Request for a preliminary ruling from the Wojskowy Sąd Okręgowy w Warszawie (Poland) lodged on 27 October 2023 – Criminal proceedings against P.B.
(Case C-646/23, Lita) 1
Language of the case: Polish
Referring court
Wojskowy Sąd Okręgowy w Warszawie
Party to the main proceedings
P.B.
Questions referred
Must the second subparagraph of Article 19(1) of the Treaty on European Union (‘TEU’) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with the provisions of 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 1 (‘the directive’) be interpreted as precluding a provision of national law such as Article 13 or Article 10 of the ustawa z dnia 28 lipca 2023 r. o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw (Law of 28 July 2023 Amending the Civil Code and Certain Other Laws), which provides for the retirement by operation of law of a judge hearing an appeal in a case subject to the provisions of the directive, in a situation where: (i) the provision is structured in such a way as to apply to only one of all active judges; (ii) the provision does not apply to prosecutors in an analogous situation, even though prosecutors and judges in situations analogous to that of the judge hearing the appeal were treated in the same way under the previously applicable laws; (iii) the law in which that provision is included does not concern the organisation of courts, but a completely different matter, and its explanatory memorandum offers no explanation of the reasons for the introduction of the provision, does not indicate any compelling public interest that its introduction would serve, and does not justify the reasons why its introduction would be proportionate to those aims; and (iv) neither the provision concerned nor any other provision of national law provides for the possibility for a court or any other body to hear an appeal or any other legal remedy of a judge affected by that provision in order to verify the legitimacy of his or her retirement or the compatibility of the provision with higher-ranking provisions of national law or provisions of EU or international law?
2. Is it relevant to the answer to Question 1 that the judge to whom the aforementioned provision of national law applies had previously, because of his activities aimed at protecting the independence of courts and the independence of judges, been subject to repression by the executive, which attempted to retire him on the basis of previously applicable laws, and the aforementioned provision of national law was enacted due to the failure of those attempts? Is it relevant to the answer that, in the view of the referring court, the provision concerned does not serve any compelling public interest, but is repressive in nature?
3. Must the second sentence of Article 19(1) TFEU, Article 47 of the Charter, Articles 2 and 4(3) TEU and the principles of the primacy of Union law and effective judicial review, in light of the judgment of the Court of Justice of 13 March 2007 in Unibet, C 432/05, be interpreted as meaning that a court which includes the judge referred to in Questions 1 and 2 is entitled to suspend of its own motion the application of the provision of national law referred to in Question 1 that provides for his retirement and to continue to adjudicate in this and other cases pending a response from the Court of Justice, in so far as that court considers it necessary for the case pending before it to be decided in accordance with the applicable provisions of Union law?
4. Must the provisions and principles referred to in Question 3 be interpreted as meaning that if the Court of Justice, taking into account the circumstances indicated in Question 2, answers Question 1 in the affirmative, the provision of national law referred to in Question 1 that provides for the judge’s retirement cannot be applied and the judge shall not be retired unless there is another legal basis for his or her retirement?
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1 This case has been given a fictitious name which does not correspond to the real names of either of the parties to the proceedings.
1 OJ 2016 L 65, P. 1.