Published on 22 June 2026
FIRST SECTION
Application no. 12135/25
Maria KAMIENIOWSKA
against Poland
lodged on 10 April 2025
communicated on 3 June 2026
SUBJECT MATTER OF THE CASE
The application concerns a ruling by an ordinary court in the applicant’s criminal case sitting in a formation including a judge appointed to that court by the President of Poland pursuant to the recommendation of the National Council of the Judiciary (Krajowa Rada Sądownictwa, “the NCJ”), as established under the Act of 8 December 2017 Amending the Act on the NCJ and Certain Other Acts (ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw; “the 2017 Amending Act”). At the domestic level the applicant raised an allegation regarding the right to a “tribunal established by law” but it was examined by a court comprising a judge appointed in the same procedure involving the recomposed NCJ.
On 19 June 2023 the Warsaw Regional Court convicted the applicant of tax fraud. The applicant appealed.
On 26 March 2024 by the Warsaw Court of Appeal partly dismissed and partly granted his appeal, sitting in a formation of three judges including Dariusz Drajewicz, appointed by the President on recommendation of the NCJ (resolution no. 1668/2021 of 15 December 2021).
The applicant lodged a cassation appeal in which she raised the complaint that her case had not been examined by an independent and impartial “tribunal established by law.” She also requested “an assessment of the requirements of independence and impartiality” of that judge.
Once informed of the judge assigned to her case at the Supreme Court, the applicant requested the recusal of judge Marek Siwek on the grounds that he had also been appointed in the contested procedure involving the NCJ. On 3 October 2024 the Supreme Court rejected the recusal request sitting as a single judge, Zbigniew Kapiński, appointed in the same procedure (NCJ resolution no. 1286/2021 of 22 September 2021).
On 5 December 2024 (served on 23 January 2025) the Supreme Court dismissed the applicant’s cassation appeal. It sat as a single judge, Marek Siwek, who was appointed by the President on the recommendation of the NCJ (resolution no. Nr 331/2018 of 28 August 2018). The Supreme Court dismissed the applicant’s complaint about the composition of the second-instance court based on the case-law of the Constitutional Court but also on the resolution of three joined Chambers of the Supreme Court of 23 January 2020.
Relying on Article 6 § 1 of the Convention the applicant complains that her appeal and cassation appeal were not examined by an independent and impartial “tribunal established by law”. She also complains that there was no effective review of the appointments of judges because her allegations were examined by the Supreme Court which itself was not a “tribunal established by law” and her request for recusal of the Supreme Court’s judge had been examined by a judge appointed in the same procedure.
QUESTIONS TO THE PARTIES
1. Was the second-instance court which dealt with the applicant’s case an independent and impartial “tribunal established by law” as required by Article 6 § 1 of the Convention? Reference is made to the fact that the applicant’s appeal was examined by the Warsaw Court of Appeal sitting in a formation including judge Dariusz Drajewicz who was appointed in the procedure established by the Law of 8 December 2017 Amending the Act on the National Council of the Judiciary.
In particular, was the allegation regarding the right to a “tribunal established by law” with respect to the ordinary court indicated above effectively reviewed and remedied by the Supreme Court as required by the third step of the Ástráðsson test (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 273-286, 1 December 2020)?
2. Was the formation of the Supreme Court which dealt with the applicant’s cassation appeal on 5 December 2024 an independent and impartial “tribunal established by law” as required by Article 6 § 1 of the Convention?
3. Was the court which dealt with the applicant’s request for the recusal of the Supreme Court’s judge on 3 October 2024 an independent and impartial “tribunal established by law”, as required by Article 6 § 1 of the Convention?
In their replies to the above questions, the parties are asked to refer to the Court’s judgments in Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020; Wałęsa v. Poland, no. 50849/21, 23 November 2023; and Advance Pharma sp. z o.o v. Poland, no. 1469/20, 3 February 2022.