The rule of tripartition

Violation of the rule of tripartition of power by the Project Originator by abstracting from the competence of the court to assess whether the composition of the court in a given case is properly seated

 Act does not violate the rule of tripartition of power and does not limit the competence of the court to examine the composition of the court.

The regulation of the composition of the court – its size and professionalism – is of constitutional value. According to Article 45 of the Polish Constitution, the right to a court is defined as the right to a ‘competent’ court, i.e. a court acting in a composition consistent with the relevant Acts.

The composition of the court is a category of procedural law and it is regulated in relevant procedural acts.

The term ‘composition of the court’ cannot be considered equivalent to the term ‘status of the judge’. The Composition of the Court determines the procedural basis of the court’s capacity to adjudicate in a particular case and it is subject to assessment and appeal proceedings.

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.

The court is not properly seated if the composition of the court is unknown according to the act or if it is not provided for in the relevant category of cases (judgment of the Supreme Court of 24 August 2005 – WK 17/05, Criminal Law Newsletter 2005,

No. 4, item 1.3. 2, decision of the Supreme Court of 13 October 2010 – IV KK 250/10, OSN Prok. i Pr. 2011, no. 3, item 21, judgment of the Administrative Court in Wrocław of 25 January 2013, II AKa 12/13, OSN Prok. i Pr. 2014, no. 11–12, item 37; judgment of the Supreme Court of 5 July 2012, V KK 57/12, OSN Prok. i Pr. 2012, no. 10, item 13; judgment of the Supreme Court of 19 August 2009, V KK 144/09, KZS 2009,no. 12, item 24; judgment of the Administrative Court in Lublin of 29 September 2009, II AKA 192/09, Legalis; judgment of the Supreme Court of 5 July 2005, WZ 14/05, OSNKW 2005, No. 10, item 99; decision of the Administrative Court in Katowice of 14 July 2004, II AKZ 518/04, OSA 2005, No. 4, item 28; judgment of the Administrative Court in Wrocław of 26 August 2015, II AKA 195/15, Legalis).

Discrepancy between the composition of the adjudicating court and the provisions of law is a prerequisite for nullity of the proceedings (Article 379 of the Code of Civil Procedure). It is also a prerequisite for lodging an appeal.

The system provisions provide for a number of detailed solutions, which influence the final shape of the composition of the court hearing a particular case. This concerns, among others, the delegation of a judge to adjudicate in another court, the appointment of a judge or an additional juror (Articles 47 and 171 of the Act on the Common Court System), or the replacement of a judge by another judge from the same court (Article 45 of the Act on the Common Court System). The importance of a court being properly seated is not merely a theoretical issue, but has a direct bearing on the possibility of challenging a judgment given in the inappropriate composition.

Such an infringement is an absolute prerequisite for appeal (Article 439(1)(2) of the Code of Civil Procedure).

The proper formation of the composition is primarily of law-abiding significance, because – in a broader perspective – it is part of the constitutionally guaranteed right of a citizen to a competent court, including a properly seated and impartial court.