CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juillet 2021

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POLAND (Application no. 43447/19)   JUDGMENT   Art 6 § 1 (civil) • Very essence of the right to a ”tribunal established by law” impaired due to grave irregularities in appointment of judges to the newly established Supreme Court’s Disciplinary Chamber following legislative reform • Art 6 applicable under its civil head • Application of three-step test formulated in Guðmundur Andri Ástráðsson v.   Iceland [GC] • Supreme Court’s thorough assessment and reasoned finding of a manifest breach of domestic law due to inherently deficient judicial appointment procedure by reformed National Council of the Judiciary which lacked independence from legislature and executive • Constitutional Court’s failure to carry out comprehensive, balanced and objective analysis of the questions before it in Convention terms and actions aimed at undermining Supreme Court’s findings • Lack of domestic remedy to challenge the alleged defects   STRASBOURG 22 July 2021 FINAL   22/11/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Reczkowicz v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   43447/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Joanna Reczkowicz (“the applicant”), on 6   August 2019; the decision to give notice to the Polish Government (“the Government”) of the complaint that the applicant’s case was not dealt with by an independent and impartial tribunal established by law, as required by Article   6 §   1 of the Convention, and to declare inadmissible the remainder of the application; the decision to give priority to the application (Rule 41 of the Rules of Court); the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Polish Commissioner of Human Rights and the International Commission of Jurists, who were granted leave to intervene by the President of the Section; Having deliberated in private on 22   June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The applicant, who is a barrister, complained that the Disciplinary Chamber of the Supreme Court that dealt with her case had not been an independent and impartial “tribunal established by law” and alleged a breach of Article 6 § 1 of the Convention. THE FACTS 2.     The applicant was born in 1980 and lives in Gdynia. Having been granted legal aid, she was represented by Ms M. Gąsiorowska , a lawyer practising in Warszawa. 3.     The Polish Government (“the Government”) were represented by their Agent Mr J. Sobczak, of the Ministry of Foreign Affairs. THE BACKGROUND TO THE CASE National Council of the Judiciary 4.     The National Council of the Judiciary ( Krajowa Rada Sądownictwa , hereinafter “the NCJ”) is a body which was introduced in the Polish judicial system in 1989, by the Amending Act of the Constitution of the Polish People’s Republic ( ustawa z dnia 7 kwietnia 1989 r. o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej ) . 5.     Its organisation was governed by the 20 December 1989 Act on the NCJ as amended and superseded on several occasions ( ustawa z dnia 20   grudnia 1989 r. o Krajowej Radzie Sądownictwa ). The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges at different levels, and from different types of court, within the judiciary. 6.     The 1997 Constitution of the Republic of Poland provides that the purpose of the NCJ is to safeguard the independence of courts and judges (see paragraph   59 below). Article 187 § 1 governs the composition of its twenty-five members: seventeen judges (two sitting ex officio : the First President of the Supreme Court, the President of the Supreme Administrative Court and fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts); four Members of Parliament chosen by Sejm ; two members of the Senate; the Minister of Justice, and one person indicated by the President of the Republic of Poland (“the President” or “the President of Poland”). 7.     The subsequent Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa – “the 2011 Act on the NCJ”) , in its wording prior to the amendment which entered into force on 17   January 2018, provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels within the judiciary (see paragraph 62 below). Legislative process 8 .     As part of the general reorganisation of the Polish judicial system prepared by the government, Sejm enacted three new laws: the 12   July 2017 Law on amendments to the Act on the Organisation of Ordinary Courts and certain other statutes ( Ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw, “Act on the Ordinary Courts”), the 12   July 2017 Amending Act on the NCJ and certain other statutes ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ) and the 20 July 2017 Act on the Supreme Court ( Ustawa o Sądzie Najwyższym) . 9 .     The 12 July 2017 Law on amendments to the Act on the Ordinary Courts was signed by the President of Poland on 24 July 2017 and entered into force on 12   August 2017 (see paragraph 69 below). 10 .     On 31 July 2017 the President vetoed two acts adopted by Sejm : one on the Supreme Court and the Amending Act on the NCJ. On 26   September 2017 the President submitted his proposal for amendments to both acts. The bills were passed by Sejm on 8 December and by the Senate on 15   December 2017. They were signed into law by the President on 20   December 2017. New National Council of the Judiciary Election of the new members of the NCJ 11 .     The Amending Act on the NCJ of 8 December 2017 ( ustawa z dnia 8   grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw , “the 2017 Amending Act”) entered into force on 17   January 2018 (see paragraphs 7 above and 63 below). 12.     The 2017 Amending Act granted to Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section   9a(1) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act). The positions of the judicial members of the NCJ who had been elected on the basis of the previous Act were discontinued with the beginning of the term of office of the new members of the NCJ (section   6). The election of new judicial members of the NCJ required the majority of 3/5 of votes cast by at least half of the members of Sejm (section   11d(5)). The candidates for the NCJ were to present a list of support from either 2,000   citizens or twenty-five judges (section   11a). 13.     On 5 March 2018 a list of fifteen judges, candidates for the NCJ, was positively assessed by the Commission of Justice and Human Rights of Sejm . 14 .     On 6 March 2018 Sejm , in a single vote, elected fifteen judges as new members of the NCJ. 15.     On 17 September 2018 the Extraordinary General Assembly of the European Network of Councils for the Judiciary (ENCJ) decided to suspend the membership of the Polish NCJ. The General Assembly found that the NCJ no longer met the requirements of being independent from the executive and the legislature in a manner which ensured the independence of the Polish judiciary (see also paragraph 175 below). Non-disclosure of endorsement lists 16.     On 25 January 2018 a Member of Parliament (“MP”), K.G.-P., asked the Speaker of Sejm ( Marszalek Sejmu ) to disclose the lists, containing names of persons supporting the candidates to the NCJ, which had been lodged with Sejm . The MP relied on the Act on Access to Public Information ( ustawa o dostępie do informacji publicznej ). Her request was dismissed on 27   February 2018 by the Head of the Chancellery of Sejm ( Szef Kancelarii Sejmu ). The MP appealed. 17.     On 29 August 2018 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) gave judgment in the case (no.   II   SA/Wa   484/18). The court quashed the impugned decision. It considered that domestic law had not allowed any limitation of the right of access to public information in respect of attachments to the applications lodged by candidates for the NCJ containing lists of judges who had supported their candidatures. The lists of judges supporting candidates for the NCJ had to be considered as information related to the exercise of a public office by judges. The publication of endorsement lists signed by judges had to be preceded by the removal of their personal registration numbers (PESEL) as the number had not related to the exercise of public office by judges. 18.     The Head of the Chancellery of Sejm lodged a cassation appeal against the judgment. 19 .     On 28 June 2019 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal (I OSK 4282/18). The court agreed with the conclusions of the Regional Administrative Court. It found that the attachments to the applications of candidates to the NCJ in the form of lists of citizens and lists of judges supporting the applications had fallen within the concept of public information. The limitation of this right to public information in relation to the lists of judges supporting the applications of candidates for the NCJ could not be justified by the reason that this information was related to the performance of public duties by judges. The court held that access to the list of judges supporting the applications of candidates for the NCJ should be made available after prior anonymisation of the judges’ personal registration numbers (PESEL). 20 .     On 29 July 2019 the Head of the Personal Data Protection Office ( Prezes Urzędu Ochrony Danych Osobowych – “ UODO ” ) decided that the endorsement lists should remain confidential and should not be published (two decisions were issued on that day, one initiated ex officio and one upon the application of Judge M.N., a member of the NCJ). 21.     Appeals against the decisions of the Head of UODO were lodged by the Commissioner of Human Rights, the MP K.G.-P. and a foundation, F.C.A. On 24 January 2020 the Warsaw Regional Administrative Court quashed the decisions of 29 July 2019 (II SA/Wa 1927/19 and II   SA/Wa   2154/19). The court referred to findings contained in the final judgment of the Supreme Administrative Court of 28 June 2018 which had not been enforced to date (see paragraph 19 above). 22 .     On 14 February 2020 the lists of persons supporting candidates to the NCJ were published on the Sejm website. The Supreme Court New Chambers 23.     The Act on the Supreme Court of 8 December 2017 (“the 2017 Act on the Supreme Court”) modified the organisation of that court by, in particular, creating two new Chambers: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ; see paragraph   66 below). 24.     The Disciplinary Chamber of the Supreme Court became competent to rule on cases concerning the employment, social security and retirement of judges of the Supreme Court (the 2017 Act on the Supreme Court, section   27(1)). The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in the Supreme Court were excluded from it (section 131). 25 .     The Chamber of Extraordinary Review and Public Affairs became competent to examine extraordinary appeals ( skarga nadzwyczajna ), electoral protests and protests against the validity of the national referendum, constitutional referendum and confirmation of the validity of elections and referendums, other public law matters, including cases concerning competition, regulation of energy, telecommunications and railway transport and cases in which an appeal had been lodged against a decision of the Chairman of the National Broadcasting Council ( Przewodniczący Krajowej Rady Radiofonii i Telewizji ), as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court (section 26). Appointments of judges (a)    Act announcing vacancies at the Supreme Court 26 .     On 24 May 2018 the President announced sixteen vacant positions of judges of the Supreme Court in the Disciplinary Chamber ( obwieszczenie Prezydenta , Monitor Polski – Official Gazette of the Republic of Poland of 2018, item 633). By the same act the President announced other vacant positions at the Supreme Court: twenty in the Chamber of Extraordinary Review and Public Affairs, seven in the Civil Chamber and one position in the Criminal Chamber. 27.     At its sessions held on 23, 24, 27 and 28 August 2018, the NCJ closed competitions for vacant positions of judges at the Supreme Court. (b)    Disciplinary Chamber 28.     On 23 August 2018 the NCJ issued a resolution (no.   317/2018) recommending twelve candidates for judges of the Disciplinary Chamber and submitted the requests for their appointment to the President. 29.     On 19 September 2018 the President decided to appoint ten judges, from among those recommended by the NCJ, to the Disciplinary Chamber of the Supreme Court. On 20 September 2018 the President handed the letters of appointment to the appointed judges and administered the oath of office to them. (c)    Chamber of Extraordinary Review and Public Affairs 30 .     On 28 August 2018 the NCJ issued a resolution (no.   331/2018) recommending twenty candidates for judges of the Chamber of Extraordinary Review and Public Affairs and submitted the requests for their appointment to the President. 31.     On 10 October 2018 the President decided to appoint nineteen judges, as recommended by the NCJ on 28 August 2018, to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. The twentieth candidate to be appointed, Judge A.S., was appointed by the President on 30   January 2019 after he had relinquished a foreign nationality. (d)    Criminal and Civil Chambers 32.     On 24 August 2018 the NCJ issued a resolution (no.   318/2018) recommending one candidate for the position of judge of the Criminal Chamber of the Supreme Court. 33 .     On 28 August 2018 the NCJ issued a resolution (no.   330/2018) recommending seven candidates for judges of the Civil Chamber of the Supreme Court. 34.     On 10 October 2018 the President decided to appoint one judge to the Criminal Chamber and seven judges to the Civil Chamber of the Supreme Court, as recommended by the NCJ on 24 and 28   August 2018. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. Appeals against the NCJ resolutions recommending judges for appointment to the Supreme Court (a)    Disciplinary Chamber 35 .     On 25, 27 September and 16 October 2018 the Supreme Administrative Court dismissed requests lodged by various appellants to stay the execution ( o udzielenie zabezpieczenia ) of the NCJ’s resolution no.   317/2018 recommending candidates for appointment to the Disciplinary Chamber (see paragraph   28 above). The court noted that the NCJ resolution of 23 August 2018 had been delivered to the candidate G.H. on 14   September 2018, and he had lodged his appeal with the Supreme Administrative Court on 17   September 2018. However, on 19 September 2019 the President had appointed the judges recommended by the NCJ. NCJ resolution no. 317/2018 had therefore been enforced, which precluded any stay of execution. (b)    Chamber of Extraordinary Review and Public Affairs 36.     On 27 September 2018 the Supreme Administrative Court (case no.   II   GW   28/18) stayed the execution of the NCJ resolution of 28   August 2018 (no.   331/2018; see paragraph 30 above) recommending twenty candidates to the Chamber of Extraordinary Review and Public Affairs and not recommending other candidates, including the claimant A.B. (c)    Criminal and Civil Chambers (i)       Staying the execution of the NCJ’s resolutions 37.     On 25 September 2018 the Supreme Administrative Court (case no.   II GW   22/18) stayed the execution of the NCJ resolution of 24   August 2018 (no.   318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D. 38.     On 27 September 2018 the Supreme Administrative Court (case no.   II GW 27/18) stayed the execution of the NCJ resolution of 28   August 2018 (no.   330/2018; see paragraph 33 above) recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and not recommending other candidates, including the appellant I.J. The court noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20   September 2018 although it had been obliged to do so under the law. (ii)     Case of A.B. (II GOK 2/18) 39.     On 1 October 2018 Mr A.B. lodged an appeal against the NCJ’s resolution of 28 August 2019 (no. 330/2018; see paragraph 33 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the execution of the resolution. 40 .     On 8 October 2018 the Supreme Administrative Court (case no.   II   GW 31/18) stayed the execution of the impugned resolution. The court noted that A.B.’s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court. 41 .     On 26 June 2019 the Supreme Administrative Court made a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”) and the latter gave judgment on 2   March 2021 (see paragraphs   165-167 below). 42 .     On 6 May 2021 the Supreme Administrative Court gave judgment (case no. II GOK 2/18). It quashed the impugned NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. As regards the part of the resolution concerning the refusal to recommend certain other candidates it quashed it in so far as it concerned the appellant, A.B. (see also paragraphs   122 ‑ 125 below). 43 .     In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2   March 2021 (see paragraphs   162-167 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph 123 below). 44.     The court also noted that it did not appear that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph   169 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1 October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates. 45 .     Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5   December 2019 and the resolution of 23 January 2020 (see paragraphs   71 ‑ 86 and 89-105 below), that the President’s announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister. The Court of Justice of the European Union judgment of 19   November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18) 46 .     In August and September 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling ( pytania prejudycjalne ). The opinion of Advocate General Tanchev in those cases, delivered on 27 June 2019, analysed the qualifications required by the NCJ with reference to the Court’s case-law and concluded that the Disciplinary Chamber of the Polish Supreme Court did not satisfy the requirements of judicial independence (see paragraph   163 below). 47.     The CJEU delivered a judgment on 19 November 2019 in which it considered that it was for the national court, i.e. the Supreme Court, to examine whether the Disciplinary Chamber of the Supreme Court was an impartial tribunal. The CJEU clarified the scope of the requirements of independence and impartiality in the context of the establishment of the Disciplinary Chamber so that the domestic court could itself issue a ruling (see paragraph 164 below). The Supreme Court’s rulings Judgment of 5 December 2019 48 .     On 5 December 2019 the Supreme Court issued the first judgment in cases that had been referred for a preliminary ruling to the CJEU (case no.   III   PO   7/180; see paragraph 71 below). The Supreme Court concluded that the NCJ was not an authority that was impartial or independent from legislative and executive branches of power. Moreover, it concluded that the Disciplinary Chamber of the Supreme Court could not be considered a court within the meaning of domestic law and the Convention . Resolution of 8 January 2020 49 .     On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution in which it interpreted the consequences of the CJEU judgment narrowly (I   NOZP   3/19, see paragraph   87 below). The independence of the NCJ was to be examined only if raised in the appeal and the appellant would have to justify that the lack of independence of the NCJ had adversely affected the content of the resolution given in his or her case. Resolution of 23 January 2020 50 .     On 23 January 2020 three joined Chambers of the Supreme Court issued a joint resolution (see paragraph 89 below). The court agreed with the assessment in the judgment of 5   December 2019 that the NCJ had not been an independent and impartial body and that this had led to defects in the procedures for the appointment of judges carried out on the basis of the NCJ’s recommendations. With respect to the Disciplinary Chamber, the Supreme Court took into account its organisation, structure and appointment procedure and concluded that it structurally failed to fulfil the criteria of an independent court. Accordingly, the judgments given by the Disciplinary Chamber were not judgments given by a duly appointed court. In consequence, according to the resolution, court formations including Supreme Court judges appointed through the procedure involving the NCJ were unduly composed within the meaning of the relevant provisions of the domestic law. Constitutional Court Pending case before the Constitutional Court 51.     On 29 March 2021 the Prime Minister referred the following request to the Constitutional Court: “Application to examine the compatibility of: (1) the first and second paragraphs of Article 1, in conjunction with Article   4(3) of the Treaty on European Union of 7 February 1992, hereinafter ‘TEU’, understood as empowering or obliging a law-applying body to derogate from the application of the Constitution of the Republic of Poland or ordering it to apply legal provisions in a manner inconsistent with the Constitution of the Republic of Poland, with Article   2; Article   7; Article 8 § 1 in conjunction with Article 8 § 2, Article 90 § 1 and Article   91 §   2; and Article 178 § 1 of the Constitution of the Republic of Poland; (2) Article   19(1), second subparagraph, in conjunction with Article   4(3) TEU, interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law is authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution, including the application of a provision which, by virtue of a decision of the Constitutional Court, has ceased to be binding as being inconsistent with the Basic Law, with Article 2; Article 7; Article   8 §   1 in conjunction with Article   8 §   2 and Article 91 § 2; Article 90 § 1; Article   178 §   1; and Article   190 §   1 of the Constitution of the Republic of Poland; (3) Article   19(1), second subparagraph, in conjunction with Article   2 TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic of Poland and to review a resolution of the National Council of the Judiciary concerning an application to the President of the Republic of Poland for appointment of a judge, with Article 8 § 1 in conjunction with Article   8 §   2, Article   90 §   1 and Article 91 § 2; Article 144 § 3 (17); and Article   186 §   1 of the Constitution of the Republic of Poland.” 52.     On 17 May 2021 the Polish Commissioner for Human Rights joined the proceedings as a third-party intervener. He considered that the first two issues should not be examined by the Constitutional Court at all, and as regards the third, that it should turn to the CJEU for a preliminary ruling. 53.     The proceedings are pending before the Constitutional Court (K   3/21). THE CIRCUMSTANCES OF THE CASE 54.     The applicant is a barrister. 55.     On 12 July 2017 the Pomerania Bar Chamber Disciplinary Court in Gdańsk ( Sąd Dyscyplinarny Pomorskiej Izby Adwokackiej w Gdańsku ) imposed a disciplinary penalty on the applicant. She was suspended for a period of three years in connection with various breaches of the Code of Bar Ethics ( Kodeks Etyki Adwokackiej ) in the course of performing her duties as representative of certain clients. The charges against her concerned, first, events dating back to October 2013 in respect of which she was charged with failure to display particular diligence when acting as her client’s representative, in particular by failing to settle financial accounts with him and return all documents. The second charge related to her non-compliance with a previous disciplinary order suspending her from practice and related to events in August 2015 when the applicant had continued to provide legal services despite that order. 56.     The applicant appealed, contesting the facts as established by the Disciplinary Court and their assessment. 57.     On 12 May 2018 the High Disciplinary Court of the Bar ( Wyższy Sąd Dyscylinarny Adwokatury ) upheld the ruling. The applicant lodged a cassation appeal with the Supreme Court. 58.     On 14 February 2019 the Supreme Court, sitting as a panel of three judges of the Disciplinary Chamber (K.W., P.Z., and T.P.), dismissed the applicant’s cassation appeal. The decision contained no reasons. It was notified to the applicant’s lawyer on 20 February 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice Domestic Law Constitution of the Republic of Poland 59 .     The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.” Article 7 “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 § 1 “The Constitution shall be the supreme law of the Republic of Poland.” Article 10 “1.     The system of government of the Republic of Poland shall be based on the separation of, and balance between, the legislative, executive and judicial powers. 2.     Legislative power shall be vested in Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.” Article 32 “1.     All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2.     No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Article 45 § 1 “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Article 144 “1.     The President of the Republic, exercising his constitutional and statutory authority, shall issue Official Acts. 2.     Official Acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts accountability therefor to Sejm . 3.     The provisions of paragraph 2 above shall not relate to: ... (17) appointing judges;...” Article 179 “Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.” Article 180 “1.     Judges shall not be removable. 2.     Recall of a judge from office, suspension from office, or transfer to another bench or position against his or her will, may only occur by virtue of a court judgment and only in those instances prescribed by statute. 3.     A judge may be put on retirement as a result of illness or infirmity which prevents him discharging the duties of his office. The procedure for doing so, as well as for appealing against such decision, shall be specified by statute. 4.     A statute shall establish an age limit beyond which a judge shall take retirement. ...” Article 183 § 1 “The Supreme Court shall exercise supervision over ordinary and military courts in respect of their judgments.” Article 186 § 1 “The National Council of the Judiciary shall safeguard the independence of courts and judges.” Article 187 “1.     The National Council of the Judiciary shall be composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges chosen from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; (3) four members chosen by Sejm from among its Deputies and two members chosen by the Senate from among its Senators. 2.     The National Council of the Judiciary shall choose, from among its members, a chairperson and two deputy chairpersons. 3.     The term of office of those chosen as members of the National Council of the Judiciary shall be four years. 4.     The organisational structure, the scope of activity and working procedures of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.” Article 190 “1.     Judgments of the Constitutional Court shall be of universally binding application and shall be final. 2.     Judgments of the Constitutional Court regarding matters specified in Article   188 shall be immediately published in the official publication in which the original normative act was promulgated. If a normative act has not been promulgated, then the judgment shall be published in the Official Gazette of the Republic of Poland,   Monitor Polski . 3.     A judgment of the Constitutional Court shall take effect from the day of its publication, however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time period may not exceed 18   months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers. 4.     A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or a statute, of a normative act on which a legally binding judgment of a court, a final administrative decision or a settlement of other matters was based, shall be a basis for reopening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings. 5.     Judgments of the Constitutional Court shall be made by a majority of votes.” Relevant provisions of the Code of Criminal Procedure and Code of Civil Procedure 60.     Article 439 § 1 of the Code of Criminal Procedure ( Kodeks postępowania karnego ) deals with absolute grounds of appeal ( bezwzględne przyczyny odwoławcze ): “Regardless of the scope of the appeal and the arguments raised, or the impact of any defects 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”. 61.     Article 379 of the Code of Civil Procedure ( Kodeks postępowania cywilnego ) deals with invalidity of proceedings ( nieważność postępowania ): “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 [from sitting in the case] by virtue of the law took part in the examination of the case; ...” The 2011 Act on the National Council of the Judiciary as in force prior to 17 January 2018 62 .     The relevant provisions of the 2011 Act on the NCJ as in force until 17   January 2018 (see paragraph 7 above) read: Section 11 “1.     The general assembly of judges of the Supreme Court elects two members of the Council from among the judges of that court. 2.     The general assembly of judges of the Supreme Administrative Court, together with the representatives of general assemblies of provincial administrative courts, elects two members of the Council from among the judges of the administrative courts. 3.     The meeting of representatives of general assemblies of judges of courts of appeal elects two members of the Council from among judges of the courts of appeal. 4.     The meeting of representatives of general assemblies of regional court judges elects eight members of the Council from among their number. 5.     The assembly of judges of military courts elects one member of the Council from among its body.” Section 12 “1.     General assemblies of judges of Regional Administrative Courts elect two representatives from among their members. 2.     Representatives of the general meetings of judges of regional administrative courts are elected at the latest one month before the expiry of the term of office of the Council members, elected from among the judges of the administrative courts. The representatives are elected for a period of four years.” Section 13 “1.     General assemblies of judges of courts of appeal elect representatives of general assemblies of judges of courts of appeal from among judges of the courts of appeal in the proportion of one fifth of the number of those judges. 2.     The general assemblies of regional judges elect representatives of the general assemblies of regional judges from among their members in the proportion of one fiftieth of the number of regional judges. 3.     The election of representatives of the general assemblies shall be carried out at the latest one month before the expiry of the term of office of the members of the Council, elected from among the judges of ordinary courts. The representatives are elected for a period of four years. 4.     The Minister of Justice, in agreement with the Chairman of the Council, convenes the meeting of the representatives in order to elect the members of the Council. The Chairman of the Council convenes the meeting of representatives once every two years, and also at the request of one third of the number of representatives or at the request of the Council. 5.     The meetings of the representatives evaluate the activity of the members of the Council elected by them, make proposals to the Council concerning its activity and adopt resolutions concerning the problems arising in the activity of the ordinary courts. 6.     The meeting of representatives is chaired by the oldest judge in terms of age. The meetings deliberate according to the rules of procedure adopted by them.” The 2017 Amending Act 63 .     The relevant provisions of the 2011 Act on the NCJ, as amended by the 2017 Amending Act (see paragraph 11 above – ustawa z dnia 8   grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw) read as follows: Section 9a “1.     Sejm shall appoint, from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts, fifteen members of the Council for a joint four-year term of office. 2.     When making the selection referred to in subsection 1, Sejm , to the extent possible, shall take into account the need for representation of judges of particular types and levels of court in the Council. 3.     The joint term of office of new members of the Council elected from among the judges shall begin on the day following that on which they are elected. Members of the Council from the previous term shall perform their duties until the first day of the joint term of office of new members of the Council." Section 11a “1.     The Speaker of Sejm , n