November 23, 2022
By Joseph Finnerty[*]
The rule of law crisis in Poland is not new, but the engagement of Article 18 ECHR with this context is. In Juszczyszyn v. Poland, the ECtHR delivered its first Article 18 violation judgment against Poland. The case concerned the legal reforms that the Polish political ruling party (PiS) has adopted since 2015 aimed at discouraging domestic ‘courts from scrutinizing and criticizing the political power and – as a consequence – to use them to implement the agenda of this power.’ The reforms have included measures to discipline and remove existing judges as well as measures to appoint new ones through the Polish National Council of the Judiciary (‘NCJ’). After summarising the facts and the judgment, this post’s comment briefly addresses the duty to exhaust domestic remedies and then analyses the Article 18 reasoning in the case. For readers unfamiliar with the emerging provision, Article 18 is applied in conjunction with another ECHR provision and serves to identify instances when states restrict ECHR rights for illegitimate ulterior purposes.
The applicant in this case is Mr Juszczyszyn, a Polish district judge of nineteen years. While on secondment to the Olsztyn Regional Court, in November 2019, he resided over an appeal. During these proceedings, he issued a court order requiring the relevant Polish authorities to produce details relating to the appointment of the first instance judge, Judge D.I.. Judge Juszczyszyn contended that this order was issued to clarify whether the first instance court, specifically Judge D.I’s appointment, had complied with the requirement of judicial independence under EU law. Five days after issuing this order, the Ministry of Justice terminated the applicant’s secondment. The following day, the applicant made a statement to the media calling for Polish judges to adjudicate independently and courageously. He faced disciplinary action two days later, initiated by Deputy Disciplinary Officer for Ordinary Court Judges, and was subsequently suspended. In February 2020, the Disciplinary Chamber of the Supreme ‘Court’ (‘DC’) found that the applicant’s suspension was justified and reduced his salary by 40% for the duration of his suspension. The DC eventually lifted the applicant’s suspension in May 2022, considering that the applicant never faced a real risk of removal from office and, accordingly, that any suspension was unjustified. The applicant was then placed on leave until July 2022 and later transferred from the civil bench to the family bench by the President of the Olsztyn District Court.
The applicant submitted complaints under Article 6, Article 8, Article 1 of Protocol No. 1 and Article 18 in conjunction with Article 8. Under Article 6 § 1, he complained that the DC’s composure violated his right to a ‘tribunal established by law’ and that the facts of the case also disclosed a breach of his right to an ‘independent and impartial tribunal’. The applicant further complained that his suspension violated his right to respect for his private life under Article 8 and that his salary reduction violated his rights under Article 1 of Protocol No. 1. The applicant also complained that his disciplining had pursued an ulterior purpose under Article 18.
The ECtHR dismissed the Governments’ admissibility objections concerning the non-exhaustion of domestic remedies under Article 35 § 1. Relying on its previous findings in Advance Pharma sp.z o.o. v Poland and Reczkowicz v. Poland, the ECtHR maintained its position that the judicial reforms in Poland are aimed ‘at incapacitating it in the exercise of its adjudicatory function in the application and interpretation of the Convention’ and present an ‘affront to the rule of law and the independence of the judiciary’ (para. 150, citing Advance Pharma). It followed that any recourse to the constitutional complaint mechanism held ‘no sufficiently realistic prospects of success’ (para. 149, citing Advance Pharma). The ECtHR further declared that the alternative remedies, cited by the Polish Government, are ineffective (para. 155). The ECtHR also rejected preliminary objections concerning compatibility ratione materiae, save for the one relating to Article 1 of Protocol No. 1, considering that the deducted salary was never actually earned by the applicant (paras. 344-345).
Turning to the merits, the ECtHR continued to follow its burgeoning case law on the Polish rule of the law crisis. The ECtHR’s conclusions pertaining to the applicant’s first complaint under Article 6 § 1 followed its Reczkowicz precedent, maintaining that the DC is not a ‘tribunal established by law’ on account of its lack of independence vis-à-vis the Polish Executive (para. 209). Addressing the applicant’s second Article 6 § 1 complaint, the ECtHR once again followed its own precedent, namely Reczkowicz and Advance Pharma, holding that the
inherently deficient procedure for judicial appointments to the Disciplinary Chamber of the Supreme Court (…) compromised the independence and impartiality of the same court (paras. 214-215, citations omitted)
Examining the Article 8 complaint, the ECtHR noted the severity of the effects of the applicant’s suspension, on him, in recognising an interference (para. 259). The ECtHR considered that the interference was not ‘in accordance with the law’, and accordingly violated Article 8, for two reasons. Firstly, the suspension of domestic judges must come from a court to be in accordance with domestic law (Article 180 § 2 of the Polish Constitution) and the DC is not a court because it is not an ‘independent and impartial tribunal’ (paras. 265-269). Secondly, the suspension decision was so manifestly unreasonable that the applicant could not foresee that the issuance of his order could lead to his suspension (para. 280).
Turning to the applicant’s Article 18 complaint, in conjunction with Article 8, the ECtHR held that the question of whether the applicant’s suspension pursued the ulterior purpose of sanctioning him and dissuading him from verifying the lawfulness of the appointment of judges was a fundamental aspect of the case (para. 317). The ECtHR further held that if there was indeed such an ulterior purpose, it would need to examine whether that ulterior purpose was the predominant purpose behind the restriction on the applicant’s Article 8 rights (para. 321), in light of the assumed legitimate aim of protecting the rights and freedoms of others (para. 320).
The ECtHR first started by recalling its Article 6 reasoning and its findings in its previous Polish rule of law judgments (Reczkowicz, Advance Pharma and Grzęda v. Poland) to recognise the general incapacitating aims of Polish legal reforms (paras. 322-323). Zooming in on the applicant’s case, the ECtHR highlighted the chronology of events culminating in disciplinary action, in particular the reactionary public comments from the Ministry of Justice concerning the applicant (para. 324), as well as the fact that all disciplinary decisions were taken by the Minister of Justice, his appointees or judges installed by the procedure the applicant was looking to scrutinise with his original order (para. 326) and the manifest unreasonableness of the DC suspension issuing decision (para. 328).
The ECtHR then returned to the broader context to further corroborate its findings that the authorities intended to sanction judges that questioned new judicial appointments, having regard to the relevant CJEU findings (paras. 331 and 335), the adoption of the notorious Polish ‘muzzle law’ (paras. 329-331), specific Polish Constitutional ‘Court’  judgments (para. 332) and the respective views of the Venice Commission (para. 330) and the Parliamentary Assembly of the Council of Europe (para. 336). The ECtHR concluded that
the predominant purpose of the disciplinary measures (…) was to sanction the applicant and to dissuade him from assessing the status of judges appointed upon the recommendation of the recomposed N[ational ]C[ouncil of ]J[udges] (para. 337)
Two partly dissenting opinions were annexed to the judgment. Judges Wojtyczek and Paczolay offered alternative reasoning leading to an Article 6 violation, but argued that the facts of the case did not fall within the ambit of Article 8 and that, consequently, Article 18 could not apply either. While Judges Bošnjak, Schembri Orland and Ktistakis argued in favour of awarding the applicant pecuniary damages under Article 41, considering his salary loss.
This comment will raise one point on the ECtHR’s approach to the duty to exhaust domestic remedies (A), before addressing three points on this judgment’s engagement with Article 18, namely (B) the assessment of evidence to determine an ulterior purpose, (C) the persisting and troublesome predominant purpose test and (D) the contribution of Article 18 to the Polish rule of law crisis.
One strand of analysis which is emerging from the Polish rule of law crisis concerns the applicant’s duty to exhaust domestic remedies, when systemic effectiveness issues have been identified in respect of national courts, before filing an application with the ECtHR (see here). In contrast to its Advance Pharma judgment, where the ECtHR elected to join the exhaustion of domestic remedies preliminary objection to the merits (Advance Pharma, para. 238), Juszczyszyn deals with the matter in admissibility. This slightly altered approach increases the generalisability of the ECtHR’s views on the (in)effectiveness of Poland’s constitutional complaint mechanism by formally detaching its reasoning from the merits of this individual case. Interestingly, the ECtHR considered it unnecessary to examine the applicant’s complaint that the Polish Constitutional ‘Court’ is not an effective remedy as a whole, owing to its lack of independence and impartiality, and is not required to be exhausted (para. 153). This restraint did, however, come with a warning concerning the Polish Constitutional ‘Court’s’ interpretation of the ECHR and apparent attempts to restrict the ECtHR’s jurisdiction in its recent jurisprudence (para. 152).
This more critical approach to the duty to exhaust domestic remedies sits in contrast to the ECtHR’s previous approach in the Turkish and Hungarian contexts and this differentiation certainly merits more detailed comparative analysis.
This judgment presents a thorough and compelling analysis of all sources of evidence to establish that the disciplinary measures against the applicant pursued an ulterior purpose. Flowing from the discussion on the duty to exhaust domestic remedies, and the ECtHR’s emboldened criticism of the Polish Constitutional ‘Court’, Juszczyszyn is the first Article 18 judgment which utilises the jurisprudence of a national constitutional court as contextual evidence of an ulterior purpose (para. 332). The ECtHR drew from a plethora of other contextual evidence to corroborate the more proximate evidence (see the respective references in the Judgment section above) to promulgate the fact that the applicant was disciplined to dissuade him from questioning the independence and legitimacy of judges. The ECtHR’s almost exhaustive evidential review adds more weight to its finding of such an ulterior purpose and makes it difficult to refute.
Established by the ECtHR in Merabishvili v. Georgia, the predominant purpose test requires that the state’s ulterior purpose be the main purpose behind the relevant restriction. Criticism of the test, specifically its risk of normalising bad faith, has already been made. The fact that the test did not deprive the applicant of a violation, in this case, should not distract one from the arbitrary ‘normalisation’ risk that the test continues to pose. The test’s application here appears to have saved Poland some face and led the ECtHR to assume that the applicant’s suspension pursued the legitimate aim of the protection of the rights and freedoms of others. In other words, the test has allowed Poland to benefit from limited recognition that their judicial reforms have a partially legitimate basis. It is not possible to reconcile this assumption with the ECtHR’s evidential analysis under Article 18 or Article 6. The effect of such a finding partially undermines the strong evidence based conclusion of the ECtHR establishing the presence of an ulterior purpose.
The ECtHR could have sidestepped this criticism by scrutinising the veracity of any proposed legitimate aims under its Article 8 assessment, in addition to its Article 18 predominance analysis. The ECtHR has proceeded to assess subsequent criteria under the tri-partite limitations test (in accordance with the law, legitimate aim and necessary in a democratic society) even where it deems an earlier stage of the test has not been met in other cases (see Baka v. Hungary).
Whenever Article 18 is argued, the ECtHR’s reasoning would benefit from a legitimate aim analysis in respect of the right Article 18 is argued in conjunction with. More effective scrutiny of legitimate aims would allow the ECtHR to better assess the presence of ulterior purposes: piercing the veil earlier and with a more suited tool. Conversely, a failure to effectively scrutinise the veracity of alleged legitimate aims, paired with a willingness to accept unsubstantiated legitimate aims on an assumptive basis, may yet unleash the true arbitrary normalisation risks associated with the predominant purpose test.
The ECtHR disregarded the systemic element of the applicant’s complaint and, as a result, confined itself to finding an ulterior purpose specific to the applicant. Juszczyszyn’s communication records the applicant’s Article 18 complaint as referring to a systematic dissuasion aim targeting not only him, as an individual, but also other judges. However, in its judgment, the ECtHR omits any references to other judges in its recital of the applicant’s complaint (para. 283). The author does not have access to the pleadings in this case and cannot insist that the communicated complaint wording continued to include ‘other judges’ throughout proceedings; however, references to the applicant’s pleadings in other parts of the judgment include repeated Article 18 based arguments as to the dissuasive effect on other judges (see paras. 289, 290 and 348) and the Government appears to have responded to such systemic ulterior purpose allegations (see para. 299).
The ECtHR’s wording of the identified ulterior purpose(s) in a way that individualises systematic efforts by states to silence entire groups attempting to defend a liberal democracy (judges, NGOs etc) unnecessarily limits Article 18’s potential to contribute to the Polish context. The provision is used by the ECtHR to try and save the scapegoat, but ignores the system of scapegoating.
The ECtHR’s application of Article 18 in this case breaks new ground for the provision’s doctrine. Unlike its previous discussions on incorporating broader contextual evidence and circumstantial evidence proximate to the individual facts of the case, the ECtHR appears to be more attentive and holistic in its analysis of evidence, making findings of fact that lend themselves to recognising a systemic ulterior illegitimate purpose. However, this commendable evidentiary analysis, indicating no legitimate aim, is undermined by the ECtHR’s arbitrary recognition of one such aim on the back of Article 18’s predominant purpose test and a watering down of its wording of the ulterior purpose identified.
Overall, the finding of an Article 18 violation in this case does not add much to the existing ECtHR contribution to the Polish rule of law crisis under Article 6. To improve Article 18’s contribution to the future Polish rule of law cases (see here and here), the ECtHR should critically scrutinise the existence of any proposed legitimate aim, before embarking on the risky quest to determine predominance, and frame any ulterior purpose to the reflect the full extent of any state hidden agenda.
[*] The author is grateful to Prof. Başak Çalı, Dr. Grażyna Baranowska and Tobias Mortier for their insightful comments. All errors are solely attributable to the author.
 The ECtHR translates the Polish Constitutional Tribunal (Trybunał Konstytucyjny) as the Polish Constitutional Court. This post mirrors this to assist cross-reading with the judgment. The use of singular quotation marks is not adopted by the ECtHR and instead serves to reflect the author’s view that neither the Polish Constitutional Tribunal nor the DC can be considered or recognised as courts on account of their lack of independence.