December 08, 2023
By Mathieu Leloup
Polish rule of law cases are by no means still a novelty at the European Court of Human Rights. Over the course of the last couple of years, the Court has ruled on a wide variety of aspects concerning the Polish legal “reforms” of its judiciary, going from the composition of the Constitutional Tribunal (Xero Flor), and several chambers of the Supreme Court (Dolińska-Ficek, Advance Pharma, Reczkowicz), over the legislative removal of former members of the National Council of the Judiciary (NCJ) (Grzęda and Żurek), to the lowering of the retirement age of judges (Pająk). On 23 November, the Court issued its 10th rule-of-law related judgment against Poland, tackling once more an entirely novel issue. In Wałęsa, the Court had to rule on the extraordinary review procedure that lay open before the Supreme Court’s Chamber of Extraordinary Review and Public Affairs (CERPA). In one of its most forceful judgments to date, the Court razed this procedure to the ground. What is more, at the end of the judgment it clearly pointed out the various systemic problems in the Polish judicial system as they had been established in this and previous judgments, and applied the pilot-judgment procedure. In this sense, the Wałęsa judgment marked a culmination of over two years of Polish rule-of-law cases, and a Court quite clearly fed up with the lack of progress.
To properly understand the Wałęsa judgment, one must go back to the 2017 judicial reforms in Poland. One key part of those reforms was to establish a new chamber within the Supreme Court, the CERPA, which was filled with new judges, appointed by the newly composed NCJ. The CERPA was given sweeping competences with respect to the judiciary, and moreover received the power to revise legally binding judgments by way of “extraordinary control”. In this new system, a number of designated institutional actors, such as the Prosecutor General, could challenge and reopen legally binding judgments. This new extraordinary review procedure immediately attracted strong criticism from various national and international actors. The Venice Commission, for example, held that it jeopardized the stability of the Polish legal order and should be given up.
The facts of the Wałęsa case are rather complex and go back to the beginning of the millennium. The applicant in the case was Lech Wałęsa, former President of Poland. In 2000, in the context of the presidential elections, there was discussion in political and media circles about the question whether Wałęsa had been a secret collaborator with the communist security services. Some of the most vocal public statements in that regard had come from the circles of members and supporters of the PiS party. In 2005, Wyszkowski, who was connected to the PiS party, made a public statement in a news program that Wałęsa had been a secret collaborator and had received money for it. In reaction to these statements, Wałęsa lodged a civil claim for defamation, which he ultimately won before the Gdańsk Court of Appeal in March 2011.
However, in January 2020, the Polish Prosecutor General initiated an extraordinary review procedure before the CERPA. The Prosecutor General argued that this extraordinary review was necessary in Wałęsa’s case, since the impugned judgment had breached the principles, freedoms and rights of every human being and citizen, by protecting Wałęsa’s reputation at the expense of Wyszkowski’s freedom of expression. In April 2021, the CERPA indeed reversed the Court of Appeal judgment.
Wałęsa appealed to the Strasbourg Court against this reversal, invoking violations of Article 6, Article 8, Article 13, and Article 18 ECHR.
The Wałęsa judgment should and probably will get more detailed scholarly attention in the months to come. With 112 pages, it is not only a long judgment, it is also a very rich judgment, with far too many elements on a wide variety of topics to discuss in detail in a blog post of this length. For this reason, this post will not apply the usual structure of first summarizing the judgment and then explaining its importance, but will immediately delve into three of the most notable aspects of the ruling, each time briefly explaining the Court’s reasoning and then pointing to their importance: (i) the extraordinary review procedure and Article 6 ECHR; (ii) the Court’s reasoning finding a violation of Article 8 ECHR; and (iii) the imposition of general measures and the pilot procedure.
The applicant raised two separate complaints under Article 6 ECHR regarding the functioning of the CERPA. In a first complaint, it was argued that the applicant’s right to an independent tribunal established by law had been violated, given the way in which the judges of the CERPA had been appointed. Here, the Court did little more than repeat its findings from the Dolińska-Ficek judgment, again finding a violation.
The second complaint was novel and argued that the extraordinary review procedure before the CERPA violated the principle of legal certainty. The Court reiterated its basic case law that the principle of res judicata requires that final and binding judgments should in principle not be open to a rehearing and a fresh determination of the case. An extraordinary review procedure should not be an ordinary appeal in disguise. A departure from that principle is allowed, but only when it is necessary for circumstances of a substantial and compelling character. The Court then looked at the general features of the extraordinary review procedure in light of Article 6 ECHR and the principle of legal certainty.
The Court gave a strongly negative account of the Polish system of extraordinary review before the CERPA. It pointed out how the procedure was (i) initiated most often by the Prosecutor General, who, since the reforms in Poland, simultaneously performed the function of Minister of Justice, (ii) that the grounds to lodge such an appeal were very open-ended, which opened the door to arbitrariness, (iii) that the time limits laid down in the law were extremely broad, allowing cases from as long as 20 years ago to be reopened, (iv) that the CERPA had broad powers to reassess both law and facts, and (v) that the CERPA could not be seen as an independent tribunal established by law.
The Court then turned to the facts of the case and argued that they constituted an exemplification of the deficiencies it had just established. In its view, the extraordinary review procedure was used in this case as an ordinary appeal in disguise, reopening a case that had been closed for over nine years, and which had then been thoroughly examined at six levels of jurisdiction. The Court found no compelling circumstances that militated in favour of contesting the final judgment in Wałęsa’s case. It signaled that the Minister of Justice had seemingly pursued strong and hostile opinions of a political opponent through the state judicial mechanisms, using his exceptional statutory powers to challenge the finality of an unfavorable judgment in the case of a person who is closely related politically. For the Court, the circumstances of the case indicated the abuse of legal procedure by the state authority in pursuance of its own political opinions and motives. It therefore also found a violation of Article 6 for the second complaint related to legal certainty.
With the Wałęsa judgment, the Court – in line with various national and international actors –concluded that the extraordinary review procedure violates the Convention. The Court’s reasoning is forceful and is a scathing indictment of the way in which the procedure is given shape and how it has been abused for political motives and partisan gains. The Court’s criticism extends to essentially every part of how the procedure has been designed. It is therefore difficult to see how the Polish government might reform it in a way to make it Convention compliant. In essence, with this judgment, yet another important part of the Polish judicial reforms has been found to violate the Convention and should be repealed.
Wałęsa also lodged a complaint under Article 8 ECHR, arguing that the reversal of the final judgment in his case had constituted an unlawful interference with his private life. After finding that Article 8 ECHR applied in this case on the basis of the Denisov line of case law, the Court quite quickly found a violation. It reiterated that the phrase “in accordance with the law” also requires that the legal framework from which the interference with Convention rights emanates must be compatible with the rule of law. Yet, since the interference in this case came from the CERPA, a tribunal that was not duly independent and established by law, it could not be said to have been “in accordance with the law”.
This step from the (un)lawfulness of the judicial body that lays at the basis of the interference, to this interference not being in accordance with the law is not entirely new in the Court’s case law. It has already popped up in earlier cases such as Tuleya and Juszczyszyn. Yet, in Wałęsa the Court made this connection very explicit, stating that “by virtue of the rule of law principle, that for an interference with the rights guaranteed by Article 8 to be considered ‘in accordance with the law’ it must emanate from a body which itself is ‘lawful’ for the purposes of the Convention” (para. 290). This almost one-on-one relationship between the structural requirements in Article 6 ECHR for courts to be lawful on the one hand, and the lawfulness requirement under substantive Convention rights on the other is interesting and merits deeper consideration. While it is certainly true that the Court has for a very long time already made a connection between the requirement for an interference to be in accordance with the law and the principle of the rule of law, this had so far been more of a substantive connection: the law should not be framed in overly broad terms which give too much discretion to the executive. Yet, in these Polish judgments, the Court has started to make a more procedural link, arguing that an interference with a Convention right that stems from a court that is unlawful, is enough to find that the interference is not in accordance with the law.
While that line of reasoning might seem valid at first glance, it appears to be an important extension of one of the absolutely foundational elements of the Convention. The requirement that an interference must be in accordance with the law is present – either explicitly or implicitly – in almost all Convention rights. Does this mean then that in the future, any time a domestic court is found to be “unlawful”, this immediately also leads to a violation of any substantive rights that are applicable? The question also arises when exactly a court can be said to be “unlawful”. From the Wałęsa judgment one can see that this certainly means when the court is not duly established by law, but arguably the same can be said for courts that are not independent. Will any violation of Article 6 ECHR in those respects then also automatically lead to a violation of substantive Convention rights at play? One can certainly understand the Court’s reasoning in such a way. While, again, that would seem like an important development in the Court’s case law, the Court at no point engages with this development or its logical consequences in its reasoning. At this point, the judgment is insufficiently fleshed out.
Irrespective of the above consideration, one may expect that this idea will be relied on again in the near future, more specifically in the pending cases that challenge the 2020 decision by the Polish Constitutional Tribunal regarding abortion rights. One of the arguments by the applicants is that the interference with Article 8 ECHR is not in accordance with the law, given that the Constitutional Tribunal is not a tribunal duly established by law, as held in Xero Flor. Given the Court’s reasoning in Wałęsa, it is to be expected that the Court will happily rely on this more neutral argument to find a violation, rather than deciding on this contentious moral issue in substance. The Court has recently announced that it will rule in one of these cases next Thursday, 14 December.
The part that most distinguishes the Wałęsa judgment from previous judgments is what came after the conclusion to the various violations. In a forceful final section of the judgment, the Court decided to apply the pilot-judgment procedure regarding the Polish rule-of-law cases. It gave an overview of the relevant judgments it had already issued and highlighted the growing number of cases that had been brought before the Court. Whereas there were 57 such cases pending in November 2021, two years later that number had grown to 492. Most of those concerned an alleged violation of the right to an independent tribunal established by law due to a defective judicial appointment procedure by the newly composed NCJ. The Court then pointed to the interrelated systemic problems that lay at the root of the existing violations: (i) the primary problem must be found in the current composition of the NCJ, which raises doubts over the legality of every newly appointed judge; (ii) the CERPA, a body which cannot be seen as an independent tribunal established by law has the exclusive competence to deal with questions about the independence of Polish judges (a system that the ECJ has recently also criticized); (iii) the extraordinary review procedure violates the fair trial standards and the principle of legal certainty, which is all the more so since (iv) the CERPA is the body responsible for those reviews.
According to the Court, those interrelated systemic problems entailed repeated breaches of the fundamental principles of the rule of law, the separation of powers and the independence of the judiciary. In that light, and given the increasing number of applications, it initiated a pilot-judgment procedure. It decided to adjourn for one year all cases concerning violations of the right to a tribunal established by law of which notice had not yet been given, pending the adoption of general measures by the Polish government. However, all cases that are ready for examination will still be processed and applications that raise different issues will also still be handled.
Finally, the Court was also uncharacteristically elaborate in framing its general measures. Whereas the Court had made reference to Article 46 ECHR and general measures in earlier case like Advance Pharma and Dolińska-Ficek, it remained quite restrained in those cases. Yet, in Wałęsa, the Court gave more detailed instructions, given the Polish government’s lack of response.
These two elements, the initiation of the pilot procedure and the attention to the general measures, can be seen as a culmination of the steadily growing tensions between the Court and Poland. Given the lack of any tangible progress after two years of Strasbourg rule-of-law jurisprudence addressing the judicial reforms, and the almost open defiance of the Polish government so far, the Court is clearly stepping up its game. In doing so it also highlights the sheer scale of the systemic issues in the Polish judicial system as a consequence of the various reforms, and their effects on the functioning of the Convention system. Notably, this reaction comes soon after the recent Polish elections which will likely lead to a government without PiS. It will be incumbent on the new government to draw the necessary conclusions from the various judgments by the Court and to start undoing the enormous damage that has been done over the course of the last few years.