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Questioning the status of a judge is unconstitutional

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Inadmissibility of questioning, in the course of the activity of courts, the empowerment of courts, tribunals and constitutional organs and the appointment of a judge

  1. The concept of “composition of the court” cannot be equated with the concept of “judge status”. The composition of the Court determines the procedural grounds for the court’s ability to adjudicate in a specific case and is subject to appraisal and instance control. The status of a judge determines the systemic investiture of a person appointed by the President of the Republic of Poland to perform judicial activities.

  • Improper composition of the court occurs when the court adjudicated in a composition unknown to the act or not provided for a given category of cases (the judgment of the Supreme Court of August 24, 2005 – WK 17/05, Criminal Law Bulletin 2005, Nr 4, item 1.3. 2, the decision of the Supreme Court of 13 October 2010 – IV KK 250/10, OSN Prok. i Pr. 2011, nr 3, item 21, judgment of the Wrocław Court of Appeal of 25 January 2013, II AKa 12/13, OSN Prok. i Pr. 2014, nr 11-12, item 37; the judgment of the Supreme Court of 5 July 2012, V KK 57/12, OSN Prok. i Pr. 2012, nr 10, item 13, the judgment of the Supreme Court of 19 August 2009, V KK 144/09, KZS 2009, Nr 12, item 24, judgment of the Lublin Court of Appeal of September 29, 2009, II AKA 192/09, Legalis, decision of the Supreme Court of 5 July 2005, WZ 14/05, OSNKW 2005, Nr 10, item 99, decision of the Katowice Court of Appeal of July 14, 2004, II AKZ 518/04, OSA 2005, Nr 4, item 28, judgment of the Wrocław Court of Appeal of 26 August 2015, II AKA 195/15, Legalis).

 

  • If the composition of the adjudicating court is contrary to the provisions of the law, it constitutes a premiss for the nullity of the proceedings, which the court takes into account ex officio at every stage of the proceedings. It may also constitute a foundation for ordinary and extraordinary appeal.

 

  1. The systemic regulations provide for many detailed solutions that affect the final formation of the adjudicating panel in a particular case. This applies, inter alia, to delegating a judge to adjudicate in another court (article 77 of the Act of 27 July 2001 Law on Common Courts Organisation), appointment of additional judge or juror (article 47 and 171 of the Act of 27 July 2001 Law on Common Courts Organisation), or the replacement of a judge by a judge of the same court (article 45 of the Act of 27 July 2001 Law on Common Courts Organisation). The importance of the correct composition of the court is not only a theoretical issue, but has a direct impact on the particular case as it can be used to challenge the judgment on the basis of the wrong composition of the court.

 

  1. Above all, the proper formation of the composition of the court is important for the rule of law, because – in a broader perspective – it is part of the constitutional guarantee of the citizen’s right to a competent court, including a properly formed and impartial court (see eg P. Wiliński, The criminal process in the light of the constitution, Warsaw 2011, pp. 122-124 and the jurisprudence given there; see also A. Kubiak, The constitutional principle of the right to a fair trial in the light of the jurisprudence of the Constitutional Tribunal, Łódź 2006, pp. 124 et seq., W. Jasiński, Standard of an independent court established by law in the jurisprudence of the European Court of Human Rights, (in 🙂 J. Jaskiernia (ed.), Council of Europe and democratic changes in the countries of Central and Eastern Europe in 1989–2009, Toruń 2010, pp. 254 et seq.).

 

Resolution of 23 January 2020 of the three combined Chambers of the Supreme Court

Constitutional Tribunal is the only authority in Poland which may decide on the compliance of the law with the Polish Constitution. In its judgment of 20 April 2020, this Tribunal found that the Supreme Court’s resolution of 23 January 2020 is unconstitutional. It was unequivocally stated that the removal of a judge from adjudication stated in the resolution is unknown to the legal system, as it undermines the act of appointment of a judge by the President of the Republic of Poland.

Since the Supreme Court adopted the resolution of 23 January 2020 that questioned the status of judges, there is no doubt that this resolution is invalid by operation of law. It was issued in blatant violation of applicable provisions, including Art. 179, art. 180 sec. 1 and art. 10 of the Polish Constitution. These provisions clearly stipulate that judges are appointed by the President of the Republic of Poland, at the request of the National Council of the Judiciary, for an indefinite period of time. Judges are irremovable, and the political system of the Republic of Poland is based on the separation and balance of the legislative, executive and judicial powers.

Therefore, no court is entitled to examine, let alone question judicial appointments or laws regulating the status of judges and the method of selecting candidates. For that reason, the Supreme Court cannot interfere with the competences of the National Council of the Judiciary, the President of the Republic of Poland or the Sejm (the lower house of the parliament of Poland).

The president’s prerogative is not subject to any control. Even more so, it cannot be the subject of a limitation or any narrowing interpretation made within the basic normative act. In its ruling of 2 June 2020, the Constitutional Tribunal indicated that judges are appointed by the President exercising his prerogative. From its essence, this prerogative means that such appointment does not require any prior decision or approval by another body and is not subject to any further control. The legal system did not provide for a procedure that would allow control of judicial appointments. The only guarantee that the President will not appoint a person who does not meet the conditions for the position of judge is the National Council of the Judiciary, which submits a motion to him in this matter.

 

Nature of the appointment of judges as the constitutional prerogative of the President of the Republic of Poland

 

    1. Pursuant to Article 179 of the Polish Constitution, “Judges are appointed by the President of the Republic of Poland on the motion of the National Council of the Judiciary for an indefinite period of time”. The appointment of judges consists of two stages: stage I – the motion of the National Council of the Judiciary, whose manner of formulation and procedure of issue are determined in the special Act and stage II – the appointment of a judge by the President of the Republic of Poland. The appointment is an independent act of an institutional and constitutional nature.
    2. The competence to appoint judges constitutes the prerogative of the President of the Republic of Poland (Article 144(3)(17) of the Polish Constitution). A detailed description of the prerogative concerning the appointment of judges is included in Article 179 of the Polish Constitution. The Constitution makes the exercise thereof subject to the submission by the National Council of the Judiciary of an appropriate motion (judgement of the Constitutional Tribunal of 8 May 2012, K 7/10, OTK ZU no. 48/5A/2012).
    3. The president’s competence to appoint judges is an essential element of the mechanism of balancing and limiting the judiciary. (Judgement of the Polish Supreme Administrative Court of 9 October 2012, case ref. no. I OSK 1883/12). This competence is of a ruling nature and constitutes the manifestation of interaction between authorities and, more precisely, manifestation of balancing competences of the judiciary by the executive to which the President belongs (K. Weitz, Comment on Article 179 of the Constitution of the Republic of Poland, in: M. Safian, L. Bosek (ed.), Constitution of the Republic of Poland, Comment, vol. II, pp. 1045–1046, J. Sułkowski, President’s rights to appoint judges 2008, no. 4, p. 54).
    4. The “separation” and distinction of the judiciary refer primarily to the implementation of its basic judicial function. In the scope of the administration of justice, the executive and legislative authorities are not allowed to interfere in actions of courts and tribunals (Judgement of the Constitutional Tribunal of 8 November 2016, case ref. no. P 126/15, 89/A/2016).
    5. The creation of the composition of the third pillar of power is included in the mechanism of balancing competences within the principle of the separation of powers. An essential element of this process is the competence of the President of the Republic of Poland (Article 179 of the Polish Constitution). The President’s institutional role in this scope is of a basic meaning for the assessment of the legal character and importance of the appointment to a judge’s position (Kpt 1/08); it also constitutes an essential guarantee of the constitutional standard for the right to trial (Decision of the Polish Supreme Administrative Court of 9 October 2012, case ref. no. I OSK 1883/12).

  • The act of the appointment determines the status of a judge. Pursuant to the case law of the Constitutional Tribunal, the competence in the scope of the appointment of judges is, in the light of Article 144(3)(17) of the Polish Constitution, treated as a personal right (prerogative) of the President (sphere of their exclusive competence and liability) as well as the institutional role of the President as the supreme representative of the Republic of Poland, set out in Article 126(1) of the Polish Constitution. [decision Kpt 1/08; judgement of the Constitutional Tribunal of 5 June 2012, K 18/09, OTK ZU no. 63/6A/2012].

 

    1. Specifying the manner of procedure in the scope of the implementation of each stage indicated in Article 179 of the Polish Constitution, the Act may not affect directly the competence of the President in the scope of the appointment of judges. Article 179 of the Polish Constitution constitutes an independent and sufficient (complete) legal basis for exercising the prerogative as the official act of the President. (decision of the Constitutional Tribunal of 19 June 2012, SK 37/08, OTK-A 2012/6/69; see also decisions of the Polish Supreme Administrative Court of 9 October 2012, I OSK 1874/12, I OSK 1875/12; decision of the Polish Supreme Administrative Court of 7 December 2017, I OSK 858/17).

  • The exercise by the President of their competence “may be specified in acts, however provided that the principle of the superiority of the Constitution expressed in Article 8 of the Polish Constitution is respected”. The Tribunal considered “the essence of the president’s prerogative in the scope of the appointment of judges” (K 18/09) to be the absolute framework of legal regulations governing the procedure of the appointment of judges by the President.
  • In the light of the existing case law of the Constitutional Tribunal, it should be considered that attempts to undermine the prerogative of the President of the Republic of Poland to appoint judges, either in the form of creating a kind of judicial procedure under which it would be removed due to an alleged defective nature of the procedure leading to the appointment, or under a normative act of a sub-constitutional rank, would constitute a violation of norms concerning not only the appointment of a judge, i.e. Article 144(3)(17) and Article 179 of the Polish Constitution, but also the constitutional principle of the tenure of judges referred to in Article 180(1) of the Polish Constitution. These norms co-create a coherent and complete mechanism of the guarantee of the judicial independence. Also for this reason the legislation does not allow or provide for “verification” mechanisms of the appointment of judges.