CONCURRING OPINION OF JUDGE WOJTYCZEK

Although I agree with the outcome in the instant case, I have reservations concerning the reasoning.

The weight of the instance case stems from the fact that it encompasses the most important aspects of the reforms of the judiciary in Poland and therefore provides an opportunity to clarify in a comprehensive and systemic manner almost all the important questions linked to those reforms.

1.1. In the instant case, the Court decided to apply the test devised in the judgment in Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, 1 December 2020). This test was devised to deal with some types of irregularities in the appointment of judges but is not really adapted to a situation such as that in the instant case where the problems with the Disciplinary Chamber are multidimensional and concern many other issues such as its organisation and functioning.

1.2. According to the methodology devised in Guðmundur Andri Ástráðsson , the first question to be addressed is whether there was a manifest breach of domestic law . To answer this question one has, first and foremost, to identify and state with precision one or more legal rules which were breached. It is impossible to establish a breach of the law without explaining which legal rules were breached. I note that such a legal rule was clearly identified in the case of Xero Flor v. Poland (no. 4907/18, § 277, 7 May 2021).

The issue is important for the determination of the scope of the case, its legal consequences and the correct execution of the judgment (see below, point 2).

1.3. In its judgment in the case of Guðmundur Andri Ástráðsson (cited above), the Court, when applying the first element of the test (whether there had been a manifest breach of domestic law) addressed the issue in one paragraph. This was fully convincing. The reasoning in the instant case is self-contradicting on this question. It takes thirty-nine paragraphs to show that there was a breach of domestic law and that this breach was manifest. A breach which requires thirty-nine paragraphs of reasoning does not appear manifest.

1.4. The Court seeks to proceed upon the basis of the following disclaimer (paragraph 231, see also paragraph 259):

“The Court’s task in the present case is therefore not to resolve the existing conflict of opinions as to the application and interpretation of the domestic law or to substitute itself for the national courts in their assessment of the applicable provisions ...”

Nonetheless, in the circumstances of the instant case there has been no option other than to do the exact opposite and in fact the Court has resolved this conflict (see, for instance, paragraph 262).

1.5. The most important argument for finding a breach of domestic law is presented in paragraphs 237, 238 and 239. The Court attaches crucial importance to the Constitutional Court’s judgment of 18 July 2007 (K 25/07) and the dicta contained therein.

The judgment of 18 July 2007 (K 25/07) decided the question whether some newly introduced provisions, prohibiting the concurrent holding of certain positions in the judiciary together with membership of the National Council of the Judiciary (NCJ), were compatible with the Constitution. The Constitutional Court did not have to decide the issue of how the members of the NCJ should be elected. The view that, under the Constitution, judges sitting on the NCJ had to be elected by judges was a mere obiter dictum . The issue was not examined in depth and no argument was provided in support of that view, which is understandable because at that time no one argued that another interpretation of Article 187 § 1 point 2 of the Constitution was possible. Until 2016 there was broad agreement in Poland that judges who were elected to the NCJ should be elected by fellow judges. The question whether this is the only possible interpretation of Article 187 § 1 point 2 of the Constitution has not really been asked and was certainly not in issue at that time.

In paragraph 237, the Court states the following:

“... this justification alone cannot be seen as sufficient to substantiate the Constitutional Court’s complete reversal of its previous case-law without being based, as emphasised above, on a duly conducted assessment, weighing in the balance the competing interests at stake, as required under the Convention (see paragraph 230 above).”

It is difficult to see here a “complete reversal of its previous case-law”. As stated above, there was a view expressed by the Constitutional Court as an obiter dictum but it would be difficult to refer to it as case-law on the issue.

In paragraph 238 the Court further states as follows (emphasis added):

“In this connection, the Court observes that, apart from its statement of dissent that ‘the Constitutional Court in its current composition does not agree with the [Constitutional Court’s] position in the judgment [of 18 July 2007] that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges’, the Constitutional Court did not engage substantively with legal arguments contained in the earlier ruling. While it is true that the judgment was given after the composition of the Constitutional Court had changed following the December 2015 election of five new judges (for factual details see the information on the election process in Xero Flor w Polsce sp. z o.o. v. Poland , no. 4907/18, §§ 8-35, 7 May 2021 (not yet final); see also paragraph 112 above), this by itself could not serve as a ground for creating a new and divergent interpretation of the Constitution. Nor should it be an obstacle for the Constitutional Court judges to give convincing reasons – or explain specific legal considerations – for their departure from the final judgment, universally binding in its application, given by their predecessors, a judgment which had been in force for the previous ten years (see also Article 190 of the Polish Constitution cited in paragraph 59 above) .”

If I understand this part of the reasoning correctly, the Constitutional Court can still cure the flaws of its judgment of 20 June 2017 (K 5/17 ), provided that: (i) it gives stronger arguments for departing from the view expressed in the judgment of 18 July 2007 (K 25/07), balancing the competing interests in the light of Convention standards (see below point 1.8), and (ii) the bench is composed of judges whose election is not contested.

The approach developed in the reasoning is problematic and misses the most important point. The problem is not that the Constitutional Court in 2017 departed from an earlier judgment without giving sufficient reasons for this, but lies in the fact that it decided a crucial constitutional question while providing weak arguments in support of its view. Had the judgment of 18 July 2007 not been delivered, the problem would have been the same.

The Constitutional Court did not engage substantively with legal argument contained in the earlier ruling because there were no arguments therein on the issue of the election of judges to the NCJ. Moreover, although the judgments of the Constitutional Court must be reasoned – and this legal obligation should be understood as “duly reasoned” – in the domestic legal system there is no legal rule requiring that the domestic courts, while departing from views expressed in earlier case-law, should provide specific reasons for the departure as such. I would add that in the Polish legal system case-law is not a source of law, the Polish courts do not feel bound by earlier case-law and it is not uncommon for them to depart from views expressed in earlier judgments or decisions, without providing any deeper justification for such departure.

The argument that the Constitutional Court departed from a “final judgment, universally binding in its application” is based upon a misunderstanding of the domestic law. The binding force of a Constitutional Court judgment is limited to the operative part. As explained in legal scholarship, relying on domestic case-law, “the attributes of final character and universally binding force do not pertain to the reasoning of a judgment” (L. Garlicki, “Artykuł 190”, in Konstytucja RP. Komentarz , L. Garlicki (ed.), Warsaw, Wydawnictwo Sejmowe 2007, vol. 5, par. 6; similarly, A. Mączyński, J. Podkowik, “Art. 190”, in Konstytucja RP , M. Safjan, L. Bosek (eds), vol. 2, Warsaw C.H. Beck 2016, pp. 1189-1190). A mere dictum expressed in the reasoning is not binding. The binding force of the judgment of 18 July 2007 (K 25/07), as defined in Article 190 of the Constitution, has not been called into question.

I further note that the previous domestic case-law is placed at the centre in the instant case, whereas well-established domestic case-law has been implicitly found irrelevant in the case of Broda and Bojara v. Poland (see my separate opinion appended thereto, especially point 1.2).

1.6. In paragraph 274 the Court expresses the following view (emphasis added):

“In view of the foregoing, the Court finds that by virtue of the 2017 Amending 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 achieved a decisive influence on the composition of the NCJ.”

This wording implies that the right in question was not afforded by the Constitution itself in Article 187 § 1 point 2 and in any event makes it quite clear that the alleged violation of this constitutional provision does not appear manifest for the Court.

1.7. The Court’s reasoning invokes various international standards, sometimes stemming from sources which have not been clearly identified, as well as opinions of different international bodies. This reinforces the impression that the Constitution as such allows different legitimate interpretations in respect of the body electing judicial members to the NCJ and that only international standards restrict this freedom. In other words, it seems that had Poland not been bound by the Convention for the Protection of Human Rights and Fundamental Freedoms, different interpretations of the Constitution would have been possible. I note that such an approach considerably weakens the argument. Moreover, the opinions of different international bodies concern compliance with international standards and these bodies have no mandate to interpret the Polish Constitution.

1.8. In the case of Guðmundur Andri Ástráðsson (cited above, § 251), the Court required the domestic courts to carry out a balancing exercise in the assessment of the legal consequences of a manifest breach of the law:

“However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its assessment for that of the national courts (see, mutatis mutandis , Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). Accordingly, while the national courts have discretion in determining how to strike the relevant balance, as mentioned in paragraph 243 above, they are nevertheless required to comply with their obligations deriving from the Convention when they are undertaking that balancing exercise.”

Under this approach, the balancing exercise takes place only once the manifest breach of domestic law has been established.

In the instant case, the Court – without providing any reasons for such a departure from earlier case-law – modifies the approach devised in Guðmundur Andri Ástráðsson . The requirement of balancing in the light of the Convention standards is moved to a different – earlier – stage, the establishing of a manifest breach of domestic law (see in particular paragraphs 230, 231, 239, 259, 262). This reference to a “balancing exercise” further reinforces the impression that the breach of domestic law was not manifest and that had Poland not been bound by the Convention for the Protection of Human Rights and Fundamental Freedoms, different interpretations of the Constitution would have been possible.

1.9. The Court’s reasoning states that there was a manifest breach of the law (paragraph 264), but it remains unclear which legal rule(s) was (were) breached. Was it the rule requiring that the Constitutional Court, while departing from earlier case-law, engage substantively with legal arguments contained in earlier rulings (paragraph 238)? Was it Article 187 § 1 point 2 of the Constitution (paragraphs 233-244)? “European standards” (paragraph 240)? Article 6 of the Convention (paragraphs 260 and 264)? The general requirement to carry out a balancing of competing interests in the light of Convention standards (paragraphs 230, 231, 239, 259, 262)? The principle of the separation of powers and the independence of the judiciary (paragraph 239 and 276)? If so, is this the separation of powers and the independence of the judiciary as laid down in the Polish Constitution or as understood under the Convention or other international instruments? Or, maybe, has there been a breach of all, or at least most of, the rules and principles mentioned above?

Moreover, the various references to the general principle of the independence of the judiciary bring us to the core of the right to an independent and impartial tribunal, guaranteed by Article 6, an issue addressed separately in paragraphs 283-284.

1.10. To sum up this part of my opinion, the Court’s reasoning, when applying the test devised in the Guðmundur Andri Ástráðsson judgment, is confused.

In my view, the applicant’s right protected by Article 6 was violated for the reasons explained in the Resolution of the formation of the combined Civil Chamber, Criminal Chamber, and Labour Law and Social Security Chamber, dated 23 January 2020, BSA I-4110-1/20 (paragraph 45) as well as in the Supreme Court’s judgment of 5 December 2019, III PO 7/18. Given several factors indicated therein and taken cumulatively, the Disciplinary Chamber does not fulfil the criteria of an independent tribunal set forth in Article 6.

2.1. The rule of law, highlighted in the Preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms, requires legal certainty. When deciding cases concerning structural problems and fundamental constitutional questions in the respondent States, the Court bears a special responsibility for upholding the rule of law and especially enhancing legal certainty. The judgments of the Court in the relevant cases should be worded in such a way that they take into account their possible consequences for individuals and especially any risk of legal uncertainty they may entail. Therefore, the Court should always be guided by the requirement to provide clear and precise guidelines for the States concerning the steps required to restore the Convention standards and to exclude divergent views as to their meaning and interpretation.

2.2. The Court’s reasoning entertains ambiguity on two crucial points.

2.2.1. Firstly, it is not clear whether the breach of the law established by the Court concerns only the Disciplinary Chamber or all judges in Poland appointed upon nomination by the new NCJ from the time it was set up in 2018. In some paragraphs, the Court limits the scope of the case to the Disciplinary Chamber (see in particular 225, 226 and 280) and uses arguments specific to that Chamber (for instance 249, 255, 256, 264). They will be invoked by those who argue that the scope of the judgment is limited to the Disciplinary Chamber.

Other parts of the reasoning concentrate on the new mode of election to the NCJ, which concerns appointments to other chambers of the Supreme Court and to ordinary, military and administrative courts. They will be invoked to support the view that the scope of the judgment relates to all judicial appointment proceedings in Poland in which the NCJ, established in 2018, has been involved.

I regret that the bench was not able to take a clear stance on this issue. The ambiguity will entail uncertainty for thousands of persons whose cases have been decided with the participation of judges appointed upon nomination by the new NCJ created in 2018.

2.2.2. Secondly, the reasoning remains silent on the question of the consequences of the instant judgment for the applicant and – much more importantly – for other persons whose cases have been decided by the Disciplinary Chamber or by other tribunals – with the participation of judges appointed upon nomination by the new NCJ. This will also trigger disputes concerning the possible re-opening of the proceedings not only in the instant case but also in other similar cases. Moreover, the two uncertainties will amplify each other.

2.3. Concerning the second of the above-mentioned problems, I note that the Court has addressed the issue of the legal consequences of its judgments in the judgment delivered in Proceedings under Article 46 § 4 in the Case of Ilgar Mammadov v. Azerbaijan (no. 15172/13, 29 May 2019). The Court stated, in particular, as follows (at § 162, emphasis added):

“According to the Court’s established case-law the execution process concerns compliance by a Contracting Party with its obligations in international law under Article 46 § 1 of the Convention. Those obligations are based on the principles of international law relating to cessation, non-repetition and reparation as reflected in the ARSIWA ... They have been applied over the years by the Committee of Ministers and currently find expression in Rule 6.2 of the Rules of the Committee of Ministers ...”

I further note Rule 6 § 2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements (adopted by the Committee of Ministers on 10 May 2006 at the 964th meeting of the Ministers’ Deputies and amended on 18 January 2017 at the 1275th meeting). This provision is worded as follows:

“When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:

a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and

b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:

i. individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;

ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.”

I also note the following view, expressed in the above-mentioned case of Guðmundur Andri Ástráðsson (at § 314, emphasis added):

“The Court further considers that in accordance with its obligations under Article 46 of the Convention, it falls upon the respondent State to draw the necessary conclusions from the present judgment and to take any general measures as appropriate in order to solve the problems that have led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the Court stresses that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Icelandic law.”

I note that this view has been expressed in the context of criminal proceedings. It should apply a fortiori to civil proceedings, as in the instant case (see the finding in paragraph 185).

Under the Convention, the obligation to take individual measures and provide reparation is limited to the individual case of a specific applicant. The States have the obligation to prevent new violations of the Convention but there is no general Convention obligation to provide individual redress for past violations to persons in similar situations who did not lodge applications with the Court and, in particular, no general obligation to re-open proceedings in similar cases. Obviously, the States are always free to extend the scope of individual reparation.

2.4. To sum up this part of my opinion, I would like to stress that the Court’s reasoning, as worded, will exacerbate the existing problems in the domestic legal system by adding to them the issue of the exact meaning and scope of the instant judgment. This will entail additional problems which could easily have been avoided by careful wording of the reasoning. Fundamental legal issues of the utmost importance for individuals which could have been fully clarified in the instant case will have to wait in order to be clarified by the Court in future cases.

In the instant case, the Court has focused exclusively on general and structural issues concerning the judiciary. The situation of the applicant was presented in five brief paragraphs (54-58) in the “Facts” part and assessed in two paragraphs (288 and 291) in the “Law” part . It would have been useful to integrate into the analysis the perspective of the applicant and to look at judicial independence not only from the viewpoint of objective law but also from the perspective of the parties to the domestic judicial proceedings, with their individual rights, interests and legitimate expectations.

[1] The translation is based on the English version of the judgment published on the Supreme Court website, edited by the Registry of the Court: http://www.sn.pl/aktualnosci/SiteAssets/Lists/Komunikaty_o_sprawach/AllItems/III-PO-0007_18_English.pdf

[2] The translation is based on the English version of the judgment published on the Supreme Court website, edited by the Registry of the Court: http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/AllItems/BSA%20I-4110-1_20_English.pdf

[3] Section 11(3) and (4) in conjunction with section 13(1) an (2) as well as section 11(2) in conjunction with section 12(1) of the 2011 Act on the NCJ (see paragraph 62 above).

[4] The translation is based on the text available on the Constitutional Court’s website, edited by the Registry.

[5] Adopted by participants from European countries and two judges’ international associations, meeting in Strasbourg on 8-10 July 1998 (meeting organised under the auspices of the Council of Europe), endorsed by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12-14 October 1998, and again by judges and representatives from Ministries of Justice from 25 European countries, meeting in Lisbon on 8-10 April 1999.

[6] For the legislative process and the President’ proposal of the draft Act on the NCJ see paragraphs 8 and 10 above.

[7] Editorial note: see paragraph 152 above.