Commentary to the decision of the Supreme Administrative Court of 27 January 2020, ref. No. I OSK 1917/18

With its decision ref. No. I OSK 1917/18, the Supreme Administrative Court dismissed the motion for exclusion of a judge on the basis of the defectiveness of the appointment of the "new" National Council of the Judiciary. The Court pointed out that the reasons for a motion are decided by the circumstances of a "specific case", and not its "general nature" and referred to the traditional, constitutionally justified significance of the President's act of appointing a judge (a person authorized to adjudicate). An opposite decision would lead to far-reaching systemic consequences: (a) it would establish judicial oversight of the President's discretionary acts, thus far inacceptable; (b) it would transfer the "burden of proof" (of a judge's lack of impartiality) from the party requesting exclusion of a judge; (c) it would change the nature of the motion, which would become an instrument in the "battle" for the desired nominating procedure for a judge. Hence, it shall be stated that the formation of the system of the National Council of the Judiciary and the nominating procedure is of general nature and as a rule abstracts from the circumstances of a specific case.