Where are we one year after the judgment of the European Court of Human Rights (ECtHR) in the Wałęsa v. Poland case, and how does the current situation in the judiciary affect citizens? Conclusions of a meeting of lawyers organized on the anniversary of the Strasbourg Court’s judgment.
- On November 23, 2023, the European Court of Human Rights has issued a pilot judgment in the Wałęsa v. Poland case, setting a one-year deadline for the Polish Government to implement it.
- On November 20, 2024, ECtHR announced an extension of this deadline by another year, i.e. until November 23, 2025.
- This means that until that time, the examination of cases not yet presented to the Polish Government but based on the same problems that arose in the Wałęsa v. Poland case, has been suspended by the ECtHR.
- At the moment, the Court has some 700 applications indicating violations of the right to “an independent and impartial court established by law.”
On November 25, 2024, the Free Courts Foundation together with the Warsaw Bar Association organized a press breakfast in connection with the anniversary of the pilot judgment in the Wałęsa v. Poland case by the European Court of Human Rights (app. no. 50849/21). The judgment clearly demonstrated systemic problems in the functioning of the judiciary, related in particular to irregularities in judicial appointments, the formation of the National Council of the Judiciary and the functioning of the institution of extraordinary appeal in the legal system.
The meeting was moderated by att. Sylwia Gregorczyk-Abram and att. Katarzyna Wiśniewska, PhD. who stressed the importance of the implementation of judgments of the European Court of Human Rights regarding the rule of law to ensure the right of citizens to fair proceedings. The meeting was an opportunity to present a diagnosis of the functioning of the courts one year after the Wałęsa v. Poland verdict and postulates for the future.
The Dean of the Warsaw Bar Association – att. Mikołaj Pietrzak noted that the destruction of the judiciary, which we have observed since 2015, directly affects the judicial reality and the way court proceedings (including current proceedings) are conducted (they are longer and their status is uncertain). Deputy Dean of the Warsaw Bar Association att. Katarzyna Gajowniczek – Pruszyńska, PhD. also pointed out the practical problems that the current situation raises for citizens whose cases are being prosecuted, including the inability to appoint a composition in accordance with Article 6 of the ECHR. She pointed out that there are courts, such as the Court of Appeal in Warsaw, where one waits about three years to hear a case.
The opinions of the attorneys were confronted with the position of prosecutors, who also participate in court proceedings at various levels on a daily basis. Prosecutor Malgorzata Szeroczynska from the Association of Prosecutors Lex Super Omnia drew attention to the Prosecutor General’s guidelines on the exclusion of persons appointed with the participation of the so called new-NCJ to the Supreme Court. However, she pointed out that their scope is limited in subject matter. Civil Development Forum board member Patryk Wachowiec noted that “the Prosecutor General’s guidelines apply only to proceedings before the Supreme Court. From the perspective of the protection of human rights, including the right to a court, it would be worthwhile for similar recommendations to apply to common courts as well.”
Prosecutor Malgorzata Szeroczynska also mentioned that in many Polish courts there has been a situation in which it is impossible to form a legitimate panel of judges in proceedings due to amount of defective judicial appointments. She also stressed the role of prosecutors as “ombudsmen of the rule of law” in judicial proceedings.
The Ombudsman’s perspective and position was presented by Janusz Roszkiewicz, PhD. who pointed out that since 2018, the Ombudsman has received requests from citizens asking him to intervene in court cases involving judges appointed at the request of the defectively formed NCJ: “We intervene in those cases where there are reasonable doubts about the independence of the judge in question, evaluating each case individually (in accordance with the case law of the Supreme Court, ECtHR, and CJEU). In other cases, we explain to citizens that the mere fact that a judge was appointed at the request of a defectively formed NCJ does not automatically prove that the judge is not independent. The Ombudsman has repeatedly pointed out that a situation in which citizens lack certainty about the legality and enforceability of court judgments in their cases is unacceptable. The status of judges appointed between 2018 and 2024 needs to be sorted out by law, so that no one has doubts about their legality and independence – considering the guidance provided by ECtHR case law and the opinion of the Venice Commission.”
Judge Piotr Raczkowski, who represented the Themis Judges Association at the meeting, drew attention to the position of the citizen in criminal proceedings, stating that “in the appellate courts, the judge does not have to await the parties’ request for the exclusion of the neo judge, as he is obliged by the content of Article 439 § 1 of the Code of Criminal Procedure to control the correctness of the court’s staffing.” The judge noted that in his opinion “if one takes into account the content of Article 439 § 1 p. 2 of the Code of Criminal Procedure. and the jurisprudence of the CJEU, the ECtHR and the resolutions of the Supreme Court, then the appellate court has no other option but to overturn the decision of the court whose composition included a person appointed incorrectly, therefore the legal regulations to which our State was obliged by the Strasbourg Court must be settled, as soon as possible, as the citizen is losing his sense of legal certainty.”
Also present at the meeting were representatives of the civil society organizations, which monitors both the process of implementation of European judgments and everyday life in the Polish justice system. Attention was also paid to the necessary legislative changes, the direction of which stems from the Strasbourg Court’s case law, including the Wałęsa v. Poland judgment.
Adam Ploszka, PhD. from Amnesty International Poland noted that “the ongoing process of restoring the rule of law is often compared with the process of political transformation in the 1990s. Regardless of the validity of this comparison, it is worth learning from the mistakes that were made at that time. One of them was the protraction of the entire process, a tangible manifestation of which was the adoption of the current Constitution of the Republic of Poland 8 years after the democratic breakthrough. It is worth doing everything to avoid this mistake today.” He also stated that “the ECtHR’s decision to extend the deadline for Poland’s implementation of the Wałęsa v. Poland judgment should not be treated as an excuse for the lack of progress in the process, especially the presentation of specific draft laws, but as a mobilizing factor to speed up the entire process.”
In turn, Marcin Szwed, PhD. from the Helsinki Foundation for Human Rights noted that “for the full implementation of the Wałęsa v. Poland judgment, it is necessary to enact a law that will regulate the principles of verification of judges appointed at the request of the so-called new-NCJ, as well as normalize the status of judgments handed down by such persons. Such a law should consider, among other things, the recommendations contained in the recent opinion of the Venice Commission. Although it is not directly binding, it does reflect some important European standards.”
Professor Marek Safjan, Chairman of the Civil Law Codification Commission, acknowledged that the discussion about restoring good standards in the judiciary, and above all truly independent and impartial courts, is first and foremost a debate about ensuring citizens’ right to effective protection of their rights and freedoms. “Today’s conference clearly demonstrated the full determination of all involved circles from judges’ associations to community organizations and government institutions to consistently pursue this goal. A clear indication and direction for the necessary reforms is provided by the case law of the European courts, which must be implemented in our system as soon as possible. On a positive note, it should be noted that intensive work is already being undertaken today on the necessary legislative projects (the projects being developed by the codification commission are of particular importance) concerning, among other things, thorough changes in the law on the Supreme Court (including the abolition of two unconstitutional Chambers – Extraordinary Review and Public Affairs, and Professional Liability Chamber), as well as the elimination of the extraordinary appeal, which undermines the legal certainty and security of citizens, as the Wałęsa v. Poland judgment clearly demonstrates).”
The professor stressed that “a key element of the reforms must be the restoration of a constitutional National Council of the Judiciary. The most urgent task, as all participants stressed, is to sort out the status of the so-called neo-judges whose appointments have been affected by the significant flaw of illegality of the appointment procedures. All drafts under preparation take as a starting point the so-called “threshold points” set forth in the opinion of the Venice Commission (among other things, the possibility of appealing against the decision to remove them from their positions). All participants pointed out that carrying out reforms as quickly and consistently as possible is a condition for regaining faith in citizens in the value of democracy and the rule of law”.
Deputy Minister of Justice Dariusz Mazur noted that the Ministry of Justice is taking steps to implement the Court’s rulings – both through statutory measures and ministerial decisions. The Minister stressed the importance of the Venice Commission’s guidelines and pledged to take them into account in the final drafts. The Minister also noted that the Government declares a systemic approach to the execution of ECtHR judgments by introducing a special law. He stressed that the Government participates in dialogue with, among others, the Committee of Ministers of the Council of Europe, which is responsible for overseeing the execution of the Court’s judgments. In response, Judge Piotr Gąciarek from the Association of Polish Judges “Iustitia” pointed out that the resolution of the case of the so-called neo-judges must take place efficiently, without undue delay and, above all, in order to ensure the right to a court for citizens.
Deputy Dean of the Warsaw Bar Association, att. Katarzyna Gajowniczek-Pruszyńska, PhD. said that “whether we will draw exclusively on the grounds for resumption of proceedings regulated in the Criminal Procedure Code will also result from legislative work around the most relevant laws. The grounds for resumption of proceedings based on the decision of the European courts are reflected in the laws in force today, but what is characteristic of the institution of resumption of criminal proceedings in Poland, they are not often applied.”
The November event is part of the Free Courts Foundation’s efforts to enforce the judgments of the European Court of Human Rights. This is a process in which the voice of the civil society is extremely important.
Press release available here