The Polish Minister of Justice does not have the right to second judges to higher criminal courts, even though he may, while also holding the office of public prosecutor general, terminate this secondment at any time and without giving reasons, the Court of Justice of the EU ruled on Tuesday 16 November (joint cases C-748/19 through C-754/19).
In a new ruling on the independence of the judiciary in Poland, the latest of which—a resounding one—concerned the imposition of a daily fine of €1 million on the country (see EUROPE 12821/1), the Court considered that the same requirement of independence of judges “requires that the rules relating to such secondment should provide the necessary guarantees to avoid any risk that it might be used as a means of political control of the content of judicial decisions, particularly in the criminal field”.
The Court had to rule on seven criminal cases pending before the Warsaw Regional Court, which questioned the conformity with Union law of the composition of the panels called upon to rule on these cases, having regard to the presence, in these panels, of a judge seconded on the basis of a decision of the Minister of Justice.
Under Polish rules on the secondment of judges, the Minister of Justice may assign a judge by secondment to a higher criminal court on the basis of criteria that are not officially known and without the possibility of judicial review. Furthermore, he can terminate this secondment at any time without following any predefined criteria and without giving reasons.
In this context, the court which referred the case also decided to ask the Court whether these rules infringe the presumption of innocence.
The Court concluded on Tuesday that EU law “precludes national provisions under which the Minister of Justice of a Member State may, on the basis of criteria which are not made public, second a judge to a higher criminal court for a fixed or indefinite period and, on the other hand, at any time and by a decision which is not reasoned, terminate that secondment”.
Polish courts of general jurisdiction, such as the Regional Court in Warsaw, fall under the Polish system of remedies in “areas covered by Union law”. And “in order for such courts to be able to provide the effective judicial protection required by this provision, the preservation of their independence is paramount”, says the Court.
The Court therefore emphasised that, while the fact that the Minister of Justice can only second judges with their consent is an important procedural safeguard, there are a number of elements that empower the Minister of Justice to influence these judges and that may raise doubts about their independence.
In order to avoid arbitrariness and the risk of manipulation, the decision on the secondment of a judge and the decision terminating it “must be taken on the basis of criteria known in advance and be duly reasoned”, the Court says.
And since the termination of a judge’s secondment without his or her consent may “have effects for the judge similar to those of a disciplinary sanction”, such a measure should be open to legal challenge.
Furthermore, noting that the Minister of Justice also holds the office of public prosecutor general, “the Court notes that he thus has, in a given criminal case, power over both the ordinary prosecutor and the seconded judges, which is likely to raise legitimate doubts in the minds of litigants as to the impartiality of the said seconded judges”.
These circumstances therefore suggest that such a power vested in the Minister of Justice “cannot be considered compatible with the obligation to respect the requirement of independence”. Moreover, the presumption of innocence applicable to criminal proceedings presupposes that the judge is free of bias and prejudice. The independence and impartiality of judges are therefore essential conditions for the presumption of innocence to be guaranteed, the European judges conclude.
Link to the judgment: https://bit.ly/30nsEUF (Original version in French by Solenn Paulic)