Information Note on the Court’s case-law 256

November 2021

Dolińska - Ficek and Ozimek v. Poland - 49868/19 and 57511/19

Judgment 8.11.2021 [Section I]

Article 6

Civil proceedings

Article 6-1

Tribunal established by law

Manifest breaches in appointment of judges to newly established Supreme Court’s Chamber of Extraordinary Review and Public Affairs following legislative reform: violation

Facts – The applicants, who are both judges, applied for posts at higher courts in late 2017 and early 2018 respectively, but did not receive a recommendation from the National Council of the Judiciary (NCJ). Their appeals against the relevant NCJ resolutions (on the non-recommendation of their candidature) were examined and dismissed by the newly established Chamber of Extraordinary Review and Public Affairs of the Supreme Court, one of the new two chambers created following the reorganisation of that court effected through the 2017 Amending Act on the NCJ and the 2017 Act on the Supreme Court as part of the large-scale legislative reform of the Polish judicial system initiated by the government in 2017. The NCJ’s judicial members were now elected by Sejm . Pursuant to the relevant domestic provisions read as a whole, judges were appointed to all levels and types of courts, including the Supreme Court, by the President of Poland following a recommendation of the NCJ which the latter issued after a competitive selection procedure in which it evaluated and nominated the candidates.

The applicants complained that the appointment of the judges of the Chamber of the Extraordinary Review and Public Affairs by the President of Poland upon the NCJ’s recommendation was in manifest breach of the domestic law and the principles of the rule of law, separation of powers and the independence of the judiciary.

Law – Article 6 § 1: The Court’s task in the present case was to assess the circumstances relevant for the process of appointment of judges to the Chamber of Extraordinary Review and Public Affairs, after the entry into force of the 2017 Act on the Supreme Court establishing that Chamber, and not to consider the legitimacy of the reorganisation of the Polish judiciary as a whole.

The Court examined whether the hearing of the applicants’ cases by the Chamber of Extraordinary Review and Public Affairs gave rise to a violation of their right to a “tribunal established by law” in the light of the criteria laid down in Guðmundur Andri Ástráðsson v. Iceland [GC] and also applied in Reczkowicz v. Poland . In reaching its conclusions, the Court took into account in particular the rulings of the Polish Supreme Court and the Court of Justice of the European Union, as well as multiple reports and assessments by European and international institutions.

(a) Whether there was a manifest breach of the domestic law – the alleged breach was twofold:

(i) The alleged lack of independence of the NCJ from executive and legislative powers

The Court followed the reasoning and methodology applied in Reczkowicz v. Poland, the alleged violation originating in the same fundamental breach of the domestic law. As in that case, it held that there had been a manifest breach of domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. That was because the NCJ, as established under the 2017 Amending Act on the NCJ, did not provide sufficient guarantees of independence from the legislative or executive powers.

(ii) The President of Poland’s appointment of judges to the Chamber of Extraordinary Review and Public Affairs, despite the stay of the implementation of NCJ resolution no. 331/2018 pending judicial review

On 27 September 2018 the Supreme Administrative Court had issued an interim order staying the implementation of NCJ resolution no. 331/2018 of 28 August 2018 - which had recommended candidates for twenty posts of judges in the Chamber of Extraordinary Review and Public Affairs-, pending its examination of the appeal by a number of non-recommended candidates contesting the legality of the resolution. Notwithstanding, the stay and the fact that the appeals were pending, the President of Poland proceeded with the appointment of the candidates.

The Court fully subscribed to the views expressed by the Polish Supreme Court, the CJEU and the Advocate General, concerning the relevant flagrant breaches of the domestic law. In this connection, it reiterated one of the fundamental aspects of the rule of law was the principle of legal certainty, which required, inter alia, that where the courts had finally determined an issue, their ruling should not be called into question. This applied, by definition, to the implementation of judicial decisions on interim measures that remained in force until a final decision determining the case before a court had been given. To hold otherwise would mean rendering a binding, albeit transitional, judicial decision that was devoid of purpose and meaning. Furthermore, the Court had condemned, in the strongest terms, any attempts by the legislative or executive power to intervene in court proceedings, considering such attempts to be ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1. Whether such interventions had actually affected the course of the proceedings was of no relevance since, coming from the executive and legislative branches of the State, they revealed a lack of respect for judicial office itself and were such are capable of justifying fears as to the independence and impartiality of the courts concerned.

The State’s obligation to ensure a trial by an “independent and impartial tribunal” under Article 6 § 1 was not limited to the judiciary but also implied obligations on the executive, the legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they did not agree with them. Thus, the State’s respect for the authority of the courts was an indispensable precondition for public confidence in the judiciary and, more broadly, for the rule of law. For this to be the case, the constitutional safeguards of the independence and impartiality of the judiciary did not suffice. They must be effectively incorporated into everyday administrative attitudes and practices.

Conversely, in the present case the actions of the executive power in the process of appointment of judges to the Chamber of Extraordinary Review and Public Affairs had demonstrated an attitude which could only be described as one of utter disregard for the authority, independence and role of the judiciary. Those actions had been clearly taken with the ulterior motive of not only influencing the outcome of the pending court proceedings but also preventing the proper examination of the legality of the resolution that had recommended candidates for judicial posts and, in consequence, rendering judicial review of the resolution meaningless. They had been aimed at ensuring that the judicial appointments as proposed by the NCJ – a body over which the executive and the legislative authorities held an unfettered power – would be given effect even at the cost of undermining the authority of the Supreme Administrative Court, one of the country’s highest courts, and despite the risk of setting up an unlawful court. As such, the actions had been in flagrant breach of the requirements of a fair hearing within the meaning of Article 6 § 1 and were incompatible with the rule of law.

In order to assess fully the gravity of the breach thus committed, the Court considered in detail the functions performed by the Chamber of Extraordinary Review and Public Affairs, the scope of its jurisdiction and its general position within the administration of justice in Poland as well as the concerns about its extensive powers that had been raised at European level already before the 2017 Amending Act. Further, following the 2019 Amending Act the powers of the Chamber of Extraordinary Review and Public Affairs had been extended to cover all matters concerning the independence of the Polish judiciary, thus giving it uncircumscribed power in that regard and enabling it to protect the NCJ’s recommendations for judicial appointments by the President of Poland against any challenge.

Assessing all the circumstances as a whole, the Court concluded that the President of Poland’s appointment of all the judges to the Chamber of Extraordinary Review and Public Affairs upon NCJ resolution no. 331/2018, notwithstanding the ruling of the Supreme Administrative Court staying the implementation of that resolution, amounted to a manifest breach of the domestic law. Deliberate disregard of a binding judicial decision and interference with the course of justice, in order to vitiate and render meaningless a pending judicial review of the appointment of judges, could only be characterised as blatant defiance of the rule of law.

(b) Whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges undermined the very essence of the right to a “tribunal established by law” –

As in Reczkowicz v. Poland with regard to the Disciplinary Chamber of the Supreme Court, there had also been a manifest breach of domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Chamber of Extraordinary Review and Public Affairs of that court. That was because the recommendation of candidates for judicial appointment to the Chamber of Extraordinary Review and Public Affairs – a condition sine qua non for appointment by the President of Poland – had been entrusted to the NCJ, which, as established under the 2017 Amending Act, lacked sufficient guarantees of independence from the legislature and the executive.

By virtue of that Act, which deprived the judiciary of the right to nominate and elect judicial members of the NCJ – a right afforded to it under the previous legislation and recognised by international standards – the legislative and the executive powers, had achieved a decisive influence on the composition of the NCJ. The Act had practically removed not only the previous representative system but also the safeguards of independence of the judiciary in that regard enabling the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities had taken advantage – as shown, for instance, by the circumstances surrounding the endorsement of judicial candidates for the NCJ. This situation had been further aggravated by the subsequent appointment of judges to the Chamber of Extraordinary Review and Public Affairs by the President of Poland, carried out in flagrant disregard for the fact that the implementation of NCJ resolution no. 331/2018 recommending their candidatures had been stayed.

A procedure for appointing judges which, as in the present case, disclosed an undue influence of the legislative and executive powers on the appointment of judges was per se incompatible with Article 6 § 1 and as such, amounted to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed.

Thus, the breaches in the procedure for the appointment of judges to the Chamber of Extraordinary Review and Public Affairs were of such gravity that they impaired the very essence of the applicants’ right to a “tribunal established by law”.

(c) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts – There was no procedure under Polish law whereby the applicant could challenge the alleged defects in the procedure for the appointment of judges to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. Consequently, no remedies had been provided.

Overall : The Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which examined the applicants’ cases, was not a “tribunal established by law”.

Conclusion : violation (unanimously).

Article 41: EUR 15,000 to each applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Article 46: The violation of the applicants’ rights originated in the amendments to Polish legislation which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, thus systematically compromising the legitimacy of a court composed of the judges appointed in that way. In this situation and in the interests of the rule of law and the principles of the separation of powers and the independence of the judiciary, a rapid remedial action on the part of the Polish State was required. The Court refrained from giving any specific indications as to the type of individual and/or general measures that might be taken in order to remedy the situation and limited its considerations to general guidance. It therefore fell upon the respondent State to draw the necessary conclusions from the judgment and to take any individual or general measures as appropriate in order to resolve the problems at the root of the violations found by the Court and to prevent similar violations from taking place in the future.

(See also Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal summary ; Xero Flor w Polsce sp. z o.o. v. Poland , 4907/18, 7 May 2021, Legal Summary ; Reczkowicz v. Poland , 43447/19, 22 July 2021, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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