Only an independent and impartial tribunal previously established by law may authorise the prosecution of a judge, Advocate General Anthony Michael Collins of the Court of Justice of the European Union (CJEU) ruled in his opinion on Thursday 15 December (Joined Cases C-615&671/20).
In November 2020, the Disciplinary Chamber of the Polish Supreme Court lifted Judge I.T.’s immunity, reduced his remuneration and suspended him from his duties, so that he could no longer hear any of the cases assigned to him.
The Polish court, on which Mr I.T. sat, is asking the Court of Justice of the EU about the legality of the decision of the Disciplinary Board authorising criminal proceedings against the judge concerned. It further inquiries as to whether an unjustified refusal to allow a judge in respect of whom such a prosecution has been authorised to sit on a court infringes EU law.
In his conclusions, the Advocate General reiterates that, despite the abolition of the Disciplinary Chamber (see EUROPE 12961/17), the legitimate doubts as to its independence from political power and its impartiality remain, as already identified in European case law.
The Advocate General concludes that the European Treaty (Articles 2 and 19 TEU) and the EU Charter of Fundamental Rights (Article 47) preclude national rules that grant jurisdiction to authorise the prosecution, detention and suspension of judges upon a court or tribunal that does not comply with the requirements of independence, impartiality or prior establishment by law.
Poland must therefore ensure that the Disciplinary Chamber’s jurisdiction is exercised by an independent and impartial tribunal previously established by law. It must also, without delay, nullify the effects of the resolutions that chamber adopted.
The Advocate General also considers that all State bodies, including the referring court, must disregard the Disciplinary Chamber’s resolution and allow Judge I.T. to sit on the adjudicating panel of the referring court. However, if one of the cases initially attributed to the Polish judge has been reassigned to another formation that itself constitutes an independent and impartial tribunal previously established by law, those proceedings can remain before the new formation.
See the conclusions: https://aeur.eu/f/4ok (Original version in French by Mathieu Bion)