# C_2020054EN.01001801.xml

| 17.2.2020 | EN | Official Journal of the European Union | C 54/18 |
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17.2.2020

EN

Official Journal of the European Union

C 54/18

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Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa-Żoliborz w Warszawie v XA and YZ

(Case C-749/19)

(2020/C 54/20)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Criminal proceedings against:

XA and YZ

Questions referred

| 1. | Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against persons accused under Article 280(1) of the Penal Code, are conducted in the following manner:






  — | the composition of the court includes a judge delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister of Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time? |
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1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against persons accused under Article 280(1) of the Penal Code, are conducted in the following manner:

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the composition of the court includes a judge delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister of Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

| 2. | Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges:






  (a) | elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; |
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2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges:

(a)

elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure;

| (b) | who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law? |
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(b)

who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

| 3. | From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment? |
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3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

| 4. | Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person? |
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4.

Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

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(1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

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