The National Council of the Judiciary has filed a motion with the Constitutional Tribunal challenging provisions concerning the so-called “judge independence tests”. “The lack of precise and clear regulations regarding the criteria for meeting the requirements of independence and impartiality, at least at a theoretical level, combined with the concept of an abstract impartiality test, makes it possible to arbitrarily exclude a judge in any case pending before a court and, consequently, from administering justice,” it was stated in the justification of the motion.
Judge independence test. Regulations challenged before the Constitutional Tribunal
According to the Council, “in none of the acts containing the contested provisions is there any clarification of the standard of independence or impartiality, nor is there a definition of what independence and impartiality mean under the respective systemic laws, or what their violation may or should consist of.” “It also does not indicate whether the sole criterion for assessing the lack of independence and impartiality is the conduct of the judge themselves, or other circumstances beyond their control and for which they cannot be held responsible,” it added.
According to the Council, the so-called judge independence tests constitute an additional, separate procedure enabling the exclusion of a judge from adjudicating based on the circumstances of their appointment.
The contested provisions were introduced into judicial laws in the summer of 2022, and their content – as indicated by the Council – providing for “the introduction into the Polish legal system of a new institution of independence and impartiality testing, previously unknown both to Polish and other legal systems, undoubtedly refers to – contained in the judgments of the Court of Justice of the European Union concerning the Polish judiciary – erroneous legal views exceeding the jurisdiction of that Court.”
Earlier ruling of the Constitutional Tribunal
The Council also recalled that the Tribunal had already ruled on this procedure – with regard to judges of administrative courts and the Supreme Administrative Court – in a judgment of 25 February this year. At that time, the Tribunal declared these regulations contained in the Law on the System of Administrative Courts unconstitutional.
The Tribunal ruled in that case on a constitutional complaint filed by a judge of the Supreme Administrative Court, now a member of the Council, and during the rule of Law and Justice (PiS) until 2021 a Deputy Minister of Justice, Anna Dalkowska.
The case arose when the Supreme Administrative Court dismissed Dalkowska’s appeal against the decision to exclude her from examining one of the cases before that court. In the decision on her exclusion, the Court assessed, among other things, that her professional promotion was marked by “an undoubtedly extraordinary situation in which a district court judge, bypassing the stages of judicial career, becomes immediately a judge of the Supreme Administrative Court, having no experience in adjudicating administrative court cases, nor any experience in adjudicating in an appellate court.”
Judge Dalkowska, in her constitutional complaint to the Tribunal, requested a declaration that the provision of the Law on the System of Administrative Courts concerning the examination of a judge’s independence and impartiality was unconstitutional. She argued, among other things, that the decision on her exclusion was made without hearing her, and that the person requesting her exclusion failed to provide evidence of the grounds for such exclusion, and therefore the motion should have been dismissed.
Stanisław Piotrowicz, a judge of the Constitutional Tribunal adjudicating in that case, argued that the provision should be regarded as “constitutionally unacceptable”, because – in the Tribunal’s view – it allows “abstract questioning of a judge’s independence solely on the basis of circumstances accompanying their appointment.” Moreover, according to the Tribunal, judges mutually verifying the independence of their appointments through court proceedings constitutes “a denial of the principle of independence and a serious violation of the competences of the President.”
As early as April, the Supreme Court of Poland reported that the Chamber of Professional Responsibility of that court had rejected two defence motions to conduct “judge independence tests” in disciplinary cases. The reason for those decisions – as justified – was precisely the February ruling of the Tribunal. The Supreme Court noted that although that ruling was issued on the basis of provisions of the Law on the System of Administrative Courts, the regulations of that act “are identical in their normative structure to the solutions provided for in the Act on the Supreme Court, applicable in cases adjudicated by the Supreme Court.”
In Thursday’s motion, the Council challenged before the Tribunal precisely those provisions concerning “independence tests” in relation to common courts, military courts, and the Supreme Court.