The neo-judge ruling does not exist. The Supreme Court fully implements the judgments of the CJEU and the ECtHR.
In its decision of 26 October 2022, II CSKP 556/22, the Supreme Court declared the decision of a neo-judge who dismissed a request by an SN judge for his exclusion in a case concerning a bank loan agreement as non-existent. As a result, the president of the Civil Chamber of the Supreme Court should appoint a legal judge to hear such a request.
In his reasoning, the court pointed out, inter alia:
'Adjudication by an independent and impartial court previously established by law is the basis of the right to a fair trial, which is one of the fundamental rights of the individual. This imposes an obligation on each court to examine whether, in a particular case, its composition guarantees the parties to the proceedings their right to a fair trial. Whenever the composition of a court raises a reasonable doubt in this regard, it is necessary to establish that the hearing of the case by that composition will not infringe the right of the parties to have the case heard by an impartial and independent court that also meets the requirements of a court previously established by law. (...)
The European Court of Human Rights accepted that the Supreme Court - Extraordinary Control and Public Affairs Chamber and the Supreme Court - Civil Chamber, adjudicating in formations composed of judges thus appointed, were deprived of the attribute of a court established by law within the meaning of Article 6(1) of the Convention, resulting in a violation of this provision by the Republic of Poland. The European Court of Human Rights also found that the defects in the nomination proceedings conducted for appointment to the office of a judge of the Supreme Court are systemic in nature and will affect the examination of similar complaints filed or referred to the Court in the future. The effects of the faults in these proceedings are not abolished by the possibility for the parties to the proceedings to use this measure (the so-called judge impartiality test) provided for in Article 29 § 4-25 of the Act on the Supreme Court, as amended by the Act of 9 June 2022 (Journal of Laws, item 1259).
In its judgment of 6 October 2021. (C 487/19), the CJEU determined that an appointment to the office of a judge of the Supreme Court in flagrant breach of the fundamental norms forming an integral part of the system and functioning of the judicial system under consideration may constitute grounds for declaring an order issued by such a person sitting as a single judge null and void if the further conditions referred to in that judgment are met. In the present case, an assessment to that effect was all the more necessary because the subject matter of the proceedings relates directly to the application of European Union law. The dispute is between a consumer and a bank in connection with a bank credit agreement.
The acts of appointment made by the President of the Republic of Poland did not result in the termination of the proceedings before the Supreme Administrative Court, which submitted preliminary questions to the Court of Justice of the European Union in connection with the pending proceedings (...).
The annulment of the NCJ's resolutions Nos. 330/18 and 331/18 - including the resolution concerning the appointment to the position of a judge of the Supreme Court of the person who issued the decision of 26.04.22 - resulted in the acts of appointment to the office of a judge of the Supreme Court, which the President of the Republic of Poland made on the basis of those resolutions, not finding the basis required by Article 179 of the Constitution. Although the absence of this basis did not occur until after the act of appointment had been made, this was solely the result of a violation of the Supreme Administrative Court's orders of 27 September 2018, referred to above, which cannot in any way diminish the seriousness of the actual lack of basis for the presidential act of appointment to the office of judge. (...).
The very issuance of this order (on the exclusion of the judge) under conditions of invalidity of the proceedings, which could also have been obvious to the parties to the proceedings in view of the content of the resolution of the Three Chambers of the Supreme Court of 23.01.20, justifies the statement that in the conviction of the individuals a doubt could have arisen as to whether the composition of the adjudicating court, shaped by the order of 26.04.22, constitutes an impartial and independent court in the constitutional and convention sense. Indeed, the reasons for the invalidity of the proceedings are related to the most serious violations of procedural or constitutional rules. For this reason, there is a principle in civil proceedings that the invalidity of proceedings must be taken into account ex officio. This imposes an obligation on every court to take steps to prevent the invalidity of proceedings. The judge forming the composition of the court may not deliberately rule under conditions of invalidity of proceedings, exposing the parties to these proceedings to the negative consequences of a defective judicial decision. Therefore, the rules of procedure interpreted in accordance with Article 45(1) of the Constitution, taking into account the principles expressed in the Constitution, in particular the principle that the Republic of Poland is a democratic state governed by the rule of law, cannot justify the omission by the adjudicating court of the assessment of the consequences of a decision issued under conditions of invalidity of proceedings also when the determination of invalidity of proceedings is not related to the examination of such measures as an appeal (Art. 378 of the Code of Civil Procedure) or a cassation appeal (art. 39813 of the Code of Civil Procedure), and it is possible to avoid the effects of the invalidity of the proceedings. This is necessary in a situation in which it can be established that the court has issued a decision under conditions of invalidity of proceedings being aware of it. Indeed, performing jurisdictional acts in such conditions undermines the solemnity of the judiciary and causes a qualified defect in the issued decision.
Therefore, it should be assumed that at each stage of the proceedings it is necessary for the court to examine ex officio whether the composition in which it decides the case meets the requirements of a court of competent jurisdiction so understood, and in the case where the composition was formed as a result of a ruling on the exclusion of a judge, it is also necessary to assess whether this ruling was issued by a court that meets the standards of an independent, impartial and competent court within the meaning of Article 45(1) of the Constitution.