Impartiality

Disciplinary Proceedings - Judicial Ethics

Sąd Najwyższy

Supreme Court

II ZOW 47/22

December 6th, 2022

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No referrence to EU law

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The judge, when hearing the cases, passed judgments in favour of a party to the proceedings. He acquitted him and discontinued the proceedings. It turned out that the judge had borrowed money from this person, but had not returned it. The judge also did not recuse himself from hearing the case. The Supreme Court upheld the contested judgment.

Impartiality - judicial ethics - removal from the service - disciplinary penalty - relationship between judge and parties

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Criminal Code, Code of Criminal Procedure

The Disciplilnary Court of First Instance adjudged the penalty of deposition from office. The Disciplinary Court of the Court of Appeal in Szczecin indicated that the defendant K. G., in his statement of 4 July 2019, admitted that he had taken loans of more than PLN 10,000, i.e., PLN 30,000 in 2012 from A. B., PLN 50,000 in 2013 from M. W., PLN 16,500 in 2015 (???), were not included by him in his asset declarations. Furthermore, he argued that no request had been received to exclude him from the consideration of A. B.'s cases. Nor, according to the defendant's assessment, was there any need for K. G. to submit a request for his exclusion from hearing the case. The Court assumed that both acts allegedly committed by the defendant K. G. constitute a disciplinary offence referred to in Article 107, paragraph 1 of the Code of Administrative Procedure. They were committed in short intervals, using the same opportunity, before the first, even if not final, verdict with respect to either of the acts. This determined their classification as committed under the conditions of a sequence of disciplinary offences.
An appeal against that verdict was filed by the defendant, K. G.. The appellant raised the charge of disproportionality of the punishment, indicating that it was severe and inadequate to the degree of his culpability. In support of his appeal, he stressed that the financial issues linking him to  A. B. had not influenced the rulings in the cases he had pursued. A. B.'s lender only demanded repayment of the loan from him in 2019, when there was a judgment unfavourable to him. During the course of the proceedings, he did not request to be excluded from hearing the case. He admitted that it was a mistake not to repay the loan on time and that this was due to the difficult financial situation his family was in at the time. He also pointed out that he was ill and awaiting an appointment for back surgery. Referring to these circumstances, the defendant, K. G., requested that the impugned judgment be amended and a lighter punishment be imposed, allowing for further adjudication, or that the impugned judgment be reversed and the case be referred back for reconsideration.

The fact that the defendant K. G. did not exclude himself from conducting the aforementioned cases, despite the fact that he remained indebted to a party to these proceedings, also proves that he grossly violated the standards of judicial impartiality, as the situation in which he found himself due to the loan granted to him would make an external observer express a justified doubt that he ruled in these cases objectively, i.e. only in accordance with the law and his own conscience. Moreover, it is indisputable that maintaining for almost seven years a state of affairs in which the defendant judge K. G., who was in a legal relationship by virtue of a loan with a party to the criminal proceedings he was presiding over, did not exclude himself from those proceedings, could give the impression of favouritism or bias to that party. In the decisions adopted
in November 2002 at The Hague, the Bangalore Principles of Judicial Conduct (Bangalore Principles) indicates that impartiality is an essential element in the proper exercise of a judge's office, and therefore a judge should disengage himself from any action in a case that he is not  able to decide impartially, as well as when it appears to an outside observer that the judge will not be impartial in a given case.

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There is no doubt that disciplinary liability is, as a rule, connected with conduct contrary to the principles of professional deontology, the dignity and solemnity of the profession, with acts detrimental to the prestige of the profession or detrimental to official duties. In contrast to offences and misdemeanours, a precise typification of disciplinary offences is not possible, as it is impossible to create a closed catalogue of behaviours jeopardising the proper performance of professional duties or harming the dignity of the profession (cf. e.g. the judgment of the Constitutional Tribunal of 27 February 2001,
K 22/00, OTK 2001, No. 3, item 48) - citation

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Bangalore Principles - see. 5.2

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The verdict was  was delivered by the Chamber of Professional Responsibility of the Supreme Court.

Jarosław Gwizdak, INPRIS

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