Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The Bydgoszcz District Court, in a judgment of 2020, awarded to B. L. a certain amount of money as retirement allowance from the defendant Cooperative M. in W. The defendant appealed to the Bydgoszcz Regional Court which dismissed the appeal, in a judgment of 2021. The defendant filed a cassation appeal to the Supreme Court. According to the defendant, the Regional Court failed to take into account that the composition of the District Court was contrary to the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure. The Regional Court omitted the resolution of the three combined Chambers of the Supreme Court of 23 January 2020, BSA 1-4110-1/2020, in which it was stated that “contradiction of the composition of the court with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also occurs when the composition of the court includes a person appointed… at the request of the National Council of the Judiciary formed in accordance with the procedure set out in the … Act of 8 December 2017 …, if a defect in the appointment process leads, in specific circumstances, to a violation of the standard of independence and impartiality within the meaning of … Article 47 of the Charter". Meanwhile, the lawsuit was filed after the date on which the above resolution was adopted and the judge adjudicating the case at first instance was appointed after that date.
Key legal question raised by the Court:
The Supreme Court was faced with the question of whether the participation, in the bench adjudicating in a civil case, of a judge at the request of the National Council of the Judiciary formed in accordance with the provisions of the Act on the Supreme Court of 8 December 2017 (Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym) leads to a violation of the standard of independence and impartiality and, as a result, is contrary to Article 379(4) of the Code of Civil Procedure, effecting in the invalidity of the proceedings. The standard of independence and impartiality used by the Supreme Court derives from Art. 45(1) of the Constitution of the Republic of Poland, Art. 47 of the Charter and Art. 6(1) of the European Convention of Human Rights.
Outcome of the case:
The Supreme Court firstly noted that – in assessing the validity of doubts as to a judge's impartiality – any circumstances that may influence the judge's conduct are taken into account. Of particular relevance here were the assessment of both the degree to which the individual contested proceedings were flawed and the circumstances relating to the participating judges themselves and the nature of the cases in which they rule or have ruled in courts involving them. Therefore, it was not excluded that, despite the emergence of fundamental doubts as to whether the standard of independence and impartiality of a given judge participating in the composition of a court had been met due to his/her assumption of office, in specific circumstances these doubts will would not be confirmed, which would be tantamount to the necessity of assuming that the composition of the court with his/her participation met the minimum requirements for maintaining independence and impartiality. The Supreme Court further noted examples of circumstances that could indicate a lack of independence of the judge. Among these factors were: - direct involvement prior to appointment in entities subordinate to the Minister of Justice or other executive authorities or in the National Council of the Judiciary; - a judge's attitude to the changes being made, publicly expressed both in the contested procedure and subsequently, in particular as regards acceptance of unconstitutional actions by executive authorities against the courts, including the Supreme Court, or acceptance of the loss of the attribute of independence by the National Council of the Judiciary; - certain defects in the procedure for appointment to the office of judge. In the opinion of the Supreme Court, in the case at hand, the applicant did not indicate in the application arguments that could undermine the confidence in the impartiality of the judge concerned and, moreover, ignores the fact that the person who ruled in the court of first instance was not appointed to the office of a judge, but by a decision of the President of the Republic of Poland was appointed as a trainee judge (PL asesor sądowy). The procedure for the appointment of trainee judges differs from the mode of appointment to the office of a judge and allows persons who graduated from the National School of Judiciary and Public Prosecution and passed the exam for judgeship or public prosecution to hold judicial office for a period of 4 years from the date of assuming office. Trainee judges are appointed by the President for an indefinite period of time – on the proposal of the National Council of the Judiciary. The role of the National Council of the Judiciary with regard to trainee judges has been limited to examining formal aspects (conditions) only. Therefore, since the National Council of the Judiciary does not select the person to be entrusted with the office, the stage of the procedure before it has a technical, formal value and does not interfere with the process of selecting an independent and independent court. The role of the National Council of the Judiciary has been de facto narrowed to the possibility of objecting to a nomination for a trainee judge position. This means that the mechanism for the appointment of trainee judges is transparent and does not lead in fine to the emergence of a dependent court. Therefore, in the opinion of the Supreme Court, the cassation appeal did not contain any justified pleas and was dismissed.
"(...) the court assessor meets the criteria arising from Article 45 of the Constitution of the Republic of Poland, which provision, expressing the right to a fair trial before an independent court composed of independent judges, in its content coincides with the formula of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 47 of the Charter of Fundamental Rights (...). This means that the allegation of invalidity by the Court of First Instance due to the composition of the court being contrary to the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure is unfounded."
„(…) asesor sądowy spełnia kryteria wynikające z art. 45 Konstytucji RP, który to przepis wyrażając prawo do rzetelnego procesu przed sądem niezależnym, zbudowanym z niezawisłych sędziów, w swej treści jest zbieżny z formułą art. 6 ust. 1 Konwencji o ochronie praw człowieka i podstawowych wolności oraz z art. 47 Karty Praw Podstawowych (…). To oznacza, że bezzasadny jest zarzut nieważności przez Sądem pierwszej instancji ze względu na sprzeczność składu sądu z przepisami prawa w rozumieniu art. 379 pkt 4 k.p.c.”