Information Note on the Court’s case-law 253
Reczkowicz v. Poland – 43447/19
Judgment 22.7.2021 [Section I]
Tribunal established by law
Grave irregularities in appointment of judges to the newly established Supreme Court’s Disciplinary Chamber following legislative reform: violation
Facts – In July 2017 the applicant, a barrister, was suspended from her duties for a period of three years in connection with various breaches of the Code of Bar Ethics as a consequence of disciplinary proceedings. Her case was examined at the last instance by the newly established Disciplinary Chamber of the Supreme Court following the reorganisation of that court effected through the 2017 Amending Act on the National Council of the Judiciary (NCJ) and the 2017 Act on the Supreme Court as part of the large-scale legislative reform of the Polish judicial system initiated by the government in 2017. The Disciplinary Chamber was composed by judges appointed through the procedure involving the new NCJ. The applicant complained that the judges of that Chamber had been appointed by the President of Poland upon the NCJ’s recommendation in manifest breach of the domestic law and the principles of the rule of law, separation of powers and independence of the judiciary.
Background – The NCJ is a constitutional body whose main role, in accordance with the Constitution was to safeguard the independence of courts and judges. Before the amendments, the NCJ’s judicial members were elected by judges, a rule which had been firmly established in the Polish legal order and confirmed in unequivocal terms by the Constitutional Court in a judgment of 18 July 2007. This judgment was, however, reversed by the Constitutional Court on 20 June 2017. Following, the 2017 reform, the NCJ’s judicial members are elected by Sejm. Pursuant to the relevant domestic provisions read as a whole, judges are appointed to all levels and types of courts, including the Supreme Court, by the President of Poland following a recommendation of the NCJ which the latter issues after a competitive selection procedure in which it evaluates and nominates the candidates.
Following preliminary ruling requests from the Supreme Court in three cases, on 19 November 2019 the Court of Justice of the European Union (“CJEU”), concluded that the Disciplinary Chamber did not satisfy the requirements of independence.
On 5 December 2019 the Supreme Court gave judgment in the above cases finding that the NCJ did not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure. As to the Disciplinary Chamber, following the guidance given by the CJEU in its judgment, it concluded that it could not be considered a court within the meaning of domestic law and Article 6. These conclusions were endorsed on 23 January 2020 by the joined Chambers of the Supreme Court in a joint resolution. As per the resolution, court formations including Supreme Court judges appointed through the procedure involving the NCJ were unduly composed.
On 28 January 2020 the Constitutional Court issued an interim decision suspending the enforcement of the above resolution and, the Supreme Court’s jurisdiction to issue resolutions concerning the compatibility, with national or international law or the case-law of international courts, of the NCJ’s composition, the procedure for judicial appointments conducted by that body and the President’s prerogative to appoint judges. On 20 April 2020 it issued judgment declaring the above resolution of 23 January 2020 incompatible with the Constitution, the Treaty of the European Union and Article 6 § 1 and holding, in particular, that the President of Poland’s decisions on judicial appointments could not be subject to any type of review, including by the Supreme Court. It confirmed this principle in a decision of 21 April 2021 on a “conflict of competence between Sejm and the Supreme Court and between the President of Poland and the Supreme Court”.
Law – Article 6 § 1: The Court’s task in the present case was to assess the circumstances relevant for the process of appointment of judges to the Supreme Court’s Disciplinary Chamber, after the entry into force of the 2017 Act on the Supreme Court establishing that Chamber, and not to consider the legitimacy of the reorganisation of the Polish judiciary as a whole.
(a) Applicability – There was no ground to depart from the well-established principle that disciplinary proceedings in which the right to continue to exercise a profession was at stake gave rise to “contestations” (disputes) over civil rights. This principle had also been applied to proceedings conducted before various professional disciplinary bodies including judges. Article 6 § 1 therefore applied under its civil head. The disciplinary proceedings, however, did not involve the determination of a criminal charge.
(b) Merits – The Court examined whether the hearing of the applicant’s case by the Disciplinary Chamber gave rise to a violation of the applicant’s right to a “tribunal established by law”, in the light of the three-step test formulated in Guðmundur Andri Ástráðsson v. Iceland [GC] and the general principles set out therein.
(i) Whether there was a manifest breach of the domestic law – The Court was faced with two fundamentally opposite views of the Polish highest courts on this point. Its task was to review whether those courts in their respective rulings had struck the requisite balance between the various interests at stake and whether, in carrying out that exercise and reaching their conclusions, they had paid due regard to, and respect for, the Convention standards required of a “tribunal established by law”. Further, the 2017 Amending Act, being part and parcel of the legislation on the reorganisation of the Polish judiciary, had to be seen in the context of coordinated amendments to domestic law effected for that purpose and having regard to the fact that those amendments and their impact on the Polish judicial system had drawn the attention and prompted the concern of numerous international organisations and bodies, and had become the subject of several sets of proceedings before the CJEU.
The Supreme Court, in its judgment of 5 December 2019 and resolution of 23 January 2020, had established several flagrant breaches of domestic law. It had explained, with extensive reasoning, its conclusions, which it had reached after a thorough analysis and careful evaluation of the relevant domestic law from the perspective of the Convention’s fundamental standards and of EU law, and in application of the CJEU’s guidance and case-law. It had carried out an in-depth assessment of all the elements relevant to an “independent and impartial tribunal established by law” in the light of the constitutional principles governing the NCJ’s functioning, including the principle of the separation and balance of the legislative, executive and judicial powers and the principle of the independence of the judiciary.
However, this had not been the case with the Constitutional Court in its judgments of 20 June 2017 and 20 April 2020.
Considering the apparent absence of a comprehensive, balanced and objective analysis of the circumstances before it in Convention terms, the Constitutional Court’s evaluation must be regarded as arbitrary and as such could not carry any weight in the Court’s conclusion as to whether there had been a manifest breach, objectively and genuinely identifiable as such, of the domestic law involved in the procedure for judicial appointments to the Disciplinary Chamber. Furthermore, this judgment had to be seen in conjunction with the general context in which the Constitutional Court had operated since the end of 2015 and its actions aimed at undermining the Supreme Court resolution’s finding as to the manifest breach of domestic and international law due to the deficient judicial appointment procedure involving the NCJ. These actions had started from the unprecedented interim decision of 28 January 2020. This kind of interference with a judicial body, aimed at incapacitating it in the exercise of its adjudicatory function in the application and interpretation of the Convention and other international treaties, had to be characterised as an affront to the rule of law and the independence of the judiciary. The Constitutional Court’s final ruling on that matter given on 21 April 2020 perpetuated this state of affairs.
In view of the foregoing, and in particular the Supreme Court’s convincing and forceful arguments of in its judgment of 5 December 2019 and resolution of 23 January 2020, and its conclusions as to the judicial appointment procedure to the Disciplinary Chamber being contrary to the law – the Court found it established that there was a manifest breach of the domestic law.
(ii) Whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges undermined the very essence of the right to a “tribunal established by law” – As regards the NCJ’s degree of independence and whether there had been undue interference by the legislative and executive powers with the appointment process, the Court first referred to the various – and in substance unanimous – opinions of the international organisations and bodies, according to which the changes in the election procedure for the judicial members of the NCJ introduced under the 2017 Amending Act had resulted in the NCJ no longer being independent or able to fulfil its constitutional obligation of safeguarding the independence of courts and judges. In this context it also took into account the circumstances in which the new NCJ had been constituted, in particular: the apparent boycotting of the elections by the legal community following the small amount of candidates; six out of the fifteen appointed judges had been in the past six months appointed as president or vice-president of courts by the Minister of Justice; the majority of the members of the current NCJ had been linked to or recommended by the ruling party; most of the candidates for election had been proposed by the executive; and the impossibility to verify whether candidates’ had required number of signatures because of the executive authorities’ initial non-disclosure of the endorsement lists. In connection to the latter, it was the Court’s view, that a situation where the public had not been given official clarification as to whether the formal requirement of obtaining sufficient support for the candidates for the NCJ had been met might raise doubts as to the legality of the process of election of its members. Moreover, a lack of scrutiny of who had supported the candidates might raise suspicions as to its members’ qualifications and to their direct or indirect ties to the executive. According to the information now in the public domain, the NCJ had been elected with the support of a narrow group of judges with strong ties to the executive and as indicated by the Supreme Court, there had also been doubts as to whether all elected members of the NCJ had fulfilled the legal requirement of having been supported by twenty-five active judges.
In view of the foregoing, the Court found that by virtue of the 2017 Amending Act, which deprived the judiciary of the right to nominate and elect judicial members of the NCJ – a right afforded to it under the previous legislation and recognised by international standards – the legislative and the executive powers, had achieved a decisive influence on the composition of the NCJ. The Act had practically removed not only the previous representative system but also the safeguards of independence of the judiciary in that regard enabling the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities had taken advantage – as shown, for instance, by the circumstances surrounding the endorsement of judicial candidates for the NCJ. At the same time, under the 2017 Act on the Supreme Court, depriving the First President of the Supreme Court her prerogative to announce vacant positions in that court, in favour of the President of Poland, had further weakened the involvement of the judiciary in the judicial appointment process, in particular appointments to the Supreme Court.
Assessing all the above circumstances as a whole, the Court found that the breach of the domestic law had inherently tarnished the impugned appointment procedure since, as a consequence of that breach, the recommendation of candidates for judicial appointment to the Disciplinary Chamber – a condition sine qua non for appointment by the President of Poland – had been entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. A procedure for appointing judges which, as in the present case, disclosed an undue influence of the legislative and executive powers on the appointment of judges was per se incompatible with Article 6 § 1 and as such, amounted to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed.
Thus, the breaches in the procedure for the appointment of judges to the Disciplinary Chamber were of such gravity that they impaired the very essence of the right to a “tribunal established by law”.
(iii) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed by the domestic courts, and whether remedies were provided – There was no procedure under Polish law whereby the applicant could challenge the alleged defects in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court. Consequently, no remedies had been provided.
Overall: The Disciplinary Chamber of the Supreme Court, which examined the applicant’s case, was not a “tribunal established by law”.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Gestur Jónsson and Ragnar Halldór Hall v. Iceland, 68271/14 and 68273/14, 30 October 2018, Legal Summary; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal summary; Xero Flor w Polsce sp. z o.o. v. Poland, 4907/18, 7 May 2021, Legal Summary)