Published on 10 May 2021

FIRST SECTION

Application s no s 28122/20 and 48599/20 Wirginia BRODOWIAK and Krzysztof D Å» US against Poland lodged on 24 June 2020 and 28 October 2020 communicated on 30 April 2021

STATEMENT OF FACTS

1 . The applicants are Polish nationals. The names and personal details of the applicants are set out in the attached a nnex.

2 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

3 . On 30 April 2018 the applicant started work in company A, and her employer paid social security contributions. On 28 August 2018 she went on sick leave in connection with a pregnancy, gave birth in October 2018 and then took parental leave.

4 . On 28 December 2018 the Social Security Board ( Zak ł ad Ubezpiecze ń Sp oł ecznych , the Board) gave a decision in which it held that the applicant had not in reality been employed and covered by social security. The Board cancelled the payment of allowance in respect of her parental leave.

5 . The applicant appealed, stating that the decision had been based on speculation.

6 . On 18 April 2019 the Katowice Regional Court gave a decision in which it quashed the Board ’ s decision. The court considered that the applicant ’ s employment had not been fictitious, and she had been covered by social insurance.

7 . The Board appealed.

8 . On 23 October 2019 the Katowice Court of Appeal quashed the judgment and dismissed the applicant ’ s appeal against the Board ’ s decision. The court assessed the evidence differently and considered that the applicant ’ s employment in company A had been fictitious, only for the purpose of obtaining social insurance cover. The court sat as a panel of three judges, including judge B.T. The written reasons for the judgment were received by the applicant on 7 January 2020. The judgment is final as no cassation appeal lay against it.

9 . Judge B.T. was appointed to a post at the Katowice Court of Appeal by the President of Poland on 4 October 2019, following the recommendation of the National Council of the Judiciary (see paragraphs 17 and 18 below).

10 . On 28 June 2018 the applicant was charged with fraud.

11 . On 28 May 2019 the Szczecin District Court convicted him and handed down an eight months ’ suspended sentence on probation and a fine.

12 . The applicant appealed.

13 . On 28 January 2020 the Szczecin Regional Court dismissed the appeal and upheld the judgment. The court was composed of a single judge, J.W. The judgment is final as no cassation appeal lay against it.

14 . Judge J.W. was appointed to the post at Szczecin Regional Court by the President of Poland on 10 June 2019, following the recommendation of the National Council of the Judiciary.

Article 186 § 1

“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.”

15 . Article 439 § 1 of the Code of Criminal Procedure deals with absolute grounds of appeal ( bezwzględne przyczyny odwo ł awcze ). This provision needs, in so far as relevant, as follows:

“Regardless of the scope of the appeal and the arguments raised, as well as the impact of the shortcoming on the content of the ruling, the appellate court shall, at a sitting, revoke the decision appealed against if:

2) the court was unduly composed or any of its members was not present at the entire hearing”.

16 . Article 379 of the Code of Civil Procedure deals with invalidity of proceedings ( nieważność postępowania ). This provision needs, in so far as relevant, as follows:

“Proceedings shall be null and void:

4) if the composition of the adjudicating court was inconsistent with the provisions of the law, or if a judge excluded by virtue of the law took part in the examination of the case;”

17 . Before the entry into force of the Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ; “the 2017 Amending Act”). on 17 January 2018, the Act on the National Council of the Judiciary (“the NCJ”) provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels of the judiciary.

18 . The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a § 1). It stipulated that the joint term of new members of the NCJ begins on the day following the day of their election (section 9a § 3).

19 . In August and September 2018 the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before that court. The requests concerned, inter alia , a question whether the Disciplinary Chamber of the Polish Supreme Court satisfied, “in the light of the circumstances in which it [had been] formed and its members appointed, the independence and impartiality required” by EU law.

20 . On 19 November 2019 the CJEU gave a preliminary ruling on the cases referred by the Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18). The CJEU concluded as follows:

“Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the [Supreme Court].

If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”

21 . The CJEU formulated following concerns with respect to the NCJ (§ 143 of the judgment):

“...first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the NCJ directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly ‑ formed NCJ.”

22 . On 5 December 2019 and 15 January 2020 the Supreme Court gave judgments in the three cases in which the requests to the CJEU for preliminary ruling had been made. The judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU. The Supreme Court concluded that the NCJ in “its current composition is not a body that is impartial and independent from legislative and executive branches of power” (§ 88 of the judgment). The Supreme Court also concluded that the Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and of Article 6 of the Convention (§ 79).

23 . On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of Civil, Criminal and Labour Law and Social Security Chambers) issued a common resolution. The court made the following conclusions:

“1. A court formation is unduly composed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is inconsistent with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also where the court includes a person appointed to the office of a judge of the Supreme Court on recommendation of the National Council for the Judiciary in accordance with the [2017 Amending Act].

2. A court is unduly composed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is inconsistent with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also where the court includes a person appointed to the office of a judge of a common or military court on recommendation of the National Council for the Judiciary formed in accordance with the [2017 Amending Act], if the defectiveness of the appointment process leads, in specific circumstances, to the violation of the guarantees of independence and impartiality within the meaning of Article 45 Section 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention].

3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 hereof shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date hereof under the Code of Criminal Procedure before a given court formation.

4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.”

24 . On 20 January 2020 the Speaker of the Sejm addressed to the Constitutional Court a question of a “conflict of competence between the Sejm and the Supreme Court and between the President of Poland and the Supreme Court”. On 28 January 2020 the Constitutional Court issued an interim measure whereby it suspended the enforcement of the Supreme Court ’ s resolution of 23 January 2020 and suspended the prerogative of the Supreme Court to issue resolutions concerning issues of national or international law. In particular, the court held that it would be inadmissible to rely on Article 439 § 1 (2) of the Code of Criminal Procedure and on Article 379 (4) of the Code of Civil Procedure in the manner set out in the Supreme Court ’ s resolution of 23 January 2020.

25 . On 21 April 2020 the Constitutional Court gave a final ruling on the matter of “conflict of competence” ( postanowienie , case no Kpt 1/20). It decided to:

“1. Resolve the conflict of competence between the Supreme Court and the Sejm of the Republic of Poland as follows:

(a) The Supreme Court - also in connection with a decision of an international court - does not have the competence to make a binding interpretation of the provisions of law, by means of [a resolution], leading to a change in the law in the sphere of the system and organisation of the judiciary,

(b) pursuant to Article 10, Article 95(1), Article 176(2), Article 183(2) and Article 187(4) of the Constitution of the Republic of Poland, the making of an amendment to the extent specified in item 1(a) shall be within the exclusive competence of the legislature.

2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows:

(a) under Article 179 in conjunction with Article 144(3)(17) of the Constitution, the appointment of a judge is the exclusive competence of the President of the Republic of Poland, which he exercises on the proposal of the National Council of the Judiciary personally, definitively, without the participation or interference of the Supreme Court,

(b) Article 183 of the Constitution does not provide for the competence of the Supreme Court to exercise supervision over the exercise by the President of the Republic of Poland of the competence referred to in Article 179 in conjunction with Article 144(3)(17) of the Constitution, including the exercise of a binding interpretation of legislation leading to the determination of the conditions for the effectiveness of the exercise of that competence by the President of the Republic of Poland.”

26 . On 20 April 2020, the Constitutional Court gave a judgment (case no U 2/20) in which it held that the joined resolution of the Supreme Court of 23 January 2020 was not in compliance with the Constitution. The judgment was published in the Official Journal on 21 April 2020.

27 . On 21 November 2018 the Supreme Administrative Court made requests to the CJEU for a preliminary ruling in five cases pending before that court. The requests were made in the proceedings concerning resolutions of the NCJ in which the latter decided not to propose to the President of the Republic of Poland the appointment of five candidates to positions as judges at the Supreme Court and to propose the appointment of other candidates to those positions.

28 . On 2 March 2021 the CJEU gave a judgment. It held that the “successive amendments to the Polish Law on the National Council of the Judiciary which have the effect of removing effective judicial review of that council ’ s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court are liable to infringe EU law. Where an infringement has been proved, the principle of the primacy of EU law requires the national court to disapply such amendments” (Court of Justice of the European Union, Press Release No 31/21 Luxembourg, 2 March 2021).

COMPLAINTS

29 . The applicants complain under Article 6 of the Convention that their cases were not heard by an “independent and impartial tribunal established by law”. They rely in particular on the Supreme Court ’ s resolution of 23 January 2020.

30 . In particular, the applicant in the first case submits that, in the composition of the Katowice Court of Appeal sat judge B.T., who had been appointed following the recommendation of the NCJ. The applicant underlines that she could not raise this in the domestic proceedings because the ruling of the CJEU was given after the final judgment. Moreover, the Supreme Court expressly indicated that its resolution of 23 January 2020 did not apply to judgments given before that date.

31 . The applicant in the second case complains that judge J.W., who dealt with his appeal as a single judge, had been appointed in the procedure involving the NCJ. He complains that the NCJ is not an independent authority which was clearly established in the ruling of CJEU.

QUESTIONS TO THE PARTIES

1. Was the second-instance court which dealt with the applicants ’ cases a “tribunal established by law” as required by Article 6 § 1 of the Convention?

2. Was the second-instance court which dealt with the applicants ’ cases independent and impartial, as required by Article 6 § 1 of the Convention?

Reference is made to the fact that the first applicant ’ s appeal was examined by the Katowice Court of Appeal by a panel including judge B.T. and the second applicant ’ s appeal was examined by Szczecin Regional Court, composed of judge J.W. Both judges were appointed in the procedure established by the Law of 8 December 2017 Amending the Act on the National Council of the Judiciary.

In their replies to the above questions, the parties are asked to refer to the Court ’ s judgment in Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020.

APPENDIX

No.

Application

no.

Lodged on

Applicant name

year of birth

place of residence

Represented by

28122/20

24/06/2020

Wirginia BRODOWIAK

1992Świętochłowice

48599/20

28/10/2020

Krzysztof DŻUS

1962Szczecin

Paweł Wacław ZACHARZEWSKI