The Right to an Independent and Impartial Court and Participation in a Panel of a Judge Seconded by the Minister of Justice. Disapproving Commentary on the Decision of the Supreme Court of 24 April 2024 (II KK 125/24, LEX no. 3710040)

Abstract

The commented decision of the Supreme Court of 24 April 2024 (II KK 125/24, LEX no. 3710040) concerns the issue of the right to an independent and impartial court in relation to the participation in a panel a judge seconded by the Minister of Justice pursuant to Article 77 § 1 (1) of the Act of 27 July 2001 – Law on the Organisation of the Common Courts. The importance of this issue in recent years results from controversial decisions of the Minister of Justice and the position expressed by the Court of Justice of the European Union in the judgment of 16 November 2021, in joined cases C-748/19 to C-754/19 (criminal proceedings against WB et al.), which questioned the current shape of this institution from the perspective of the right to a court. Taking into account the arguments formulated therein, the manner of its interpretation in the Supreme Court’s jurisprudence should be assessed negatively. The choice of the decision of 24 April 2024 as the subject of a critical reference to the position taken by the Supreme Court results from its justification, which is a clear example of failure to take into account the argumentation contained in the judgment of the Court of Justice of the European Union.