Communicated on 5 June 2020 Published on 15 June 2020

FIRST SECTION

Application no. 43447/19 Joanna RECZKOWICZ against Poland and 2 other applications (see list appended)

STATEMENT OF FACTS

1 . The applicants are Polish nationals. The names and personal details of the applicants are set out in the attached Annex.

2 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

3 . The applicant is a barrister.

4 . On 12 July 2017 the Pomerania Bar Chamber Disciplinary Court ( Sąd Dyscyplinarny Pomorskiej Izby Adwokackiej w Gdańsku ) imposed a disciplinary penalty on the applicant. The applicant was suspended for a period of three years in connection with various incidents relating to her role as her client ’ s representative.

5 . The applicant appealed, contesting the facts and their assessment.

6 . On 12 May 2018 the Bar Superior Disciplinary Court ( Wyższy Sąd Dyscylinarny Adwokatury ) upheld the ruling. The applicant lodged a cassation appeal with the Supreme Court.

7 . On 14 February 2019 the Supreme Court, sitting as a panel of three judges, A, B, and C of the Disciplinary Chamber, dismissed the applicant ’ s cassation appeal. The decision contains no reasons. It was notified to the applicant ’ s lawyer on 20 February 2019.

8 . The applicant is a judge at Mysłowice District Court.

9 . In October 2017 the applicant applied for a post of judge at the Gliwice Regional Administrative Court. She presented the necessary peer reviews and other recommendations.

10 . On 11 July 2018 the National Council of the Judiciary ( Krajowa Rada Sądownictwa –“the NCJ” ) decided not to recommend the applicant ’ s candidature. The applicant lodged an appeal with the Supreme Court.

11 . On 7 February 2019 the Supreme Court, sitting as a panel of three judges, X, Y and Z of the Chamber of Extraordinary Control and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ), gave judgment in the applicant ’ s case. The judgment with its written reasons was delivered to the applicant on 14 March 2019.

12 . The applicant is a judge at Lublin Regional Court.

13 . In March 2018 the applicant applied for a post of judge at Lublin Court of Appeal. He presented the necessary peer reviews and other recommendations.

14 . On 4 November 2018 the NCJ decided not to recommend the applicant ’ s candidature. The applicant lodged an appeal with the Supreme Court. In his appeal he raised complaints that the NCJ was not an independent authority and had been constituted in breach of the law.

15 . On 24 April 2019 the Supreme Court, sitting as a panel of three judges, U, V and W of the Chamber of Extraordinary Control and Public Affairs, gave judgment in the applicant ’ s case.

Article 10

“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.

2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.”

Article 186 § 1

“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.”

Article 187

1. The National Council of the Judiciary shall be composed as follows:

1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;

2) fifteen judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts;

3) four members chosen by the Sejm from amongst its Deputies and two members chosen by the Senate from amongst its Senators.

2. The National Council of the Judiciary shall choose, from amongst its members, a chairperson and two deputy chairpersons.

3. The term of office of those chosen as members of the National Council of the Judiciary shall be four years.

4. The organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.”

16 . Before the entry into force of the 2017 Amending Act, on 17 January 2018, the Act on the National Council of the Judiciary (“the NCJ”) provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels of the judiciary.

17 . The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a § 1). It stipulated that the joint term of new members of the NCJ begins on the day following the day of their election (section 9a § 3).

18 . Pursuant to section 6 of the 2017 Amending Act, the mandates of judicial members of the NCJ elected on the basis of the previous Act shall continue until the day preceding the beginning of the term of office of the new members of the NCJ.

19 . The 2017 Act on Supreme Court entered into force on 3 April 2018. It modified organisation of that court by in particular creating two new Chambers: Disciplinary and of Extraordinary Control and Public Affairs (section 3).

20 . The Disciplinary Chamber of the Supreme Court became competent to rule on cases of the employment, social security and retirement of judges of the Supreme Court (section 27 § 1).

21 . The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in Supreme Court were excluded from it (section 131).

22 . Section 29 of the 2017 Act on the Supreme Court provides that the judges of the Supreme Court shall be appointed by the President of Poland acting on a proposal from the NCJ.

23 . On 27 September 2018 the Supreme Administrative Court (II GW 28/18) gave a ruling suspending enforcement of a decision of the NCJ regarding recommendations of judges to the Chamber of Extraordinary Control and Public Affairs of the Supreme Court.

24 . On 19 September 2018 the President appointed ten judges, including A, B and C, to the Disciplinary Chamber of the Supreme Court. The appointment was made upon recommendation of the NCJ.

25 . On 10 October 2018 the President appointed nineteen judges, including U, V, W, X, Y and Z, to the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. The appointment was made upon recommendation of the NCJ.

(a) Preliminary ruling of 19 November 2019

26 . In August and September 2018 the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before that court.

27 . The requests concerned, inter alia , whether the Disciplinary Chamber of the Polish Supreme Court satisfied, “in the light of the circumstances in which it was formed and its members appointed, the independence and impartiality required” by EU law.

28 . On 27 June 2019 the Advocate General Tanchev delivered his written opinion in those cases. He analysed the required qualifications of the NCJ with reference to the Court ’ s case-law (§ 123 of the opinion). The Advocate General Tanchev concluded that the Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence (§ 76 ibid).

29 . On 19 November 2019 the Court of Justice of the European Union gave a preliminary ruling on the cases referred by the Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18). The CJEU concluded as follows:

“Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the[Supreme Court].

If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”

30 . The CJEU formulated following concerns with respect to the NCJ (§ 143 of the judgment):

“... first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the NCJ directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly ‑ formed NCJ.”

31 . The CJEU noted that: “the decisions of the President of the Republic appointing judges to the Supreme Court are not amenable to judicial review” (§ 145 ibid).

32 . In addition, the CJEU considered that other features, taken jointly, pertaining to the Disciplinary Chamber should also be taken into account (§§ 147-151):

- “this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social security and retirement of judges of the [Supreme Court], which previously fell within the jurisdiction of the ordinary courts”.

- “under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly-appointed judges, thereby excluding judges already serving in the [Supreme Court]”.

- “although established as a chamber of the [Supreme Court], the Disciplinary Chamber appears, in contrast to the other chambers of that court, and as is clear, inter alia, from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.”

(b) Interim measures in case C 791/10

33 . In January 2020 the Commission requested the CJEU to order Poland to adopt a series of interim measures in another case pending before the CJEU (C 791/19 Commission v. Poland). On 9 March 2020 the CJEU held a hearing and on 8 April 2020 granted the interim measures requested by the Commission. The court ordered a provisional suspension of the relevant provisions of the 2017 Act on Supreme Court governing activity of the Disciplinary Chamber, in disciplinary proceedings of judges, until delivery of the final judgment by the CJEU. Secondly, the Polish authorities were ordered to refrain from referring cases pending before the Disciplinary Chamber for examination by a panel that has not fulfilled the requirements of independence as indicated in particular in the ruling of 19 November 2019). Thirdly, the Polish authorities shall inform the Commission, within one month from the ruling ordering interim measures, of the measures taken in its execution.

34 . On 5 December 2019 and 15 January 2020 the Supreme Court gave judgments in the three cases in which the requests to CJEU for preliminary ruling. The judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU. The court concluded that the NCJ in “its current composition is not a body that is impartial and independent from legislative and executive branches of power” (§ 88 of the judgment). The Supreme Court also concluded that the Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and of Article 6 of the Convention (§ 79).

35 . On 8 January 2020 the Chamber of Extraordinary Control and Public Affairs of the Supreme Court gave a resolution of seven judges ( uchwała ) on interpretation of consequences of the CJEU judgment of 19 November 2019 for cases pending before the Supreme Court.

36 . On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of Civil, Criminal, and Labour Law and Social Security Chambers) issued a common resolution. The court made the following conclusions, in so far as relevant:

“1. A court formation is unduly appointed within the meaning of Article 439(1 )( 2) of the Code of Criminal Procedure or a court formation is unlawful within the meaning of Article 379(4) of the Code of Civil Procedure also where the court formation includes a person appointed to the office of a judge of the Supreme Court on application of the National Council for the Judiciary formed in accordance with the [2017 Amending Act].

...

3. The interpretation of Article 439(1 )( 2) of the Code of Criminal Procedure and Article 379(4) of the Code of Civil Procedure provided in points 1 and 2 hereof shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date hereof under the Code of Criminal Procedure before a given court formation.

4. Point 1 [above] shall apply to judgments issued with the participation of judges of the Disciplinary Chamber established at the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.”

37 . On 28 January 2020 the Constitutional Court examined a request made by the Speaker of the Sejm on a conflict of competence between the Sejm and the Supreme Court and between the President of Poland and the Supreme Court. On the above date the Constitutional Court issued an interim measure in which it suspended the enforcement of the Supreme Court ’ s resolution of 23 January 2020 and suspended the prerogative of the Supreme Court to issue resolutions concerning issues of national or international law.

(a) United Nations

38 . The Special Rapporteur on the independence of judges and lawyers undertook an official visit to Poland from 23 to 27 October 2017. The report of 5 April 2018 on his mission to Poland contains findings relevant for the present case in §§ 63-70 and 85.

(b) OSCE

39 . OSCE Office for Democratic Institutions and Human Rights prepared Final opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain Other Acts of Poland of 5 May 2017 at the request received from the Chairperson of the NCJ.

(c) Council of Europe

40 . The following documents are relevant in the context of the present case:

(i) Committee of Ministers

41 . Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010.

(ii) Venice Commission

42 . Report on the Independence of the Judicial System, Part I: the Independence of Judges, adopted by the Venice Commission at its 82 nd Plenary Session (Venice, 12-13 March 2010), § 32;

43 . Opinion on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts adopted by the Venice Commission at its 113 th Plenary Session (Venice, 8-9 December 2017, CDL-AD(2017)031), §§ 15-31.

44 . Joined Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on Amendments to the Law on the Common Courts, the Law on the Supreme Court, and some other laws of 16 January 2020 (Opinion No. 977 / 2019; CDL-PI(2020)002).

(iii) Commissioner for Human Rights

45 . In his letter of 31 March 2017 to the Speaker of the Sejm, the Council of Europe ’ s Commissioner for Human Rights expressed his concerns about the bill on Amendments to the Act on the NCJ.

COMPLAINTS

1. All the applicants complain under Article 6 of the Convention that they had their cases examined by the Chambers of the Supreme Court which did not constitute an “independent and impartial tribunal established by law” as they were composed of judges recommended by the NCJ. They point to the procedure initiated by the Supreme Court before the Court of Justice of the European Union.

2. The second and the third applicants additionally complain of a breach of their right to a fair trial in that the NCJ, which dealt with their cases, was not an independent and impartial authority. They point to various factual, procedural and legal controversies around the NCJ. In particular: it recommended judges to the Supreme Court in spite of the decision of the Supreme Administrative Court of 27 September 2018 suspending this procedure; the legality of the procedure for election of members of the NCJ had not been verified; the conduct of the members of the NCJ at the sessions at which their candidatures were examined showed their arbitrariness and lack of impartiality.

COMMON QUESTIONS

1. Was the court which dealt with the applicants ’ cases a “tribunal established by law” as required by Article 6 § 1 of the Convention?

2. Was the court which dealt with the applicants ’ cases independent and impartial, as required by Article 6 § 1 of the Convention?

Reference is made in particular to the fact that the applicants ’ cassation appeals were examined by, respectively, the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs of the Supreme Court:

- constituted on the basis of the Law of 8 December 2017 on the Supreme Court;

- composed of judges appointed in the procedure established by the Law of 8 December 2017 Amending the Act on the National Council of the Judiciary.

CASE-SPECIFIC QUESTION (appl. no 43447/19)

3. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case?

CASE-SPECIFIC QUESTIONS ( appls . nos. 49868/19 and 57511/19)

3. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?

4. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Reference is made to the fact that the applicants ’ case was examined by the National Council of the Judiciary which, according to the applicants, did not offer guarantees of independence and impartiality.

APPENDIX

List of applications