The European Court of Human Rights (ECHR) has ruled that two Polish judges had their right to a fair hearing over a job application breached by a body created during the government’s contested overhaul of the judiciary.
While today’s verdict concerns the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, an earlier judgement in July found that the other new body set up to discipline judges was also “not a tribunal established by law” on similar grounds of political influence.
In a case brought by two judges who were rejected for judicial posts, the Strasbourg court found that they had been denied their right to a fair hearing, which is enshrined in the European Convention of Human Rights.
Monika Dolińska-Ficek and Artur Ozimek had appealed their rejections by the National Council of the Judiciary (KRS) for judicial posts to the Supreme Court in 2018. Their appeals were then examined by the newly established Chamber of Extraordinary Review and Public Affairs of the Supreme Court and dismissed in 2019.
The two judges lodged their separate cases with the ECHR, but the court is it examined the applications jointly “given the similar subject matter”, handing down a final judgement today.
The Strasbourg tribunal found that following the 2017 overhaul, the National Council of the Judiciary (KRS) was no longer independent from legislative or executive powers. Previously, most KRS members were appointed by other judges; now the majority are chosen by the parliament, with the rest also largely political appointees.
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 effectively agreed with that judgement earlier this year.
Moreover, the two judges were denied their fair hearing because the KRS had also appointed judges to the Supreme Court’s new chamber, resulting in them being “unduly influenced by the legislative and executive powers”. This meant that the body was not a “tribunal established by law,” according to today’s verdict.
The ECHR has now also confirmed that by extension the second contentious chamber is not an “independent and impartial tribunal established by law” within the meaning of the European Convention. Poland must pay compensation of €15,000 to each of the two judges who brought the case.
The European court also noted that unlike in the earlier July case, this one harboured an “additional manifest breach of domestic law” because Poland’s President Andrzej Duda appointed judges to the new chamber despite another ruling from the Polish Supreme Administrative Court suspending the recommendation.
The ECHR called on Poland to take “rapid remedial action” to improve its rule of law situation and bolster the independence of the judiciary.
The court emphasised, however, that “its task was not to assess the legitimacy of the reorganisation of the Polish judiciary as a whole” but to determine its effects on the case at hand. In May, it found that Poland’s constitutional court was also not a tribunal established by law due to another faulty appointment mechanism.
Poland’s justice minister Zbigniew Ziobro said he treated the verdict “as an element of a broader political action conducted against the Polish state” and “negating its status”. He said he would not draw the conclusions “wished for” by the ECHR judges.
Sebastian Kaleta, a deputy justice minister, said the verdict followed a “bizarre principle” that “mature democracies” such as Germany were allowed to have “an extremely political way of selecting judges” while other countries, such as Poland, required “guardianship”.
The Polish government often claim that the European Union is biased against it and does not apply the same standards to other member states, with the country’s new disciplinary chamber at the heart of a separate dispute between Poland and the European Union.
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, leading to daily fines of €1 million.
Some commentators argue, however, that consecutive judgements by the ECHR, which is not an EU court, show that concerns about Poland’s judicial overhaul go beyond EU politics.
Jakub Jaraczewski, a research coordinator at DemocracyR, a Berlin-based think tank, said that today’s judgement was “another clear sign” that Poland’s rule of law crisis was about “core values and human rights” rather than just a spat with Brussels over EU integration.
Experts also warn that the ECHR could find further violations of the right to a fair trial in cases heard by lower-rung judges appointed by the reformed KRS, affecting many more cases.
Wyrok dotyczył bezpośrednio tylko IKNiSP, ale moim zdaniem można się spodziewać, że do naruszenia dojdzie także w sprawach sądów powszechnych, w których orzekają sędziowie powołani na wniosek zmienionej KRS. Tak też bym odczytywał poniższy fragment (pkt 368 wyroku): pic.twitter.com/uh3TwiyXld
— Marcin Szwed (@marcinszwed89) November 8, 2021
There are currently 56 other applications against Poland lodged in 2018-2021, concerning various aspects of the reorganisation of the Polish judicial system initiated in 2017, according to the ECHR.
Main image credit: Sakuto/Flickr (under CC BY-NC 2.0)
Maria Wilczek is deputy editor of Notes from Poland. She is a regular writer for The Times, The Economist and Al Jazeera English, and has also featured in Foreign Policy, Politico Europe, The Spectator and Gazeta Wyborcza.
