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ECtHR: The Extraordinary Review and Public Affairs Chamber of the Supreme Court is not an independent and impartial tribunal established by law

November 9th, 2021

The European Court of Human Rights in Strasbourg ruled in the case of two Polish judges that the Extraordinary Review and Public Affairs Chamber of the Supreme Court, which had decided on cases concerning them, had not been an “tribunal established by law” and had lacked impartiality and independence and therefore held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. (applications No. 49868/19 and 57511/19).

The Court found that the procedure for appointing judges had been unduly influenced by the legislative and executive powers and that it was incompatible with the ECHR, thus compromising the legitimacy of that Chamber of the Supreme Court. It observed that it fell to the State of Poland to draw the necessary conclusions from this judgment and in the interests of the rule of law and the principles of the separation of powers and the independence of the judiciary to take any individual or general measures as appropriate in order to resolve the problems at the root of the violations found by the Court and to prevent similar violations from taking place in the future. Poland must take rapid action to resolve the lack of independence of the National Council of the Judiciary

The case concerned complaints brought by judges Monika Dolińska-Ficek from the District Court in Mysłowice and Artur Ozimek from the District Court in Lublin, who applied for the promotion, but did not receive a positive recommendation from the new National Council of the Judiciary. They appealed against the decision of the neoNCJ to the Supreme Court, but the Extraordinary Review and Public Affairs Chamber in the Supreme Court rejected their appeal.

The judges were represented by Maria Ejchart-Dubois and Sylwia Gregorczyk-Abram, lawyers from the #FreeCourts Initiative as part of the Justice Defense Committee (KOS). Congratulations!

Today’s judgment is of fundamental importance in the fight to uphold the rule of law in Poland, because the argumentation contained therein concerns not only judges in the new Extraordinary Review and Public Affairs Chamber in the Supreme Court, but all judges appointed with the participation of the neoKRS.

The Court found that the procedure for appointing judges had been unduly influenced by the legislative and executive powers. That amounted to a fundamental irregularity that adversely affected the whole process and compromised the legitimacy of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which had examined the applicants’ cases. The Chamber of Extraordinary Review and Public Affairs was not therefore an “independent and impartial tribunal established by law” within the meaning of the European Convention.

The judgment resembles closely that of Reczkowicz v. Poland (no. 43447/19) of July 2021. However, an additional manifest breach of domestic law was found in this judgment because, “in blatant defiance of the rule of law”, the President of Poland carried out judicial appointments despite a final court order staying the implementation of the NCJ’s resolution recommending judges to the Chamber of Extraordinary Review and Public Affairs.

First, the Court established that there had been a manifest breach of domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. That was because the NCJ, as established under the Amending Act on the NCJ of 8 December 2017, did not provide sufficient guarantees of independence from the legislative or executive powers.

The Court then went on to find that the President of Poland’s appointment of all the judges to the Chamber of Extraordinary Review and Public Affairs upon NCJ resolution no. 331/2018, notwithstanding the ruling of the Supreme Administrative Court of 27 September 2018 suspending the NCJ’s resolution, amounted to a manifest breach of the domestic law. Deliberate disregard of a binding judicial decision and interference with the course of justice in order to minimise the validity of a pending judicial review of the appointment of judges could only be characterised as blatant defiance of the rule of law. In light of the above, the Court did not find it necessary to determine whether there was also a separate breach of the domestic law resulting from the fact that the President’s announcement of vacant positions in the Supreme Court had been made without the Prime Minister’s countersignature.

The Court found that a procedure for appointing judges which was unduly influenced by the legislative and executive powers was in itself incompatible with Article 6 § 1 of the Convention and, as such, compromised the legitimacy of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. The applicants’ right to a “tribunal established by law” had been impaired.

In coming to this conclusion, the Court referred in particular to rulings by the Polish Supreme Court finding that the judges of the Supreme Court appointed in the procedure involving the NCJ were not a court constituted in accordance with domestic law. The Court considered that those rulings were based on convincing arguments, including a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention’s fundamental standards and of EU law. It also took into account rulings of the Court of Justice of the European Union, as well as multiple reports and assessments by European and international institutions.

The Court concluded that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which examined the applicants’ cases, was not a “tribunal established by law”. There had therefore been a violation of Article 6 § 1 of the Convention.

As regards the question whether the same irregularities also compromised the independence and impartiality of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, the Court held that it was linked with the same underlying problem of inherently deficient procedure for judicial appointments and that it had already been answered in its examination of the complaint alleging that that chamber lacked attributes of a “tribunal established by law”. It did not therefore require further examination.

Lastly, the Court considered that there was no need to give a separate ruling on the applicants’ additional complaints of a breach of the right to a fair hearing in the proceedings before the NCJ.

When the Court finds a breach of the Convention, the State has a legal obligation to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress the situation.

Importantly, the Court’s conclusions regarding the incompatibility of the judicial appointment procedure involving the NCJ with the requirements of an “independent and impartial tribunal established by law” under Article 6 § 1 of the Convention will have consequences for its assessment of similar complaints in other pending or future cases.The deficiencies of that procedure have already adversely affected existing appointments and are capable of systematically affecting the future appointments of judges not only to the other chambers of the Supreme Court but also to the ordinary, military and administrative courts.

The violation of the applicants’ rights originated in the amendments to Polish legislation which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, thus systematically compromising the legitimacy of a court composed of the judges appointed in that way. In this situation and in the interests of the rule of law and the principles of the separation of powers and the independence of the judiciary, a rapid remedial action on the part of the Polish State is required.

The Court refrained from giving any specific indications as to the type of individual and/or general measures that might be taken in order to remedy the situation and limited its considerations to general guidance. It therefore falls upon the State of Poland to draw the necessary conclusions from this judgment and to take any individual or general measures as appropriate in order to resolve the problems at the root of the violations found by the Court and to prevent similar violations from taking place in the future.

Today’s judgment of the Court was issued on the complaints of two judges – Monika Dolińska-Ficek from the SR in Mysłowice and Artur Ozimek from the SO in Lublin, who applied for the promotion, but did not receive a positive recommendation from the new National Council of the Judiciary. The judges appealed against the resolutions of the neoNCJ to the new Extraordinary Control and Public Affairs Chamber, arguing that the neoNCJ is not independent. In 2019, the Chamber rejected their complaints.

The judges brought complaints before the European Court of Human Rights in Strasbourg, alleging that Poland violated their right to a fair trial (Article 6 of the ECHR).

They argued that the new NCJ which dealt with their cases was not an independent and impartial body. In their complaints, they pointed to various factual, procedural and legal controversies around the NCJ. In particular: it recommended judges to the Supreme Court in spite of the decision of the Supreme Administrative Court of 27 September 2018 suspending this procedure; the legality of the procedure for election of members of the NCJ had not been verified; the conduct of the members of the NCJ at the sessions at which their candidatures were examined showed their arbitrariness and lack of impartiality.

In their complaints, they also complained that they had their cases examined by the Chambers of the Supreme Court which did not constitute an “independent and impartial tribunal established by law” as they were composed of judges recommended by the NCJ.

Today’s judgment of the ECtHR is not final, the Polish government may request referral of the case to the Grand Chamber.


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