Τhe procedure for appointing judges was not independent and impartial - Violation of right to a fair hearing (ECtHR)

In its Chamber judgment of 8.11.2021 in the case of Dolińska-Ficek and Ozimek v. Poland (application nos. 49868/19 and 57511/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The case concerned complaints brought by two judges that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which had decided on cases concerning them, had not been a “tribunal established by law” and had lacked impartiality and independence.

They complained in particular that the Chamber of Extraordinary Review and Public Affairs, one of two newly created chambers of the Supreme Court, had been composed of judges appointed by the President of Poland on the recommendation of the National Council of the Judiciary (“the NCJ”), the constitutional organ in Poland which safeguards the independence of courts and judges and which has been the subject of controversy since the entry into force of new legislation providing, among other things, that its judicial members are no longer elected by judges but by the Sejm (the lower house of Parliament).

The case is one of 57 applications against Poland, lodged in 2018-2021, concerning various aspects of the reorganisation of the Polish judicial system initiated in 2017[1]. The Court emphasised that its task was not to assess the legitimacy of the reorganisation of the Polish judiciary as a whole, but to determine whether, and if so how, the changes had affected Ms Dolińska-Ficek’s and Mr Ozimek’s rights under Article 6 § 1 of the Convention.

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.

As 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, a rapid remedial action on the part of the Polish State is required. 

When the Court finds a breach of the Convention, the State has a legal obligation under Article 46 of the Convention to select, subject to supervision by the Committee of Ministers, the general and/or 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. It therefore falls upon the State of Poland to draw the necessary conclusions from this judgment and to take appropriate measures 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. (ECtHR/photo pexels.com)

Read more details here

[1] See also previous press releases concerning pending cases of Grzęda v. Poland (no. 43572/18), Advance Pharma Sp. z o.o v. Poland (no. 1469/20), Brodowiak and Dżus v. Poland (nos. 28122/20 and 48599/20), Biliński v. Poland (no. 13278/20), Pionka v. Poland (no. 26004/20), Juszczyszyn v. Poland (no. 35599/20), Żurek v. Poland (no. 39650/18), and Tuleya v. Poland (no. 21181/19), and the press releases in the judgments Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18) and Broda and Bojara v. Poland (nos. 26691/18 and 27367/18).

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