Polish judicial policies violated right to fair trial, finds ECHR, paving way for compensation claims

The European Court of Human Rights (ECHR) has ruled that the Polish authorities have acted with “manifest disregard for the rule of law” in their judicial policies, meaning that the way judges are appointed has violated the right to a fair trial.

The court ordered Poland to pay compensation to the firm that brought the case in question, and also noted that the path is now open for further such claims by other parties. This could result in a wave of applications to the ECHR for compensation from the Polish state, says one expert.

But a Polish deputy justice minister dismissed the ruling as “meaningless” and further evidence that European institutions “treat Poland like a colony”.

The case ruled upon yesterday was brought by a company, Advance Pharma, which produces dietary supplements, including to improve men’s sexual performance. It had sought to sue the state in a dispute over one of its products being withdrawn from the market, but the Supreme Court’s civil chamber rejected the case.

The firm appealed to the ECHR, arguing that it had been denied the right to a fair trial because the Supreme Court panel considering its case was made up entirely of judges appointed by the National Council of the Judiciary (KRS) after it had been overhauled by the government in 2017.

Following the government’s changes to the KRS – which is the body responsible for appointing judges – most of its members are now appointed by parliament, while the remaining ones are also largely political appointees.

This means that the KRS does “not provide sufficient guarantees of independence from the legislative or executive powers”, noted the ECHR yesterday. It added that there “there had been a manifest breach of domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the [civil] chamber”.

The European court noted that, in 2018, Poland’s Supreme Administrative Court had issued an interim order for the KRS’s recommendation that seven judges be appointed to the civil chamber be suspended. But the president, Andrzej Duda, went ahead and confirmed their appointments anyway.

Subsequently, while judicial review of the KRS’s recommendation of the judges was still ongoing, parliament introduced legislation extinguishing the right to appeal such recommendations and discontinuing any ongoing such cases.

In its ruling yesterday, the ECHR found that:

“The executive power by proceeding with the above appointments despite the pending judicial review, and the legislature, by intervening in pending judicial proceedings in order to extinguish any legal or practical effects of judicial review, acted in manifest disregard for the rule of law and in flagrant breach of the requirements of a fair hearing within the meaning of [the European Convention on Human Rights].”

In doing so, the authorities “demonstrated an attitude which could only be described as one of utter disregard for the authority, independence and role of the judiciary”, added the European court.

Given the above, the civil chamber of the Supreme Court that examined Advance Pharma’s case was not a “tribunal established by law”, concluded the ECHR. The firm’s right to a fair trial under the European Convention on Human Rights was therefore violated.

The ECHR ordered the Polish state to pay Advance Pharma €15,000 in compensation. It also noted the “inescapable conclusion” that, given the continued operation of the KRS in appointing judges, this will “in the future result in potentially multiple violations” and “lead to further aggravation of the rule of law crisis in Poland”.

Jakub Jaraczewski, a legal expert at Democracy Reporting International, notes that the ECHR’s ruling paves the way for civil proceedings as “a new avenue of the Polish rule of law crisis”. That could result in “a lot of cases” being made at the ECHR and Poland having to pay significant amounts of compensation.

A deputy justice minister, Sebastian Kaleta, however, dismissed the ECHR’s ruling as “meaningless”. He cited the court’s view that in some “older democracies” a system in which the executive has strong influence on judicial appointments can “work well in practice”, but that additional “safeguards” are needed in “new democracies”.

This shows that the European court is “treating Poland like a colony”, said Kaleta, repeating a common criticism by the justice ministry in response to negative judgements by international courts.

Yesterday’s ruling was the latest in a series by the ECHR that have recently been made against Poland. Last May, it found that Poland’s constitutional court is not a “tribunal established by law” because it contains a judge illegitimately appointed as part of the current government’s judicial policies.

In June, it ruled that Poland violated the European Convention on Human Rights when it dismissed judges without explanation, and the following month that 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”.

In November, it found that two Polish judges had their right to a fair hearing breached by a review body created during Poland’s overhaul of the judiciary. However, later that month Poland’s own constitutional court ruled that part of the European Convention on Human Rights that guarantees the right to a fair trial is incompatible with the Polish constitution.

Main image credit: Adrian Grycuk/Wikimedia Commons (under CC BY-SA 3.0 PL)

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.