The end of judicial independence tests? The National Council of the Judiciary goes to the Constitutional Tribunal

The National Council of the Judiciary decided to appeal to the Constitutional Tribunal the statutory provisions of 2022 specifying the scope and method of examining the issue of whether judges meet the requirements of independence and impartiality, i.e. the so-called tests of judicial independence.

“The lack of precise, clear provisions regarding the criteria for meeting the requirements of independence and impartiality, at least at the theoretical level, combined with the concept of an abstract test of impartiality makes it possible to arbitrarily exclude a judge in every case pending before the court and, consequently, from the administration of justice,” we read in the justification for the application to the Constitutional Tribunal posted on the Council's website.

In the opinion of the National Council of the Judiciary, “none of the acts containing the challenged provisions specify the standard of independence or impartiality, there is no definition of what independence and impartiality is within the meaning of individual political acts, or what their violation may or should involve.” “It also does not indicate whether the only criterion for assessing the lack of independence and impartiality is the behavior of the judge himself or other circumstances that are beyond his control and for which he cannot be responsible,” it added.

According to the National Court Register, the so-called Judges' independence tests are an additional, separate procedure enabling a judge to be excluded from adjudicating based on the circumstances of his appointment.

The contested provisions were included in court laws in the summer of 2022, and their content – as indicated by the National Council of the Judiciary – providing for “the introduction into Polish legislation of a new institution of independence and impartiality test, previously unknown neither to the Polish nor to other legal systems, undoubtedly refers to – contained in the judgments of the Court of Justice of the EU in matters relating to the Polish justice system – erroneous legal views that go beyond the jurisdiction of that Court.”

The Council also recalled that the Constitutional Tribunal had already commented on this procedure – with regard to judges of administrative courts and the Supreme Administrative Court in the judgment of February 25 this year. The Tribunal then ruled that these regulations contained in the Law on the System of Administrative Courts were unconstitutional.

The Constitutional Tribunal then ruled on a constitutional complaint by the Supreme Administrative Court judge, Anna Dalkowska, currently a member of the National Council of the Judiciary, and in the times of PiS until 2021, deputy minister of justice.

The case arose when the Supreme Administrative Court dismissed Dalkowska's appeal against the decision to exclude her from hearing one of the cases before this court. In the decision to exclude Dalkowska, the Supreme Administrative Court assessed, among other things, that her professional promotion was characterized by “undoubtedly an extraordinary situation in which a district court judge, bypassing the judicial career ladder, immediately becomes a judge of the Supreme Administrative Court, having no experience in adjudicating in judicial and administrative cases, nor any experience in adjudicating in an appellate court.”

In a constitutional complaint, Judge Dalkowska filed a constitutional complaint with the Constitutional Tribunal to declare the unconstitutionality of the provision of the Act on the System of Administrative Courts regarding the examination of the independence and impartiality of a judge. She pointed out, among other things, that the decision to exclude her was made without hearing her, and the person requesting her exclusion did not prove the existence of grounds for her exclusion, therefore, in her opinion, the application should have been rejected.

Constitutional Tribunal judge Stanisław Piotrowicz, ruling in that case, justified that this provision should be considered “constitutionally unacceptable” because, according to the Constitutional Tribunal, it allows “abstract questioning of a judge's independence, solely on the basis of the circumstances surrounding his appointment.” Moreover, in the Constitutional Tribunal's opinion, mutual verification of the independence of one's appointments by judges through court proceedings is “a denial of the principle of independence and a serious violation of the president's competences.”

Already in April, the Supreme Court informed that the Chamber of Professional Responsibility of this court rejected two defense requests to conduct “judge independence tests” in disciplinary cases. The reason for such decisions of the Supreme Court – as justified – was the February judgment of the Constitutional Tribunal. The Supreme Court emphasized that although the Constitutional Tribunal's judgment was made on the basis of the provisions of the Act on the Organization of Administrative Courts, the provisions of that Act “are identical in terms of normative structure to the solutions provided for in the Act on the Supreme Court, applicable in cases in which the Supreme Court adjudicated.”

In Thursday's motion of the National Council of the Judiciary, these provisions on “independence tests” relating to common courts, military courts and the Supreme Court were appealed to the Constitutional Tribunal.

In a resolution adopted in March 2024, the Sejm emphasized that “taking into account, in the activities of a public authority, decisions of the Constitutional Tribunal issued in violation of the law may be considered a violation of the principle of legalism by these bodies.” The Sejm also decided, among other things, that the two currently adjudicating members of the Constitutional Tribunal – Jarosław Wyrembak (who was on the adjudicating panel on February 25 this year) and Justyn Piskorski – are not judges of the Constitutional Tribunal. Since the Sejm adopted that resolution, the Constitutional Tribunal's judgments have not been published in the Journal of Laws. (PAP)

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