Onder 3.3.2 Rechtbank Amsterdam 12 juni 2020

36. These provisions, taken together, significantly curtail the possibility to examine the question of institutional independence of Polish courts by those courts themselves. This approach raises issues under Article 6 § 1 of the ECtHR, since judicial review should involve examination of all relevant aspects of the independence of the tribunal, including institutional ones. Thus, as demonstrated by the ECtHR’s case-law, the composition of the body which appoints judges is relevant from the stand-point of the requirement of “independence”. There are other institutional elements which should be assessed – for example, the risk of an arbitrary removal of a judge by the Minister of Justice, or the risk of undue pressure by the president of the court in which the judge works. In the opinion of the Venice Commission, national judge should not be prevented from examining these aspects of the case, along with other elements which may affect the “independence and impartiality” requirement under Article 6 § 1 of the ECHR. This is certainly true when the normal chain of appeals is concerned; however, the Strasbourg Court did not have an occasion to examine situations when one national court contests the legitimacy of another judicial body (with the reference to the lack of independence or otherwise) outside of the normal chain of appeals, and what should be a proper procedural framework for resolving such disputes.

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