Poland / Supreme Court / II KK 483/24

Key facts of the case:

J.B. was charged with the criminal offense of causing damage to business transactions under Article 296(3) of the Penal Code. On 2 March 2022, the first-instance court  found J.B. guilty and sentenced them to 2 years' imprisonment, conditionally suspending execution of the sentence for a probationary period of five years. The court further imposed an obligation to repair the damage in part by paying 2,000,000PLN . On 29 November 2022, in response to an appeal by defence counsel, the second instance court upheld the verdict. On 29 November 2023, the Supreme Court quashed the appealed judgment pursuant to Article 439(1)(2) of the Code of Criminal Procedure and referred the case to the second-instance court for re-examination. On 24 March 2024, the second-instance court upheld the appealed judgment. The defence counsel filed a cassation appeal before the Supreme Court.

The defence counsel contested the judgment of the court of appeal on grounds related to infringements of criminal procedure law affecting the content of the decision (under Art. 439(1)(2) Code of Criminal Procedure), and having an impact on and affecting the content of the decision (under Art. 439(1)(9) in conjunction with Art. 14(1) Code of Criminal Procedure and Art. 433(2) together with Art. 437(1) Code of Criminal Procedure). The defence counsel complained about the composition of the court of appeal which resulted in the lack of an independent and impartial court, due to defective appointment of the judge adjudicating the case, as well as the latter’s strong connections with the executive power, as well as his activity as a disciplinary ombudsman.

Key legal question raised by the court:

The Supreme Court had to assess whether defects in the appointment process of a judge constituted undue composition of that court to such a degree as to a violate a party's right to an independent and impartial court established by law, guaranteed among others by Article 47 of the Charter of Fundamental Rights.

Outcome of the case:

The Supreme Court recalled its well-established case law regarding the requisite threshold for determining a finding of improper composition of the court within the meaning of Article 439(1) of the Code of Criminal Procedure. Namely, such improper composition occurs when the composition of the court includes a person appointed to the office of a judge in a regular court or military court at the request of the National Council of the Judiciary formed in accordance with the procedure set out in the provisions of the Act of 8 December 2017 on amendments to the Act on the National Council of the Judiciary and certain other acts, if the defectiveness of the appointment process leads, in specific circumstances, to a violation of the standard of independence and impartiality within the meaning of Article 45(1) of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Supreme Court noted the criteria already set forth by the CJEU and the ECtHR regarding determination of when defects in the nomination process of a particular judge will lead to a finding that the composition of the court with the participation of that judge  did not constitute a tribunal established by law.

In assessing the grounds of appeal presented by the defence, namely the defective manner of appointment and undue influence of the executive on the judge of the court of appeal, the Supreme Court also considered the judge's attitude towards the changes made by the then legislative and executive authorities since 2017, as well as his interactions with the executive power since that time. The Supreme Court held that this demonstrated undue influence of the executive power on the judge, in addition to the defective manner of his appointment, constituted justified doubt as to his impartiality which violated Article 439(1) of the Code of Criminal Procedure. The Supreme Court therefore sent the case back to the court of appeal for reconsideration.