Interim Resolution CM/ResDH(2023)487

Execution of the judgments of the European Court of Human Rights

Reczkowicz group (Application No. 43447/19) and Broda and Bojara (Application No. 26691/18) v. Poland

(Adopted by the Committee of Ministers on 7 December 2023 at the 1483 rd meeting of the Ministers’ Deputies)

Application

Case

Judgment of

Final on

Indicator for the classification

43447/19

RECZKOWICZ

22/07/2021

22/11/2021

Complex problem

49868/19

DOLIŃSKA-FICEK AND OZIMEK

08/11/2021

08/02/2022

1469/20

ADVANCE PHARMA SP. Z O.O.

03/02/2022

03/05/2022

26691/18

BRODA AND BOJARA

29/06/2021

29/09/2021

Complex problem

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases concerning notably reforms undermining the independence of the judiciary in Poland, which in particular resulted in: infringements of the right to a tribunal established by law, as the applicants’ cases were examined by judges appointed after March 2018 in various chambers in the Supreme Court in a deficient procedure involving the National Council of the Judiciary (“NCJ”), which lacked independence ( Reczkowicz group); and the premature termination of the applicants’ term of office as vice-presidents of a regional court on the basis of temporary legislation ( Broda and Bojara ), without any possibility of judicial review;

Recalling with grave concern the Constitutional Court’s judgment of 10 March 2022 in the case K 7/21 in which it found that Article 6, paragraph 1, of the Convention, as interpreted by the European Court in the present judgments, was inconsistent with the Polish Constitution; and that it considered these judgments to be deprived of enforceability as it had allegedly been adopted by the European Court acting ultra vires;

Recalling that the report of the Secretary General of the Council of Europe in accordance with Article 52 of the Convention ( SG/Inf(2022)39 ) concluded that as a result of the findings of unconstitutionality in the judgment in the case K 7/21, the ensuing obligation of Poland under the Convention to ensure the enjoyment of the right to a fair trial by an independent and impartial tribunal established by law to everyone under its jurisdiction was not fulfilled; and that to ensure the implementation of its international obligations under Article 1, Article 6, paragraph 1, and Article 32 of the Convention, Poland had an obligation to ensure that its internal law is interpreted and, where necessary, amended in such a way as to avoid any repetition of the same violations, as required by Article 46 of the Convention;

Noting with interest that just satisfaction was paid in all these cases, but noting with regret that no other relevant information on the individual measures has been provided by the authorities regarding in particular the possibility for Convention compliant examination of requests for reopening in the Reczkowicz group or the individual measures in the case of Broda and Bojara, which appear to be linked to general measures;

Recalling that the main underlying problem leading to the violation of Article 6 in the Reczkowicz group of cases was the appointment of judges upon a motion of the NCJ as constituted after March 2018, under the framework of 2017, which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled interference by the executive and the legislature in judicial appointments; and that this problem has systematically affected appointments of judges of all types of courts, which may result in potentially multiple violations of the right to an independent and impartial tribunal established by law;

Recalling, as concerns the Broda and Bojara case, that the procedure for the dismissal of (vice)presidents of domestic courts still lacks sufficient safeguards against arbitrary dismissals, including judicial review;

Noting with deep concern the lack of information on any progress as regards the elaboration or adoption of general measures in the Reczkowicz group and in the Broda and Bojara case, as well as noting the information that irregular judicial appointments, involving the deficiently composed NCJ, continue;

UNDERLINED once again its position that Poland has an unconditional obligation under Article 46 of the Convention to abide by the Court’s final judgments fully, effectively and promptly and that it is for the Respondent state to remove any obstacles in its national legal system that might prevent adequate redress;

DEEPLY REGRETTED in this context the authorities’ continued reliance on the judgment of the Constitutional Court in the case K 7/21 as an obstacle to the adoption of relevant general measures;

EXHORTED AGAIN the authorities to rapidly elaborate measures to: (i) restore the independence of the NCJ through introducing legislation guaranteeing the right of the Polish judiciary to elect judicial members of the NCJ; (ii) address the status of all judges appointed in deficient procedures involving the NCJ as constituted after March 2018 and of decisions adopted with their participation; (iii) ensure effective judicial review of the NCJ’s resolutions proposing judicial appointments to the President of Poland, including of Supreme Court judges, respecting also the suspensive effect of pending judicial review; (iv) ensure that questions as to whether the right to a tribunal established by law has been respected can be examined without any restrictions or sanctions for applying the requirements of the Convention; (v) ensure the protection of presidents and vice-presidents of courts from arbitrary dismissals, including through introducing judicial review;

INVITED AGAIN the authorities to provide the information requested by the Committee in respect of the reopening of the domestic proceedings at issue in the Reczkowicz group of cases;

INVITED the authorities to enter into high level consultations with the Secretariat to explore possible solutions for the execution of the judgments in these cases.