On Wednesday 6 October, the Court of Justice of the EU handed down a new judgment on the state of the judiciary in Poland and considered this time that non-consensual transfers of a judge to another court or between two divisions of the same court “are likely to undermine the principles of irremovability and independence of judges”.
The case concerns a judge of a Polish regional court who was transferred in August 2018 to another division, a decision he had challenged before the National Council of the Judiciary. The latter had dismissed the case in September 2018. The judge concerned then turned to the Supreme Court. He had also applied for the disqualification of all the Supreme Court judges sitting in the chamber of that court called upon to rule on his appeal, arguing that, owing to the way in which they were appointed, the members of that chamber did not offer the required guarantees of independence and impartiality.
The Polish Supreme Administrative Court had received various appeals on the procedures for appointment of judges to the Supreme Court, but the President of the Republic had not taken them into account. At the beginning of 2019, the Civil Division of the Supreme Court, ruling this time as a single judge, subsequently rejected the plaintiff’s application again.
In its judgment, the Court argues that transfers without consent of a judge to another court or between two sections of the same court are potentially liable to undermine the principles of irremovability and independence of judges, as they may “constitute a means of exercising control over the content of judicial decisions (...), but also of having significant consequences on the life and career of judges and thus of having effects similar to those of a disciplinary sanction”. The requirement of independence of judges therefore requires that the regime applicable to non-consensual transfers of judges should provide the necessary guarantees to avoid any risk of this independence being jeopardised by direct or indirect external intervention.
Such non-consensual transfers can therefore only be decided for legitimate reasons “relating in particular to the distribution of available resources to ensure the proper administration of justice”. They must also be open to legal challenge.
On the question of the single judge, the Court considers that it is possible, given the context of the appointments, to conclude that the appointment of this single judge may give rise to “legitimate doubts as to the impermeability of this judge to external elements and to his neutrality” or his independence or impartiality.
If the court which referred the case reaches such conclusions, then the single-judge formation should be considered not to have been an independent and impartial tribunal.
Link to the judgment: https://bit.ly/3iDcPPS (Original version in French by Solenn Paulic)