Strasbourg Observers

When is a tribunal not a tribunal? Poland loses again as the European Court of Human Rights declares the Disciplinary Chamber not to be a tribunal established by law in Reczkowicz v. Poland.

October 26, 2021

By Anna Mechlinska

On July 22, 2021, the European Court of Human Rights (“the Court”) in Strasbourg unanimously found Poland in violation of Article 6, the right to a fair trial, of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) in the case of Reczkowicz v. Poland (application no. 43447/19). The Court ruled that the applicant advocate Joanna Reczkowicz, whose case was determined by the Disciplinary Chamber of the Polish Supreme Court, did not have a fair hearing before a “tribunal established by law” and ordered the Polish Government to pay Ms Reczkowicz 15,000 euros. The case is one of 38 cases lodged against Poland with the Court between 2018 and 2021 concerning the destructive changes to the judicial system initiated by the controversial Law and Justice Party in government, Prawo i Spawiedliwość (“PiS”) and is yet another case of great magnitude that the Polish government lost before the Court.

Once more, the Court confirmed that the judiciary reform introduced by PiS violates the rule of law and stands in contradiction with the basic principles of a democratic state as protected by the ECHR. Although the Court did not consider the legitimacy of the reorganisation of the Polish judiciary as a whole, the Court assessed the circumstances relevant for the process of appointing judges to the Disciplinary Chamber of the Supreme Court following the entry into force of the Supreme Court Act 2017, which established that Chamber. In particular, this judgment seriously undermines the legality and legitimacy of the appointment and promotions of all judges who passed through the National Council of Judges (“NCJ”), indicating the need for an urgent and thorough repair of the Polish judicial system.

Background

In July 2017, Ms Reczkowicz, a practicing lawyer, was suspended for three years from professional activities by the Disciplinary Court of the Bar Association due to the finding of a breach of the professional ethical code. Ms Reczkowicz appealed against the decision, but in 2019, her case was ultimately dismissed by the Disciplinary Chamber of the Supreme Court, one of the two new Chambers created during the PiS overhaul of the Polish Judicial system. Following the exhaustion of domestic proceedings, Ms Reczkowicz lodged a complaint with the Court and alleged a violation of her right to an impartial and independent “tribunal established by law” which constitutes a breach of Article 6 (1) of the ECHR. In her complaint, Ms Reczkowicz asserted that the judges of the Disciplinary Chamber of the Supreme Court who dealt with her case, were appointed in manifest breach of domestic law and the principles of the rule of law, separation of powers and independence of the judiciary.

By way of context, violations of the rule of law and the reform of the judiciary, have been the subject of intense public debate at domestic and European levels. There are numerous proceedings before the Polish courts and the Court of Justice of the European Union (“CJEU”). Poland has become a first ever EU member state to be simultaneously subject to the special monitoring procedure of the Council of Europe and the EU’s exceptional Article 7(1) procedure of the Treaty of the European Union. The reorganisation of the judicial system in Poland was also a subject of opinions and various reports of the United Nations, the Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) and the European Network of Councils for the Judiciary who suspended the membership of the Polish NCJ (one of its founding members).

NCJ is a constitutional body created to safeguard the independence of courts and judges. Before the reform, the NCJ’s judicial members were elected directly from and by judges. Following, the overhaul of the judiciary that began in 2017, the NCJ’s judicial members are now elected by the Sejm, the lower house of the Polish Parliament, contrary to their constitutional role and the previous case-law of the Constitutional Court. At the same time, the constitutionally protected four-year term of office of members of the NCJ had been prematurely terminated. This raised concerns about compliance with the Constitution and had further impaired the NCJ’s independence from the legislature and executive authorities. As a result of these reforms, the legislature and executive branches have undue influence over the process of appointments, and therefore, the NCJ no longer fulfils its constitutional role as the guardian of judicial independence.  In respect of the newly created Disciplinary Chamber of the Supreme Court, it is exclusively composed of judges elected upon the recommendation of the neo-NCJ with the President of the Disciplinary Chamber appointed by the President of Poland in February 2019. The new Chamber has far-reaching powers to adjudicate in disciplinary proceedings against judges, including the extraordinary power to retrospectively reopen any closed disciplinary proceedings.

Judgment

To assess whether there was a violation of the right to a “tribunal established by law” the Court applied the three-step test adopted in the case of Ástráðsson v Iceland ([GC], no. 26374/18, 1 December 2020). Under this test, in order to decide whether the issuance of a ruling by a court composed of an incorrectly appointed judge led to a violation of Article 6 (1) of the ECHR, it is necessary to examine: 1) whether there was a manifest breach of domestic law; 2) whether that breach pertained to a fundamental rule of the procedure of appointing judges; and 3) whether the violation could have been effectively reviewed and remedied by domestic courts.

The Court ruled that the procedure for selecting judges to the Disciplinary Chamber of the Supreme Court is grossly inconsistent with Polish domestic law which adversely affected the fundamental rules of procedure for the appointment of judges, because the appointment was entrusted to the new-NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. In the Court’s opinion, the political authorities exercised an excessive influence on the procedure for appointing judges and could directly or indirectly interfere with who would be appointed to the post of judge. The irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that it lacked and continues to lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6, and therefore results in a violation of the very essence of the right to a fair trial.

Judge Krzysztof Wojtyczek, wrote a concurring judgment, although agreeing with the judgment’s outcome, he had serious reservations as to the Court’s reasoning. His difficulties with the reasoning behind the decision were twofold: 1) the application of the criteria established in Guðmundur Andri Ástráðsson v. Iceland case; and 2) the legal and practical consequences of the judgment.

Firstly, in application of the test devised in Ástráðsson case, “the first question to be addressed is whether there was a manifest breach of domestic law.” Judge Wojtyczek pointed out the Court failed to identify and state any specific legal rule(s) which were breached, which makes it impossible to establish a breach of law. Instead, the Court put undue weight on domestic case-law, which is not a source of law in the Polish legal system. As rightly pointed out in the concurring opinion this reliance on the domestic case-law is inconsistent with previous decisions of this Court, where well-established domestic case-law had been implicitly found irrelevant.

In the second part of his judgment Judge Wojtyczek stressed “that the Court’s reasoning, as worded, will exacerbate the existing problems in the domestic legal system by adding to them the issue of the exact meaning and scope of the instant judgment.” In his view, it is unclear whether the decision concerns only the Disciplinary Chamber or all judges in Poland appointed upon nomination by the new NCJ. In some paragraphs of the reasoning, the Court limits the scope of the case to the Disciplinary Chamber. In other parts it concentrates on the new mode of election to the NCJ, which concerns appointments to other chambers of the Supreme Court and to ordinary, military and administrative courts. He also notes that the “the reasoning remains silent on the question of the consequences of the instant judgment for the applicant and – much more importantly – for other persons whose cases have been decided by the Disciplinary Chamber or by other tribunals – with the participation of judges appointed upon nomination by the new NCJ.”

The Judgment, while clear as to its outcome, is, as Judge Woityczek opines, far less clear as to the reasoning of how it gets there and in particular what -if any- change it can affect for Polish citizens who come before these captured courts.

New Reform?

The Court held that the procedure for appointing judges which, as in the present case, discloses undue influence of the legislature and executive powers on the appointment of judges is per se incompatible with Article 6 (1) of the ECHR and as such, amounts to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed. The ruling is an unequivocal statement of defectiveness of all appointments and promotion decisions of the neo-NCJ and not only those relating to the Disciplinary Chamber of the Supreme Court but extending to all other domestic courts with judges appointed or promoted under the same procedure.  In fact, following the Court and CJEU rulings, the participation of judges appointed under current procedures is already treated by domestic lower courts as an absolute ground of appeal.

Does this mean that Poland will act upon this ruling? It looks like the Polish government will act, but not necessarily because of the case of Reczkowicz and not the actions one might have hoped for.

The Member States of the Council of Europe have, in principle, three obligations following an adverse ruling from the Court: (1) to make payment of compensation, if awarded; (2) if necessary, to take further individual measures in favour of the applicant, that is to put a stop to the violation found by the Court and to place the applicant, as far as possible, in a position that existed prior to the breach (Akdivar and others v Turkey, para. 47); and (3) to take measures of a general character in order to ensure non-repetition of similar violations in the future (Broniowski v Poland, para. 193). Where a violation is rooted in deficiencies within the domestic legal order which have the potential of affecting a large number of persons, the State is required to engage in legislative or policy reform or take other measures to eliminate such a problem and its effects.

Normally, in any democratic country, an adverse decision by the highest international judicial authority on the foundations of the “reform of the judiciary” would inevitably lead to the resignation of the minister of justice. In Iceland, in the case of Astradsson, which was somewhat similar in nature, although it concerned the appointment of a much smaller group of judges, the Minister of Justice resigned before the ruling of the Grand Chamber of the Court, and immediately after the judgment was handed down, a rehabilitation programme was implemented.

In Poland, decisions from international institutions do not receive such due respect from the current Polish government. Usually, such judgments are politicised and declared to be the result of an international conspiracy against Poland and therefore lack applicability in Polish law. To date, the Polish government has failed to act on most of the recommendations made by the Council of Europe, the EU and the UN. In view of the public utterances from leading PiS members and the current Polish Minister for Justice, it would appear that this judgment would not be treated any different, however this decision came shortly after the CJEU’s decision of 14 July 2021 to suspend the proceedings of the Disciplinary Chamber of the Supreme Court against judges and with the CJEU’s judgment of 15 July, 2021 stating that Polish law in the field of the disciplinary system of judges is inconsistent with EU law. Even then, instead of adhering to those rulings, the Polish government issued a challenge to the primacy of EU law. In response, the European Commission has delayed a decision to disburse funds to Poland from the pandemic recovery budget.

As Poland’s access to nearly 24bn euros of EU funds for its post-Covid economic recovery came under a threat, and only then, it appears, that Poland is trying to de-escalate the ongoing rule of law conflict with the EU. To avoid risking the financial sanctions, Poland proposed the dissolution of the Disciplinary Chamber of the Supreme Court and further reforms to the judiciary, indicating the controversial disciplinary chamber will be replaced by another. Though tellingly, no concrete details of the proposed reforms have been put forward by the government.

Therefore, the proposal is primarily aimed at adjusting the Polish legal order to the standards set by the CJEU in its judgment of 15 July of this year, concerning the Disciplinary Chamber of the Supreme Court. However, it is also supposed to be a response to the judgment in the case of Reczkowicz as the explanatory memorandum to the draft suggests: “Both of the aforementioned judgments – in so far as they refer to the Disciplinary Chamber of the Supreme Court – leave no illusions that the continued operation of the said Chamber will be classified as a serious breach of obligations that the Republic of Poland has assumed by ratifying both the Treaty on the European Union and the European Convention on Human Rights.”

There appears little hope for real change in the Polish government’s attitude towards the decisions coming from ECtHR and the EU. Poland is likely to do the bare minimum to receive the funding. Nonetheless, it is essential that the Council of Europe, the EU and the UN, keep putting pressure on the Polish government to make appropriate legislative changes to bring the judiciary in line with the rule of law and the values and principles at the core of the Council of Europe and the EU and the Polish Constitution. Void of such pressure, the Polish government is likely to continue its current track of rule of law violations with long lasting adverse effects on fundamental freedoms and human rights in Poland. 

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