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 vacancies in the Supreme Court; adjudication on the status of a judge by the Supreme Court P 10/19
I. On 23 February 2022, the Constitutional Tribunal – composed of Zbigniew Jędrzejewski (Presiding Judge), Mariusz Muszyński (Judge Rapporteur), Justyn Piskorski, Jakub Stelina and Andrzej Zielonacki – adjudicated that:
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: Article 45(1) of the Constitution of the Republic of Poland as well as 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.
As to the remainder, the Tribunal discontinued the proceedings. The ruling was adopted by a majority vote. There was one dissenting opinion, filed by Jakub Stelina.
II. The question of law in the present case was submitted by the Supreme Court, the adjudicating bench of the Extraordinary Review and Public Affairs Chamber.
The following question of law was submitted:
1) whether Article 49 of the Civil Procedure Code of 17 November 1964 (Journal of Laws – Dz. U. of 2018 item 1360, as amended; hereinafter: the Civil Procedure Code) – 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 (Journal of Laws – Dz. U. of 2016 item 976, as amended; hereinafter: the Act 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; hereinafter: the Amending Act) – 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; hereinafter: the Supreme Court Act) – 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) Article 1 in conjunction with Article 82 and Article 86, Article 87, Article 88 of the Supreme Court Act – insofar as it constitutes a normative basis for the Supreme Court’s determination of:
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.
III. The Tribunal stated that:
With regard to the first allegation, it ought to be stated that the infringement of Article 179 in conjunction with Article 144(3)(17) of the Constitution by the challenged norm derived from Article 49 of the Civil Procedure Code consists in the fact that the said norm – by introducing a prerequisite for deeming a judge to be partial, where the prerequisite has no basis in the legal system – creates a legal institution for reviewing the process of appointing judges.
This is inconsistent with the Constitution, as the appointment of judges constitutes a prerogative of the President of the Republic; such a prerogative may not be verified in the light of statutory provisions (and to be more precise: on the basis of provisions that do not arise from the Constitution).
As regards the second allegation, the challenged norm should be deemed to be inconsistent with Article 45(1) in conjunction with Article 144(2) and Article 144(3)(17) of the Constitution – insofar as it introduces the inadmissible understanding of a prerequisite for impartiality which falls outside the right of the court’s examination of a case, as well as – in violation of Article 45(1) of the Constitution – it extends the scope of assessing the attribute of the court’s impartiality to include circumstances concerning the President’s activities which are not related to the realisation of the right to a fair court procedure, and it implies an unconstitutional assumption that the said activity is defective due to the lack of the countersignature of the Prime Minister.
As far as the third allegation is concerned, the challenged norm infringes Article 2 in conjunction with Article 10, Article 144(3)(17) as well as Article 183(1) and (2) of the Constitution, by:
1) introducing the presumption of the Supreme Court’s competence to review the status of the person appointed to the office of judge and what ensues from that status is the effectiveness of the action taken by the said person despite the prohibition against the competence arising from Article 2 of the Constitution and with the infringement of the legal institution aimed at assessing the impartiality of a judge in the context of a particular case;
2) infringing the principle of the separation and balance of powers (Art. 10 of the Constitution), for it permits shaping legal norms concerning the Supreme Court’s competence in the course of the Supreme Court’s determination of legal issues, whereas the Constitution has provided for that competence to be only within the exclusive remit of the legislator (Art. 183(1)-(2) as well as Art. 176(2) of the Constitution);
3) permitting the Supreme Court to assess and decide who is a judge, whereas in accordance with Article 179 and Article 144(3)(17) of the Constitution, the appointment of judges is a prerogative of the President of the Republic.
IV. As stressed by the Tribunal, if the challenged provisions were to be deemed constitutional, this would not only bring about negative consequences for the constitutional order of the state, but it would also constitute a violation of the constitutional foundations of the state’s legal order.
As a result, this could lead – in the course of the examination of a judge – to the extensive review of the status of a judge in cases pending before courts, and in particular, for instance, it would permit undermining the appointment of the following three groups of judges:
• the first group comprises the judges appointed by the authorities (the Council of the State) before the enactment of the amendments of April 1989 to the Constitution of the People’s Republic of Poland;
• the second group comprises the judges appointed under the rule of the 1997 Constitution, although the legal provisions applied were special in character, i.e. the judges appointed by the Marshal of the Sejm;
• the third group comprises judges whose appointment procedure was commenced by the National Council of the Judiciary, established on the basis of the Act on the National Council of the Judiciary, which were deemed to be partially unconstitutional by the judgment of 20 June 2017 issued by the Constitutional Tribunal (ref. no. K 5/17, OTK ZU A/2017, item 48).
This would result in a multi-faceted chaos in the judicial system.