Published on 22 June 2026
FIRST SECTION
Application no. 21563/25
Mariusz KOMSTA
against Poland
lodged on 2 July 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 composed of three judges 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 13 February 2018 the Warsaw Regional Court convicted the applicant of bribery and fraud. The applicant appealed.
On 12 February 2024 the Warsaw Court of Appeal dismissed his appeal sitting in a formation of three judges:
- Przemysław Filipkowski, who was appointed by the President on recommendation of the NCJ (resolution no. 738/2020 of 11 September 2020);
- Dorota Radlińska, who was appointed by the President on recommendation of the NCJ (resolution no. 981/2019 of 8 November 2019);
- Sławomir Machnio who was appointed by the President on recommendation of the NCJ (resolution no. 183/2022 of 2 March 2022).
The applicant lodged a cassation appeal in which he raised the complaint that his case had not been examined by an independent and impartial “tribunal established by law” owing to the illegal appointment of all judges of the Court of Appeal. He also requested “an assessment of the requirements of independence and impartiality” of the judges.
During the proceedings before the Supreme Court the applicant requested the recusal of judge Małgorzata Bednarek appointed to the case on the ground that she had also been appointed in the invalid procedure involving the NCJ. On 12 February 2025 the Criminal Chamber of the Supreme Court rejected the recusal request sitting in a single judge formation of judge Paweł Kołodziejski, appointed in the same procedure (NCJ resolution no. 786/2021 of 25 June 2021).
On 26 February 2025 (served on 11 March 2025) the Supreme Court (Criminal Chamber) dismissed the applicant’s cassation appeal sitting as a single judge, Małgorzata Bednarek, who was appointed by the President on the recommendation of the NCJ (resolution no. 317/2018 of 23/08/2018). The court dismissed the complaint about the composition of the second instance court relying on the case-law of the Constitutional Court.
Relying on Article 6 § 1 of the Convention the applicant complains that his appeal and cassation appeal were not examined by an independent and impartial “tribunal established by law”. He also complains that there was no effective review of the appointments of judges as the cassation appeal and the request for recusal had been examined by judges 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 of three judges who were all 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 second-instance court 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 26 February 2025 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 12 February 2025 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.