The independency of courts is 1 of the fundamental pillars of the regulation of law, and fresh events in Poland have one more time shed light on this issue. The ultimate Court (SN), represented by neo-Judge Tomasz Shanciło, referred a preliminary question to the Court of Justice of the European Union (TEU) concerning the independency of courts. The question concerns neojudges appointed before 2018 in procedures which, according to the author of the proposal, did not meet democratic standards.
Dispute over judicial independence
Neosier Tomasz Szwiło, together with 2 legally appointed judges, Karol Weitz and Vladimir Wróbel, is examining the cassation complaint concerning neosier Joanna Misztal-Konecka. It was appointed to the ultimate Court in 2018 by the neoKRS, which, according to the applicant, "has no democratic legitimacy". Neosiera Szarciło stressed that Mishtal-Konecka, despite his respective years of professional experience and his full career as a judge, may not meet the requirements of independency and impartiality.
In this context, questions arise about the nomination process of the judges, which, according to Shanciła, was flawed before 2018. The justice argues that these procedures were apparent, as the candidatures were agreed in certain groups of judicial circles. They went to the ultimate Court mainly doctoral habilitated legal sciences and assistant judges, without prior experience as judge.
Appointments and “old” Judges
However, the applicant is not limited to the evaluation of post-2018 nominations. The allegations of Shanciła besides concern judges Karol Weitz and Vladimir Wróbel. In his opinion, they participated in the nomination procedures prior to the change of political power, which were incompatible with the minimum standards of the regulation of law. Moreover, the neojudge emphasizes that after the change of power, both judges were appointed to the codification committees, for which they receive remuneration. The Neo-Shanciło asks whether specified persons can be considered independent of the influence of the executive authority, especially erstwhile they derive direct benefits from it.
Judgments contrary to the rule ‘Nemo Iudex in Causa Sua’
Another plea is to violate the rule of ‘nemo judex in causa sua’, which is to prohibit ruling on its own. Neosier Szarciło criticises the resolution of the 3 ultimate Court chambers of 23 January 2020, which, in his opinion, violates EU law. This resolution afraid the appointment of judges, including Józef Iwulski, appointed to the ultimate Court in 1990. According to Shanciła, Iwulski did not then meet the request of a 10-year stint as a judge, and his appointment was the consequence of an explanation extending the rules by the KRS.
Key questions for the EUSC
The mention for a preliminary ruling from the neo-Judge to the TEU aims to get answers to questions as to whether a court with the participation of legally appointed judges before 2018 by the KRS, which in its opinion had dubious democratic legitimacy, can be considered independent in accordance with Union law. The Neos justice besides asks whether, after the change of political power in Poland and the conclusion of the procedure with Article 7 of the Treaty on European Union, there may inactive be allegations of the independency and impartiality of the alleged neo-Judges, and in what circumstances specified dependence would be disclosed.
The position of the European Union
When examining this proposal, the CJEU may influence the definition and standards of the independency of courts in Poland. From an EU perspective, key questions concern first and foremost whether judges who benefit from close relations with the executive authority can be considered independent. In consequence to these questions, the TEU may set out fresh guidelines for interpreting the regulation of law in the European context.
Summary
The issue of the independency of courts in Poland raises global controversy. The neo jurisprudence's application to the TEU if this decides to answer a question from a individual who is not a justice within the meaning of the law may constitute a crucial step in determining whether the Polish courts in which both the ‘old’ and the ‘neasures’ sit meet the requirements of independency and impartiality. The decision of the TEU may have far-reaching consequences for the functioning of the Polish judiciary and Poland's relations with the European Union in the context of the regulation of law.
Continued here:
The proceeding from the NS sends a preliminary question to the TEU concerning the neojudges
