Polish disciplinary chamber for judges is not lawful, rules European rights court

Poland’s disciplinary chamber for judges, set up as part of the government’s contested overhaul of the judiciary, is “not a tribunal established by law”, the European Court of Human Rights (ECHR) has ruled. It noted that the appointment of the chamber’s members was under political influence, thereby violating the right to a fair trial.

The same disciplinary chamber is currently at the heart of a separate dispute between Poland and the European Union. Last week, the Court of Justice of the EU (CJEU) found the judicial body to be in violation of European law and ordered it to be immediately suspended. Warsaw has so far not complied with the rulings.

Today’s ruling by the ECHR (which is not an EU court) follows another in May that found Poland’s constitutional court also not to be a tribunal established by law, since it contains a judge illegitimately appointed as part of the national-conservative Law and Justice (PiS) government’s judicial policies.

The disciplinary chamber, which resides within the Supreme Court, was established in 2017 as part of what PiS claims are its efforts to reform and improve the judiciary. Critics saw it as a means to intimidate and subdue independent judges who refused to toe the government line.

The chamber’s members were all appointed by another institution overhauled by PiS, the National Council of the Judiciary (KRS). Previously, most KRS members were appointed by other judges; now the majority are chosen by the parliament, with the rest also largely political appointees.

Consequently, the Supreme Court itself ruled in 2019 that “the KRS is not an impartial and independent body, while the disciplinary chamber is not a court within the meaning of EU and national law”. The ECHR has now effectively agreed with that judgement.

Ruling on a case brought by a barrister who had lost an appeal before the disciplinary chamber, the Strasbourg court found that she had been denied her right to a “fair hearing by an independent and impartial tribunal established by law”, which is enshrined in the European Convention of Human Rights.

It agreed with her claim that “there had been a manifest breach of domestic law” because members of the chamber were appointed by the KRS. This “meant in effect that the legislative and executive powers were able to interfere directly or indirectly in the appointment of judges”.

“The irregularities in the appointment process compromised the legitimacy to the Disciplinary Chamber to the extent that…it lacked and continues to lack the attributes of a ‘tribunal’ which is ‘lawful’ within the meaning of the Convention,” found the ECHR. It ordered Poland to pay the barrister €15,000 in damages.

The ruling may presage further judgements against Poland. There are currently 38 applications against Poland concerning the reorganisation of the judiciary lodged with the ECHR. Given that the KRS is responsible for nominating judges to various courts, today’s ruling may be repeated.

Main image credit: Maciek Jazwiecki / Agencja Gazeta

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.