Justyna Zandberg-Malec

Court may not decide on its own about impartiality of judges

Barring an interlocutory appeal from an order of an appellate court denying a motion to recuse a judge is unconstitutional.

On 2 June 2010 the Polish Constitutional Tribunal ruled on the constitutional challenge filed by the Orgmasz Institute of Industrial Organisation and Management concerning the lack of a right to appeal from a decision on a motion to recuse a judge in cases where a cassation appeal will lie.

The Constitutional Tribunal held that Art. 3941 §2 of the Civil Procedure Code, insofar as it does not provide for the ability to appeal from an order by a court of second instance denying a motion to recuse a judge, is inconsistent with Art. 45(1) of the Polish Constitution, but is not inconsistent with Art. 176(1) of the Constitution.

We wrote about the case before. The petitioner had doubts about the impartiality of the panel of judges hearing the case at the second instance and filed a motion to recuse the judges. The motions were denied, and an interlocutory appeal was rejected.

The petitioner claimed that the provision under which its interlocutory appeal was rejected, Civil Procedure Code Art. 3941 §2, violates Art. 45(1) of the Constitution (the right to a fair trial) and Art. 176(1) (the right to an appeal), because it limits review of an order by the court of second instance denying a motion to recuse a judge.

The tribunal upheld the petitioner’s claim, but found that the real problem was not the number of instances, but appealability, and thus there was a violation of Art. 45, not Art. 176.

The tribunal stressed that the institution of recusal of a judge assures the impartiality of the court and judicial independence, and also fosters public trust in the justice system and its authority. However, it is necessary to take a cautious approach to demarcating the limits of legislative discretion with respect to recusal of judges, so that procedures are created that afford the parties a realistic opportunity to seek recusal but also prevent abuses of recusal claims.

Allegations going to the impartiality of a judge are situational in nature, and the stage of the proceeding is irrelevant, as the motion will always concern a judge the party runs across for the first time at that particular stage in the proceeding. Thus, the tribunal held, there is no justification for treating this mechanism differently, within the same set of procedural rules, at different instances.

The judgment is final and will be published in the Journal of Laws.