April 10, 2026
By Dr. David Mier Galera
Over the last decade, several Central and Eastern European countries have successively elected leaders who reject democratic values. These politicians claim the legitimacy of their popular mandate to dismantle a so-called corrupt elite and portray migrants as an existential threat to the nation’s identity. Abusing their majority mandate, they introduce reforms aimed at dismantling the system of checks and balances. To achieve their objective – dismantling institutional guarantees and capturing the state – populist governments do not resort to an abrupt rupture with legality, but rather to gradual abusive reforms. The success of this strategy often depends on the prior capture of the courts. For this reason, judicial independence becomes the primary target. Poland, from 2017 onwards, constitutes a paradigmatic example of this phenomenon.
In Poland, when the Law and Justice Party (PiS) gained control over the two branches of the state – executive and legislative, the government made plans to capture the third: the judiciary. It adopted a legislative reform designed to undermine judicial independence, particularly that of the Constitutional Tribunal and Supreme Court. This challenge to the rule of law has not remained unanswered. On several occasions, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR; the Court) have condemned Poland for violating the principle of judicial independence (see here, here or here). The case of Morawiec v. Poland (5 February 2026) illustrates how Strasbourg keeps confronting these enemies of democracy.
The applicant, Ms. Morawiec, served as a President of the criminal division of the Kraków Regional Court between 2015 and 2017, until she was dismissed by the Minister of Justice. She is also a member of the judicial association THEMIS. During her tenure as President of THEMIS, Ms. Morawiec openly opposed the government’s judicial reform and promoted a boycott of the appointment process for the new National Council of the Judiciary (KRS). THEMIS called on judges not to stand as candidates in the renewal of the KRS.
Simultaneously, in September 2020, the public prosecutor brought an action against the applicant before the Disciplinary Chamber of the Supreme Court. The prosecution requested that the judge’s immunity be lifted and charged her with three offences: bribery, abuse of power in the exercise of her office, and misappropriation of public funds. Specifically, the prosecutor accused the judge, on the one hand of accepting a mobile phone as bribe for ruling in favour of a defendant and, on the other hand, of having accepted public funds for a report she never wrote.
One month later, the Disciplinary Chamber of the Supreme Court—acting as first instance—decided to lift Ms. Morawiec’s immunity and suspended her judicial functions, reducing her salary by 50 percent. The decision was heavily criticized by several European judicial associations. The applicant appealed the decision, where she argued that the Disciplinary Chamber could not be regarded as a tribunal established by law.
The Disciplinary Chamber —acting as second instance, with a different composition—overturned the first instance’s single judge decision. First, relying on the doctrine of the Polish Constitutional Tribunal, it rejected the argument that the Disciplinary Chamber was not a “tribunal established by law.” Second, it held that the prosecutor’s accusations against Ms. Morawiec were insufficiently substantiated. Consequently, it quashed the first instance decision, reinstated her in office, and ordered that she be paid the portion of her salary that had been improperly withheld. The decision was criticized by the Minister of Justice, Mr. Ziobro.
The applicant argued that the decision adopted by the Disciplinary Chamber of the Supreme Court—lifting her immunity and reducing her salary by 50 percent—violated several Convention rights: the right to be tried by an impartial and independent tribunal established by law (Article 6 ECHR), the right to respect for private life (Article 8 ECHR), freedom of expression (Article 10 ECHR), and the right to an effective remedy (Article 13 ECHR).
The government requested that the application be declared inadmissible, because:
(i) it was incompatible ratione materiae with the Convention; (ii) the applicant had failed to exhaust domestic remedies; and (iii) the applicant had lost her victim status once the second instance of the Disciplinary Chamber annulled the first-instance decision. In any event, the government argued that the applicant’s claims should be dismissed on the merits because no violation of the Convention had occurred. What follows is a summary of the ECtHR’s reasoning regarding both admissibility and the merits of each alleged violation of the Convention.
With regard to admissibility, the Court first responded to the government by recalling that it alone is competent to determine its own jurisdiction and to interpret the Convention (Wałęsa v. Poland). Consequently, it is Strasbourg—and not the national Constitutional Court—that determines whether Article 6 ECHR applies.
In the present case, the Court considered Article 6 applicable both from the civil and the criminal perspective. With regard to the civil limb, the Court recalled that the loyalty of judges is not owed to those who hold power, but rather to the defense of the rule of law and democracy (Grzęda v. Poland). Article 6 was also deemed applicable under its criminal limb (Tuleya v. Poland; Engel and Others v. the Netherlands), since the offences imputed to the applicant clearly possess a criminal character and significantly affect her situation. At this point, the Court repeatedly referred to the case law of the CJEU, where the Luxemburg Court defended judicial independence and the primacy of EU Law (CJEU, C-448/23, 18 December 2025; C-791/19, 15 July 2021; C-204/21, 5 June 2023; paras 44-51).
Second, regarding the exhaustion of domestic remedies, the Court reiterated that the Polish Constitutional Tribunal cannot be regarded as an impartial and independent body established by law (Wałęsa v. Poland, see analysis here), and that the applicant had no possibility of lodging an appeal before the newly established Disciplinary Chamber of the Supreme Court (paras. 55-59). Third, with regard to victim status, the Court considered that the applicant had not lost that status because the second-instance decision did not address the alleged violation of Article 6 ECHR raised by the applicant (paras 68-73). Furthermore, the body deciding the appeal—even if ruling in her favour—remained the Disciplinary Chamber itself, whose impartial and independent character had already been called into question by the Court (Reczkowicz v. Poland).
As regards the merits, the Court recalled that in a previous case, Reczkowicz v. Poland, it had already applied the Guðmundur Andri Ástráðsson v. Iceland-test and concluded that the Disciplinary Chamber could not be regarded as an impartial and independent tribunal established by law. Ultimately, the members of the Disciplinary Chamber are appointed by the President of the Republic upon recommendation of the National Council of the Judiciary (KRS), a body that cannot itself be considered independent (paras 79-84). Thus, the Court ruled Article 6 ECHR was violated.
The applicant further argued that the decision of the Disciplinary Chamber violated her right to respect for private life because it damaged both her personal and professional reputation. She also claimed that the public attacks against her caused fear and distress. Contrary to the government’s position, the Court declared the complaint admissible. Relying on a consequence-based approach, the Court held that Ms. Morawiec’s private life had been significantly affected in three respects – within her inner circle, through the loss of opportunities to establish professional relationships, and through damage to her reputation (para 93). The Court further considered that the government had failed to demonstrate how domestic legal remedies constituted effective remedies capable of addressing the alleged violation of Article 8. Finally, the Court reiterated that a favorable decision is not sufficient to deprive an applicant of victim status (Article 34 ECHR) unless the authorities acknowledge the violation and provide adequate redress.
On the merits, the Court concluded that the domestic courts’ decision violated Article 8 ECHR. The Convention clearly establishes that interferences with private life must be provided for by law, pursue a legitimate aim, and be necessary in a democratic society. In the present case, the interference was not “lawful,” since – as demonstrated in the previous section – it was not adopted by an independent and impartial tribunal established by law (paras 130-137).
Lastly, the applicant claimed that the decision of the Disciplinary Chamber constituted retaliation for her criticism of the judicial reform as well as for having brought legal action against the Minister of Justice. To resolve the issue, the Court referred to its precedents in Tuleya v. Poland, Baka v. Hungary and Grzęda v. Poland. Taking into account the general context — the reorganization of the judicial power — and the specific circumstances of the case — the applicant’s criticism of the judicial reform and of the Minister of Justice, the nature of proceedings initiated by prosecutors dependent on the Ministry of Justice, and the outcome of the second-instance proceedings — the Court found prima facie evidence of a causal link between the applicant’s exercise of freedom of expression and the decision of the Disciplinary Chamber to lift her immunity and suspend her judicial duties (para 179).
This interference violated Article 10 ECHR for two reasons:
(i) it was not decided by an independent and impartial tribunal established by law; and (ii) the measure constituted a strategy of intimidation aimed at silencing the applicant and preventing her from defending judicial independence and the rule of law. Ultimately, the measure produced a chilling effect, discouraging judges from participating in public debate on matters concerning their independence (para 191).
Morawiec v. Poland is not the first case in which the ECtHR has addressed the compatibility of Poland’s judicial reform with the Convention. Indeed, the Polish saga (Grzęda, Żurek, Juszczyszyn, Tuleya, Wałęsa, and Wróbel) has enabled the Court to refine its standard regarding the rule of law and judicial independence. On multiple occasions, the Court has ruled against the validity of reforms that violated the rights of judges —particularly the right to be tried by an independent and impartial tribunal established by law, the right to private life, and freedom of expression.
In the present case, the Court consolidates the doctrine previously established in Reczkowicz while at the same time protecting judicial immunity from illegitimate interference by political power. To determine the illegitimacy of the interference, the Court analyses both procedural aspects and the broader context of the Polish judicial reform. To that end, the Court relies not only on its own precedents but also on the case law of the CJEU, thereby highlighting the interrelationship between EU law and the ECHR system.
First, at the procedural level, the Court recalls that in a previous case (Reczkowicz) it had already defined the Disciplinary Chamber of the Polish Supreme Court as a body that cannot be regarded as “an independent and impartial tribunal established by law” within the meaning of Article 6 ECHR. From this finding follows a violation of Article 6 and 8 ECHR. It is possible that the Appellate Disciplinary Chamber, being aware of the case law of the ECtHR, overruled the first instance decision to avoid yet another Convention violation in Strasbourg. If we accept this hypothesis, the case law of the Court reveals a genuine deterrent effect and shows that international courts can, albeit with limitations, contain rule of law backsliding.
To determine the lack of independence and impartiality of the courts—whether of the Supreme Court or the Constitutional Tribunal— the Court relies on the Guðmundur Andri Ástráðsson test. In Reczkowicz, the Court concluded that the Disciplinary Chamber could not be regarded as a tribunal established by law because its members were appointed by the President of the Republic upon the recommendation of the National Council of the Judiciary (KRS). This Council had been reformed in 2017 so that the majority of its members would be elected by Parliament rather than by their judicial peers. In the Polish case, the control of the parliament over the appointment of many members of the KRS — also known as the parlamentarization of the KRS’ appointment process—was viewed as a structural design flaw that enabled political authorities to gain control over the Council. Consequently, the Court considers that all judicial appointments involving the KRS are tainted.
Although the Court has never imposed a specific model of judicial councils, it appears to show a certain preference for a model in which at least half of the members of the council are judges elected by their peers. This model, however, is not without criticism. For instance, Kosař, Šipulova and Kadlec argue that such a model, rather than strengthening judicial independence, may distort the system of checks and balances in favour of the judiciary and undermine judicial accountability by reinforcing corporatism.
Regarding the right to private life, the ECtHR reinforces the doctrine it established in Tuleya and, adopting a consequence-based approach, concludes that the measure did indeed affect the applicant’s private life. Although the grounds for lifting her immunity were not directly related to her private life, the Court considers it evident that the measure had repercussions for both her personal and professional life. In this sense, the Court adopts an expansive rather than restrictive understanding of the right to private life.
Finally, in relation to judges’ freedom of expression, it is worth emphasizing that for the Court the examination of the broader context is crucial. The judgment states that, considering the Polish judicial reform alongside the applicant’s particular position, it becomes possible to identify a causal link between her criticisms and the sanction imposed. Inferring causality from the surrounding context reflects the Court’s efforts to address systemic reforms that threaten the rule of law. Moreover, the ECtHR reverses the burden of proof, by requiring the government to demonstrate that the judge was not dismissed for exercising their right to freedom of expression. At last, the Court is upholding the judges’ rights to speak out against reforms threatening the rule of law and democracy.
Morawiec provides yet another example of how the ECtHR protects judicial independence and the rule of law against attacks carried out by populist governments. In seeking to safeguard the individual rights of judges, the Court pays close attention to the broader context in which such reforms take place.
Accordingly, in determining whether a body qualifies as a tribunal established by law, the Court examines how the judicial reform altered the composition of the body responsible for judicial appointments (the National Council of the Judiciary). In assessing whether there has been a violation of the right to private life, it adopts a consequence-based approach. Finally, in determining whether there has been a breach of freedom of expression, the Court analyses the context in which the decision to lift the judge’s legal immunity was adopted. This judicial approach is crucial for enabling the ECtHR to effectively confront anti-democratic reforms that unfold in a gradual manner.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
