowski.