(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2010/64/EU – Article 5 – Quality of the interpretation and translation – Directive 2012/13/EU – Right to information in criminal proceedings – Article 4(5) and Article 6(1) – Right to information about the accusation – Right to interpretation and translation – Directive 2016/343/EU – Right to an effective remedy and to a fair trial – Article 48(2) of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Second subparagraph of Article 19(1) TEU – Admissibility – Appeal in the interests of the law against a decision ordering a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the request for a preliminary ruling unlawful)
SOURCE: Court of Justice of the European Union, Press Release, No 207/21, 23 November '21
A judge of the Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) (‘the referring judge’) is seised of criminal proceedings brought against a Swedish national. At the first interview with the investigative authority, the accused, who does not speak Hungarian and was assisted by a Swedish-language interpreter, was informed of the suspicions against him. However, there is no information as to how the interpreter was selected, how that interpreter’s competence was verified, or whether the interpreter and the accused understood each other. Indeed, Hungary does not have an official register of translators and interpreters and Hungarian law does not specify who may be appointed in criminal proceedings as a translator or interpreter, nor according to what criteria. Consequently, according to the referring judge, neither the lawyer nor the court is in a position to verify the quality of the interpretation. In those circumstances, he considers that the accused’s right to be informed of his rights could be infringed, as well as his rights of defence.
Accordingly, the referring judge decided to ask the Court of Justice whether Hungarian law was compatible with Directive 2010/64 , on the right to interpretation and translation in criminal proceedings, and Directive 2012/13, on the right to information in such proceedings. In the event of incompatibility, he also asks whether the criminal proceedings may be continued in the absence of the accused, as such proceedings are provided for under Hungarian law, in certain cases, where the accused is not present at the hearing.
Following that initial reference to the Court, the Kúria (Supreme Court, Hungary) ruled on an appeal in the interests of the law brought by the Hungarian Prosecutor General against the order for reference and held that order to be unlawful, without, however, altering its legal effects, on the ground, in essence, that the questions referred were not relevant and necessary for the resolution of the dispute concerned. On the same grounds as those underlying the decision of the Kúria (Supreme Court), disciplinary proceedings, which have in the meantime been discontinued, were brought against the referring judge. Since he was uncertain as to whether such proceedings and the decision of the Kúria (Supreme Court) are compatible with EU law and as to the impact of that decision on the action to be taken upon the criminal proceedings before him, the referring judge made a supplementary request for a preliminary ruling in that regard.
Findings of the Court
First of all, the Court, sitting as the Grand Chamber, holds that the system of cooperation between the national courts and the Court of Justice, established by Article 267 TFEU, precludes a national supreme court from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling submitted by a lower court is unlawful, without, however, altering the legal effects of the order for reference, on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings. Such a review of legality is similar to the review carried out in order to determine whether a request for a preliminary ruling is admissible. for which the Court of Justice has exclusive jurisdiction. Furthermore, such a finding of illegality is liable, first, to weaken the authority of the answers that the Court will provide and, secondly, to limit the exercise of the national courts’ jurisdiction to make a reference to the Court for a preliminary ruling and, consequently, is liable to restrict the effective judicial protection of the rights which individuals derive from EU law.
In such circumstances, the principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court of the Member State concerned. That conclusion is in no way undermined by the fact that, subsequently, the Court may find that the questions referred for a preliminary ruling by that lower court are inadmissible.
In the second place, the Court holds that EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling to the Court of Justice, since the mere prospect of being the subject of such proceedings can undermine the mechanism provided for in Article 267 TFEU and judicial independence, which independence is essential to the proper working of that mechanism. Moreover, such proceedings are liable to deter all national courts from making references for a preliminary ruling, which could jeopardise the uniform application of EU law.
Lastly, in the third place, the Court examines the obligations of the Member States under Directive 2010/64 with regard to interpretation and translation in criminal proceedings. In that regard, the Member States must take specific measures ensuring, first, that the quality of the interpretation and translations is sufficient to enable the suspect or accused person to understand the accusation against him or her. The creation of a register of independent translators or interpreters is, in that regard, one of the means of pursuing that objective. Secondly, the measures adopted by the Member States must enable the national courts to ascertain that the interpretation was of sufficient quality, so that the fairness of the proceedings and the exercise of the rights of the defence are safeguarded.
Following that verification, a national court may conclude that, either because the interpretation provided was inadequate or it is impossible to ascertain its quality, a person has not been informed, in a language which he or she understands, of the accusation against him or her. In such circumstances, Directives 2010/64 and 2012/13, read in the light of the rights of the defence, within the meaning of Article 48(2) of the Charter of Fundamental Rights of the European Union, preclude the criminal proceedings from being continued in absentia.
(References for a preliminary ruling – Rule of law – Independence of the judiciary – Second subparagraph of Article 19(1) TEU – National legislation providing the possibility for the Minister for Justice to second judges to higher courts and to terminate those secondments – Adjudicating panels in criminal cases including judges seconded by the Minister for Justice – Directive (EU) 2016/343 – Presumption of innocence)
SOURCE: Court of Justice of the European Union, Press Release No 204/21, 16 November '21
In connection with seven criminal cases pending before it, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) questions whether the composition of the adjudicating panels called upon to rule on those cases is in line with EU law, having regard to the presence in those panels of a judge seconded in accordance with a decision of the Minister for Justice pursuant to the Law on the organisation of the ordinary courts.
According to that court, under the Polish rules relating to the secondment of judges, the Minister for Justice may assign a judge, by way of secondment, to a higher criminal court on the basis of criteria which are not officially known, without the secondment decision being amenable to judicial review. In addition, that minister may terminate that secondment at any time without such termination being subject to criteria that are predefined by law or having to be accompanied by a statement of reasons. In that context, the referring court decided to question the Court of Justice as to whether the rules referred to above are in line with the second subparagraph of Article 19(1) TEU and as to whether those rules undermine the presumption of innocence applicable to criminal proceedings resulting from, inter alia, Directive 2016/343.
By its judgment, delivered by the Grand Chamber, the Court rules that the second subparagraph of Article 19(1) TEU, read in the light of Article 2 TEU, and Directive 2016/343 preclude provisions of national legislation pursuant to which the Minister for Justice of a Member State may, on the basis of criteria which have not been made public, second a judge to a higher criminal court for a fixed or indefinite period and may, at any time, by way of a decision which does not contain a statement of reasons, terminate that secondment, irrespective of whether that secondment is for a fixed or indefinite period.
Findings of the Court
As a preliminary point, the Court finds that the Polish ordinary courts, which include the Regional Court, Warsaw, fall within the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU. To guarantee that such courts can ensure the effective legal protection required under that provision, maintaining their independence is essential.
Compliance with the requirement of independence means, inter alia, that the rules relating to the secondment of judges must provide the necessary guarantees in order to prevent any risk of that secondment being used as a means of exerting political control over the content of judicial decisions. In that regard, the Court emphasises that, although the fact that the Minister for Justice may not second judges without their consent constitutes an important procedural safeguard, there are, however, a number of factors which, in the referring court’s view, empower that minister to influence those judges and may give rise to doubts concerning their independence.
Analysing those various factors, the Court states, first of all, that, in order to avoid arbitrariness and the risk of manipulation, the decision relating to the secondment of a judge and the decision terminating that secondment must be taken on the basis of criteria known in advance and must contain an appropriate statement of reasons. In addition, as the termination of the secondment of a judge without that judge’s consent may have effects similar to those of a disciplinary penalty, it should be possible for such a measure to be legally challenged in accordance with a procedure which fully safeguards the rights of the defence.
Furthermore, noting that the Minister for Justice also occupies the position of Public Prosecutor General, the Court finds that that minister thus has, in any given criminal case, power over both the public prosecutor attached to the ordinary court and the seconded judges, which is such as to give rise to reasonable doubts in the minds of individuals as to the impartiality of those seconded judges. Lastly, the seconded judges in the adjudicating panels called upon to rule in the disputes in the main proceedings are also occupying the positions of deputies of the Disciplinary Officer for Ordinary Court Judges, who is the person responsible for investigating disciplinary proceedings brought against judges. The combination of those two roles, in a context where the deputies of the Disciplinary Officer for Ordinary Court Judges are also appointed by the Minister for Justice, is such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of the other members of the adjudicating panels concerned to external factors. Taken together, those various facts are, subject to the final assessments which are to be carried out by the referring court, such as may lead to the conclusion that the Minister for Justice has, on the basis of criteria which are not known, the power to second judges to higher courts and to terminate their secondment, without being required to give reasons for that decision, with the result that, during the period of those judges’ secondment, they are not provided with the guarantees and the independence which all judges should normally enjoy in a State governed by the rule of law.
Such a power cannot be considered compatible with the obligation to comply with the requirement of independence. Furthermore, as regards the presumption of innocence applicable to criminal proceedings, respect for which is intended to be ensured by Directive 2016/343, it presupposes that the judge is free of any bias and any prejudice when examining the criminal liability of the accused. The independence and impartiality of judges are therefore essential conditions for guaranteeing the presumption of innocence. However, in this instance, it appears that, in the circumstances referred to above, the independence and impartiality of judges and, accordingly, the presumption of innocence may be jeopardised.
(Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of Supreme Court judges — Application to judges in post — Possibility of continuing to carry out the duties of judge beyond that age subject to obtaining authorisation granted by discretionary decision of the President of the Republic)
SOURCE: Court of Justice of the European Union, Press Release, No 81/19, 24 June '19
On 3 April 2018, the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’) entered into force. Under that law, the retirement age for Supreme Court judges was lowered to 65. The new age limit applied as from the date of entry into force of that law, and included judges of that court appointed before that date. It was possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this was subject to the submission of a declaration indicating the desire of the judge concerned to continue to carry out his duties and a certificate stating that his health allowed him to serve, and had to be authorised by the President of the Republic of Poland. In granting that authorisation, the President of the Republic of Poland would not be bound by any criterion and his decision would not be subject to any form of judicial review.
Thus, according to that law, serving Supreme Court judges who reached the age of 65 before that law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a declaration and certificate by 3 May 2018 inclusive and the President of the Republic of Poland had authorised them to continue in active service at the Supreme Court. On 2 October 2018, the Commission brought an action for failure to fulfil obligations before the Court of Justice.
The Commission considers that by, first, lowering the retirement age and applying that new retirement age to judges appointed to the Supreme Court up until 3 April 2018 and, second, by granting the President of the Republic of Poland the discretion to extend the active judicial service of Supreme Court judges, Poland has infringed EU law.
By order of 15 November 2018, the President of the Court granted the Commission’s request to decide this action under an expedited procedure. The Commission underlined at the hearing that, despite the amendments made by the Law of 21 November 2018 to the provisions of the Law on the Supreme Court challenged in the present proceedings, it was not certain whether that Law of 21 November 2018 eliminated the alleged violations of EU law and, in any event, there remained an interest in deciding this case in view of the importance of judicial independence in the EU legal order.
By its judgment delivered today, the Court points out, first of all, that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, the common values referred to in Article 2 TEU . That premiss both entails and justifies the existence of mutual trust between the Member States and, in particular, their courts that those values upon which the European Union is founded, including the rule of law, will be recognised, and therefore that the EU law that implements those values will be respected.
Furthermore, although the organisation of justice in the Member States falls within the competence of the latter, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations under EU law. It follows that the Member States must put in place remedies sufficient to ensure effective legal protection, within the meaning of the Charter of Fundamental Rights of the European Union, in the fields covered by EU law. More specifically, every Member State must, under the second subparagraph of Article 19(1) TEU, ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in those fields meet the requirements of that protection. To ensure that a body such as the Supreme Court is in a position to offer such protection, maintaining its independence is essential. Consequently, the national rules called into question by the Commission in its action may be reviewed in the light of the second subparagraph of Article 19(1) TEU.
The Court next holds that the freedom of the judges from all external intervention or pressure, which is essential, requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, including the guarantee against removal from office. The principle of irremovability requires, in particular, that judges may remain in post provided they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. In the present case, the application of the measure consisting in lowering the retirement age of judges of the Supreme Court to judges already serving on that court results in the latter prematurely ceasing to carry out their judicial office. Such an application is acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.
The Court rejects Poland’s argument that the decision to lower to 65 the retirement age of the judges of the Supreme Court was taken with the goal of standardising that age with the general retirement age applicable to all workers in Poland and, in doing so, improving the age balance among senior members of that court. The explanatory memorandum to the draft Law on the Supreme Court, the implementation of a new mechanism allowing the President of the Republic to decide, on a discretionary basis, to extend the thus-shortened period during which a judge carries out his or her duties and the fact that the measure in question affected almost a third of the serving members of that court, including its First President, whose 6-year mandate guaranteed under the Constitution was shortened, are such as to raise serious doubts as to the real aims of that reform. In addition, that measure appears neither to be appropriate for the purposes of achieving the aims put forward by Poland nor to be proportionate. Consequently, the Court holds that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court is not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence.
Furthermore, the Court points out that the guarantees of the independence and impartiality of the courts require that the body concerned exercise its functions wholly autonomously, being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions, with due regard for objectivity and in the absence of any interest in the outcome of proceedings. It observes, in this connection, that the conditions and the detailed procedural rules provided for under the Law on the Supreme Court with regard to a potential extension beyond normal retirement age of the period for which a judge of the Supreme Court carries out his or her duties do not satisfy such requirements. Such an extension is now subject to a decision of the President of the Republic, which is discretionary inasmuch as its adoption is not, as such, governed by any objective and verifiable criterion and for which reasons need not be stated. In addition, that decision cannot be challenged in court proceedings. Moreover, the National Council of the Judiciary, when required to deliver an opinion to the President of the Republic before the latter adopts his decision, has, as a general rule and in the absence of any rule obliging it to state reasons for them, merely delivered opinions, whether positive or negative, for which sometimes no reasons at all have been stated or for which sometimes purely formal reasons have been stated. Therefore, such opinions are not such as to be apt to provide the President of the Republic with objective information with regard to the exercise of the power with which he is entrusted for the purposes of authorising, twice and each time for a 3-year term, between the ages of 65 and 71, a judge of the Supreme Court to continue to carry out his or her duties. The Court concludes that that power is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests before them.