Legal summary

November 2023

Wałęsa v. Poland - 50849/21

Judgment 23.11.2023 [Section I]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Impartial tribunal

Independent tribunal

Reasonable time

Reversal by Supreme Court’s Chamber of Extraordinary Review and Public Affairs of final civil defamation judgment in applicant’s favour taken ten years earlier, following Prosecutor General’s extraordinary appeal: violation

Article 8

Article 8-1

Respect for private life

Reversal by Supreme Court’s Chamber of Extraordinary Review and Public Affairs of final civil defamation judgment in applicant’s favour taken ten years earlier, following Prosecutor General’s extraordinary appeal: violation

Article 46

General measures (pilot judgment)

Respondent State required to take rapid and adequate measures to address systemic and interrelated problems connected with the malfunctioning of domestic legislation and practice

Facts – The applicant is the former leader of the Solidarność (“Solidarity”) trade union, former President of Poland (1990-1995) and laureate of the Nobel Peace Prize in 1983. When a candidate in the 2000 presidential elections, the applicant made a “lustration declaration” – in the case of Poland this amounted to declarations by persons performing public duties around cooperation with the State security services from 1944 until 1990 – in which he stated that he had not collaborated with those agencies. The statement was confirmed by the domestic courts. In 2005 the Institute of National Remembrance confirmed he had not been a collaborator by giving him the status of “injured party”. This was widely reported in the media. The applicant successfully brought defamation proceedings against Mr Wyszkowski, a former friend and associate and member of the former anti-communist opposition, for statements that he had given to two major media outlets alleging that throughout the 1970s the applicant had collaborated with the security services. The defendant was made to publish an apology on television.

However, in January 2020 the Prosecutor General lodged an “extraordinary appeal”, a new type of appeal introduced under the 2017 Act on the Supreme Court, before the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (CERPA), on Mr Wyszkowski behalf, against the final judgment in the applicant’s suit to “to ensure compliance with the principle of a democratic State governed by the rule of law and implementing the principles of social justice”. In 2021 the CERPA reversed the final appeal judgment that had been in the applicant’s favour.

An application made by Mr Wyszkowski to the Court (no. 34282/12) complaining of a breach of Article 10 of the Convention on account of having been ordered to publish an apology was struck out of the Court’s list of cases following a unilateral declaration by the Government in 2021.

Law – Article 6 § 1:

(1) Right to an independent and impartial tribunal established by law –

(a) Whether the CERPA satisfies the standard of an “independent and impartial tribunal established by law” – Applying the criteria laid down in Guðmundur Andri Ástráðsson v. Iceland [GC] and for the same reasons as in Dolińska-Ficek and Ozimek v. Poland , the Court concluded that the CERPA which had examined the extraordinary appeal was not an “independent and impartial tribunal established by law”. In particular, in Dolińska-Ficek and Ozimek the Court had held that the grave irregularities in the appointment process of judges to the CERPA had compromised its legitimacy to the extent that, following an inherently deficient procedure for judicial appointments, it had lacked and continued to lack the attributes of a “tribunal” which had been “lawful” for purposes of Article 6 § 1. Further, on that account, it had found a violation of Article 6 § 1 as regards the right to an independent and impartial tribunal established by law.

(b) As regards the alleged lack of independence and impartiality on the part of one of the judges sitting in the CERPA – The applicant had unsuccessfully asked for the exclusion of seventeen judges currently sitting in the CERPA submitting that their appointment procedure raised serious doubts from the point of view of the rule of law. The judges included Mr Stępkowski, the judge rapporteur, in relation to whom the applicant had stressed that his doubtful status as a judge was the object of proceedings before the Court of Justice of the European Union (“CJEU”) and alleged that his past (pre-appointment) activities had demonstrated extreme and fundamentalist views adversely affecting his impartiality; and Mr Księżak, who would subsequently deal, sitting as a single judge, with the applicant’s request for exclusion.

The applicant’s request had been dismissed in so far as it related to Judge Stępkowski and rejected in its remainder by the judge directly concerned by the applicant’s challenge, as the procedure for his appointment and his own independence and impartiality had been at stake. As the judge had given no reasons for his decision, the Court was unable to ascertain the legal basis for and the considerations behind the decision and whether, and if so how, the issue of Judge Stępkowski’s alleged lack of individual independence and impartiality had been addressed.

The CERPA, which lacked the attributes of an “independent and impartial tribunal established by law”, had exclusive competence to deal with any motion for the exclusion of judges involving a plea of lack independence of a judge or a court, including – as in the present case where the motion was directed against them personally. In effect, the powers of the CERPA covered all matters concerning the independence of the Polish judiciary, thus giving it uncircumscribed power in that regard and enabling it to protect against any challenge the NCJ’s recommendations for judicial appointment by the President of Poland.

The Court found it unacceptable from the point of view of the fair trial standards that in the present case the ruling had been given by the person who, by virtue of the fundamental principle nemo iudex in causa sua , should have been prevented from dealing with the matter. That was not an isolated incident but was consistent with the applicable law.

In consequence, the Court considered the issue of whether Judge Stępkowski had displayed any bias against the applicant as absorbed within the finding of the breach of Article 6 § 1 established above.

Conclusion: violation (unanimously).

(2 ) Principle of legal certainty –

(a) General features of the extraordinary appeal and their assessment in Convention terms – The Court found that the extraordinary appeal procedure as currently operating in Poland was incompatible with the fair trial standards and the principle of legal certainty under Article 6 § 1 on account of several defects. In particular:

(i) Public bodies authorised by law to lodge an extraordinary appeal – The data produced by the Government demonstrated an imbalance between the evidently larger scale on which the Prosecutor General contested final judicial decisions and the limited recourse to the impugned remedy by the Polish Commissioner for Human Rights and other bodies authorised to lodge such an appeal under the 2017 Act on the Supreme Court.

In those circumstances, entrusting the Prosecutor General – an active politician at the same time the Minister of Justice wielding considerable authority over the courts and exerted a strong influence on the NCJ -– with the unlimited power to contest virtually any final judicial decision created more than a hypothetical risk that the legal remedy, which was in theory designed to protect the fundamental rights of an individual, might in practice become a tool of political supervision over court judgments by the executive.

(ii) Grounds for lodging an extraordinary appeal – Serious concerns as to the compatibility of section 89(1) of the 2017 Act on the Supreme Court which set out the grounds for lodging an extraordinary appeal with the rule of law had been raised already before its coming into force by various European institutions, including the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR), the Venice Commission, and the European Commission. Since then, criticism had also been voiced by the Council of Europe’s Group of States against Corruption (GRECO) and its Parliamentary Assembly (PACE), with the latter warning that the number of applications against Poland before the Court might considerably increase as a result.

Endorsing those opinions, the Court was particularly concerned that the vague terms used in that provision to describe the conditions for lodging an extraordinary appeal, such as the need to ensure compliance with the principles of “social justice” resulted in a lack of clarity as to its meaning for the purposes of court proceedings and its interpretation was therefore subject to a broad degree of discretion. That opened the door to possible arbitrariness, misuse of the legal remedy and abuse of process. Consequently, the impugned provision did not satisfy the Convention requirements for the quality of the “law”. Moreover, a final decision might be appealed against if there was “an obvious contradiction between significant findings of the court and the content of evidence collected in the case”. In practical terms, that meant that in civil cases even many years after the events the CERPA might act as the tribunal of fact at the third or fourth level of jurisdiction, even though the lower courts had established the facts on the evidence directly taken or heard before them. That undermined both the stability of final judicial decisions and the individual’s legitimate expectation to be protected by law from repeated litigation of a matter that had already been finally determined, thus revealing the extraordinary appeal as an ordinary appeal in disguise, whereby a fresh examination of the case could be obtained, contrary to the res judicata principle.

(iii) Time-limits for lodging an extraordinary appeal – Although the general time-limit for lodging an extraordinary appeal, was already very long - five years from when the decision became final -, it did not bind the Prosecutor General and the Commissioner for Human Rights who had both been granted additional exceptional powers, even being allowed to lodge an extraordinary appeal against final judicial decisions that pre-dated the Act’s entry into force, going as far back as decisions given from 17 October 1997. For the Court, that was simply inconceivable; it was incompatible with the rule of law, and notably with the principles of legal certainty, res judicata and foreseeability of the law.

(iv) Powers and characteristics of the adjudicating body – The extraordinary appeals were examined by the CERPA, which had exclusive competence in that respect. The CERPA had powers much similar to those of a court of cassation; however, in cases where a contradiction between significant findings of the court and the content of evidence was alleged, it might also act as a tribunal of fact. Having regard to the conclusions as to the broadly defined grounds for an extraordinary appeal, its operation as an ordinary appeal in disguise and time-limits allowing the Prosecutor General and the Commissioner to challenge decisions that became final before the entry into force of the Act, the CERPA’s powers – which practically allowed it to extinguish the entirety of finally terminated proceedings – raised serious concerns from the point of view of the principle of legal certainty. Furthermore, as already established, the CERPA lacked and continued to lack the attributes of an “independent and impartial tribunal established by law”. As such, the examination of an extraordinary remedy which might lead to far-reaching, adverse and often irreversible legal consequences for the individual concerned, including the wiping-out of the final judicial decision his or her case, and which went against the principle of legal certainty, had being entrusted to a body which could not be considered a “tribunal” in Convention terms. Such a situation, currently perpetuated by the Constitutional Court’s continued non-compliance with the Convention in a series of recent judgments attempting to undermine and prevent the execution of the Court’s judgments relating to the independence of the judiciary and the defective procedure for judicial appointments, was causing a general systemic problem within the Polish judicial system.

(b) The extraordinary appeal lodged in the applicant’s case and the CERPA’s judgment – The facts of the applicant’s case constituted an exemplification of the deficiencies of the extraordinary appeal procedure.

All the elements before the Court indicated that the extraordinary appeal had been used by the Prosecutor General as an “ordinary appeal in disguise”, whose aim had been to have the same facts and subject-matter re-examined in fresh proceedings and to give the defendant in the original proceedings, on whose behalf he had been acting, another chance to have his civil liability redetermined after having lost his case. When he had lodged his extraordinary appeal, nine years had passed since the final judgment in the applicant’s case, after it had been examined at six levels of jurisdiction (three times at first instance and three times on appeal) over some five and a half years and following two first-instance judgments in the applicant’s favour, one in Mr Wyszkowski’s favour, two remittals on appeal and the final judgment partly granting the applicant’s claim. It could not therefore be said that the case had not been thoroughly examined from various points of view or that, given the repeated examination of the case and duration of the proceedings, the defendant had not had sufficient time or opportunity to exercise his procedural rights, present evidence or otherwise make his case. The defendant’s subsequent repeated attempts to challenge the final judgment had been unsuccessful.

The CERPA had considered that the judgment had imposed severe and, for the purposes of the Constitution and Article 10 of the Convention, disproportionate sanctions on Mr Wyszkowski, even though only sanction had been as the apology that he had been ordered to publish.

The Court rejected the Government’s argument that the decision to allow the extraordinary appeal had been to resolve the issues raised in Mr Wyszkowski’s application to the Court as a form of enforcement of its unilateral declaration and the Court’s strike-out decision; the extraordinary appeal had been granted well before the striking-out, the Court had not been aware at the time of that procedure, its outcome and the fact that Mr Wyszkowski had borne no financial or other sanction.

The Court could not discern any compelling circumstances militating in favour of contesting the final judgment in the applicant’s case. In particular, it could not be said that the extraordinary appeal had served to correct any fundamental defects of the proceedings before the lower courts, such as abuse of process, manifest errors in application of substantive law, serious breaches of court procedure leading to a miscarriage of justice. The Court reiterated that under Article 6 no party was entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case and that the mere possibility of there being two views on the subject was not a ground for re-examination and reversal of the final judgment.

The applicant’s case could not be separated from its political background and the political context in Poland at the time and the long-lasting and public conflict between the applicant and the leadership of the PiS party and the United Right alliance government. The most severe accusations of collaboration with the communist secret service– which had been at the heart of the proceedings in the applicant’s defamation case – had come from the PiS party and its supporters, and the Prosecutor General himself, with Mr Wyszkowski playing a key role in making those accusations public. It was also obvious that he had close political connections with the leadership of the PiS and the United Right alliance Government.

In the Court’s view, it was one thing to hold strong and hostile opinions on one’s political opponents, yet another to pursue those opinions through the State judicial mechanism, using one’s exceptional statutory powers to challenge the finality of a judgment that was unfavourable to a political ally. It was also telling had been the Prosecutor General’s public expression of his deep satisfaction with the outcome of the proceedings before the CERPA.

The circumstances of the present case indicated the abuse of the legal procedure by the State authority in pursuance of its own political opinions and motives and there had been no circumstances of a substantial and compelling nature that would justify the departure from the principle of res judicata .

Conclusion: violation (unanimously).

Article 8:

The applicant was recognised in Poland and internationally as one of the most renowned figures in Poland’s contemporary history for his leadership of the Solidarity trade union, underground anti-communist activities for which he had been awarded a Nobel Peace prize, and his contribution to the dismantling of communism in Central and Eastern Europe in 1989-1990. Against that background, it was evident that Mr Wyszkowski’s statements accusing the applicant of paid collaboration with the communist secret service in the 1970s – statements which had been the central issue in the impugned proceedings – had affected the very core of what was commonly considered his lifelong achievements. Consequently, the reversal of the final judgment by the CERPA in his case had adversely affected the applicant’s private life to a significant degree. Article 8 was thus applicable and there had been an interference with his right to respect for his private life. Relying on the violations found under Article 6 § 1 the Court found that interference had not been “in accordance with the law” as it had emanated from the decision of a body which had not been a “lawful” court under the Convention, had not been based on a “law” that afforded the applicant proper safeguards against arbitrariness and had disclosed abuse of process on the part of the Prosecutor General.

Conclusion: violation (unanimously).

Article 46:

(1) Application of the pilot-judgment procedure – There had already been a series of judgments of the Court concerning the judicial reform in Poland initiated in 2017. As noted by the Court in Grzęda v. Poland [GC], the whole sequence of events – including in particular the laws on reorganisation of the judiciary in Poland – had vividly demonstrated that successive judicial reforms had been aimed at weakening judicial independence. As a result, the judiciary – an autonomous branch of State power – had been exposed to interference by the executive and legislative powers and thus substantially weakened. From the delivery of the judgment in Xero Flor w Polsce sp. z o.o. v. Poland in May 2021, up to the date of adoption of the present judgment, the Court had issued ten (of which nine were final) judgments relating to various aspects of the judicial reform in Poland in which it had found a violation of Article 6 § 1 on various grounds. Most of those judgments concerned a breach of the right to an independent and impartial tribunal established by law on account of the new NCJ’s involvement in the procedure for judicial appointments to the Supreme Court.

At present, there were 492 cases on the Court’s docket (of which 202 communicated) concerning the judicial reform in Poland. The vast majority concerned the alleged breach of the right to an “independent and impartial tribunal established by law” on account of the applicants’ cases having been heard by formations of the Supreme Court, ordinary courts or administrative courts including judges appointed to their office in the defective procedure involving the NCJ as established under the 2017 Amending Act on the NCJ.

Although only a few applications concerning the operation of the extraordinary appeal were currently pending, the double violation of the right to a fair hearing under Article 6 § 1 established in the present case disclosed a serious systemic situation, capable of continually affecting numerous persons. That situation consisted in several interrelated systemic problems in the domestic law and practice which either separately or in conjunction resulted, or might result in the future, in a violation of the fair trial right guaranteed by Article 6 § 1. In sum those were as follows:

– the defective procedure for judicial appointments involving the NCJ as established under the 2017 Amending Act which inherently and continually affected the independence of judges so appointed;

– the resulting lack of independence of the CERPA;

– the exclusive competence of the CERPA to deal with any motion for the exclusion of judges involving a plea of lack independence of a judge or a court, including – as shown by the facts of the present case – the situation where the motion is directed against them personally.

– the defects of the extraordinary appeal procedure as established in the present judgment;

– the exclusive competence of the CERPA to examine extraordinary appeals; that created a situation where the initial violation of Article 6 § 1 was being continually compounded by the subsequent one because the power to decide on a legal remedy incompatible with the fair trial standards and the principle of legal certainty under Article 6 § 1 had been entrusted with a body which was not a lawful tribunal for the purposes that provision, a situation which was inconceivable from the point of view of the rule of law.

The above interrelated systemic problems thus entailed repeated breaches of the fundamental principles of the rule of law, separation of powers and the independence of the judiciary. That state of continued non-compliance with the Convention had been perpetuated by the Constitutional Court’s recent judgments. In parallel, that court had delivered judgments contesting the primacy of EU law and the binding effect of the CJEU judgments which were currently the object of the infringement procedure initiated by the Commission.

In view of the grave concern expressed by the Committee of Ministers in June 2023 (decision taken at its 1468th Meeting of 5-7 June 2023 in the framework of the execution of the judgments of the so-called “Reczkowicz group”), regarding the Polish authorities’ persistent reliance on the Constitutional Court’s judgment of 22 March 2022 (no. K 7/21) to justify non-execution of Court judgments, and considering the rapid and continued increase in the number of applications concerning the independence of the judiciary in Poland and alleging, in particular, a breach of the right to an “independent and impartial tribunal established by law”, and the gravity of the impugned situation, the Court considered that the systemic problems identified called for urgent remedial measures.

The Court therefore applied the pilot-judgment procedure in the present case.

(2) General measures – To put an end to the systemic violations of Article 6 § 1, Poland had to rapidly take appropriate legislative and other measures to secure, in its national legal system, compliance with the requirements of an “independent and impartial tribunal established by law” and the principle of legal certainty. Given Poland’s lack of response to the guidance given in Dolińska-Ficek and Ozimek and Advance Pharma sp. z o.oit v. Poland and its conduct in the execution of the judgments concerning the independence of the judiciary, the Court gave more detailed indications as to general measures to be taken to put an end to those violations. Those included measures to address the defective procedure for judicial appointments, the CERPA’s functioning and the defective operation of the extraordinary appeal procedure. Under Article 46 Poland remained free to choose the means by which it would discharge its obligations arising from the execution of the Court’s judgments.

(3) Procedure for follow-up cases – Pending implementation of the indicated measures, similar cases of which notice had not yet been given to the Government would be adjourned for one year as from the date of the delivery of the present judgment pending the adoption of general measures by the Polish State. Cases that had already been notified would be examined and proceed to judgment. Lastly, the Court would continue to give notice to the Government of applications raising different issues in the context of the independence of the judiciary.

Article 41: EUR 30,000 in respect of non-pecuniary damage.

(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 ; Broda and Bojara v. Poland, 26691/18 and 27367/18, 29 June 2021 ; Reczkowicz v. Poland , 43447/19, 22 July 2021, Legal Summary ; Dolińska-Ficek and Ozimek v. Poland , 49868/19 and 57511/19, 8 November 2021, Legal Summary ; Advance Pharma sp. z o.o v. Poland , 1469/20, 3 February 2022, Legal Summary ; Grzęda v. Poland [GC], 43572/18, 15 March 2022, Legal Summary ; Żurek v. Poland , 39650/18, 16 June 2022; Juszczyszyn v. Poland , 35599/20, 6 October 2022, Legal Summary )

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

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