July 10, 2026
by Dr David Mier Galera
In Biliński v. Poland (April 15, 2026), the ECtHR once again defends the independence of Polish judges against arbitrary actions by higher judicial bodies and the National Council of the Judiciary affected by the judicial reform in Poland. The judicial reform in Poland was approved in 2017, but its effects continue to be felt to this day. Therefore, it is urgent that the necessary measures be adopted to restore the rule of law and the democratic State.
The Biliński case joins a long list of cases (Grzęda, Dolińska-Ficek and Ozimek, Reckowicz, Juszczyszyn, Wałęsa) where the ECtHR has condemned Poland for violating Article 6.1 ECHR. However, the Biliński case is novel for the case-law of the ECtHR because the Court recognises that ‘the security of tenure of judges against arbitrary transfers also covers transfers between two divisions of the same court’ (para 69). Thus, the civil nature of the controversy allows the application of Article 6.1 ECHR.
Since 2016, Judge Biliński had served as a judge at the Warsaw-Śródmieście District Court, specifically in the 11th Criminal Division, where his caseload primarily involved administrative offences. Between 2018 and 2019, Judge Biliński ruled on several high-profile freedom of expression cases that attracted significant media attention, such as public demonstrations against judicial reform. The government perceived the adjudication of these cases as contrary to its interests.
On December 3, 2018, and January 18, 2019, Judge Biliński requested that the President of the District Court, Judge Mitera, transfer him to another Criminal Division within the same court to broaden his professional experience. Judge Mitera had been appointed President of the Warsaw-Śródmieście District Court in 2018 by the Minister of Justice, Mr. Ziobro, and was subsequently appointed as a member of the National Council of the Judiciary for the 2018–2022 term. In this regard, it is noteworthy that Judge Mitera was employed at Mr. Ziobro’s Ministry of Justice during the preceding two years.
In March of 2019, the Minister of Justice abolished divisions across 14 district courts, including the division of the Judge Biliński. On June 17, 2019, the Vice-President of the Warsaw-Śródmieście District Court requested the Board of the Regional Court of Warsaw to issue an opinion regarding the applicant’s transfer to the 3rd Family Division of the same court. Under Polish law, a report from the Board constitutes a mandatory prerequisite for the transfer of a judge.
Despite the applicant’s formal opposition to the transfer and the fact that the Board had not yet issued its report, the presiding judge, Mr. Mitera, transferred Judge Biliński to the Family Division of the same court, effective July 1. The decision failed to specify the legal basis for the transfer. Furthermore, it should be emphasised that the Board had postponed issuing its opinion pending the judgment of the Court of Justice of the European Union (CJEU) in the A.K. case.
On July 10, Judge Biliński challenged his transfer before the National Council of the Judiciary (NCJ). In his appeal, the applicant alleged that his transfer violated Article 6 ECHR, contending, first, that it constituted a ‘quasi-disciplinary’ measure and, second, that it had been executed arbitrarily, thereby infringing upon his judicial independence. Additionally, the applicant requested both the recusal of Judge Mitera from the review of his case and the stay of the proceedings until the CJEU resolved the A.K. case. The applicant’s motion was supported by the Polish Commissioner for Human Rights.
While the appeal was pending before the NCJ, on July 22, 2019, the Regional Court of Warsaw annulled Judge Biliński’s transfer, declaring it unlawful as it had been executed without the mandatory opinion of the Board. However, the judgment of the Regional Court remained without practical effect and was not executed. First, the NCJ dismissed Judge Biliński’s appeal; second, Judge Mitera, in his capacity as President of the District Court, notified the Regional Court of Warsaw that he would not annul the transfer. This decision was issued without legal justification. Consequently, Judge Biliński was transferred de facto to the Family Division.
Judge Biliński alleges a violation of his right to judicial independence, as well as his right to a review of his transfer by an independent body (Article 6.1 ECHR). The applicant asserts, first, that the National Council of the Judiciary does not constitute an independent body and, second, that he was deprived of any opportunity to lodge a judicial appeal against the decision of the Council. Prior to analysing the merits, it is appropriate to examine the ECtHR’s ruling regarding the admissibility.
The Polish Government requested that the application be declared inadmissible, arguing, first, that there is no substantive right to hold a specific position within a court, and second, denying the civil limb of the dispute. More specifically, the Government contested the applicability of Article 6.1 ECHR, maintaining that the matter fell strictly within the ambit of public law. The ECtHR dismissed all of the Government’s preliminary objections.
In the first place, the ECtHR considers that the applicant is asserting a conventionally recognised right: the security of tenure of judges against arbitrary transfers (Article 6.1 ECHR). The ECtHR notes that in the Bilgen v. Turkey, it had already recognised the right of ‘a member of the judiciary to protection against an arbitrary transfer, albeit between two distinct courts’. In the present case, the Court seeks to determine whether that right may cover transfers between two divisions of the same court. The ECtHR answers this question in the affirmative (para 69). To justify the application of article 6 ECHR regarding the internal transfers of judges, the ECtHR invokes its own findings in Bilgen and the case-law of the CJEU (W.Z. case) (paras 68 and 69). In any event, the ECtHR reiterates that Article 6.1 ECHR does not apply to temporary transfers that do not significantly alter the tasks and functions performed by the judge (citing the precedent Vanchev v. Bulgaria) (para 70). Nonetheless, in the present case, a significant change did occur because the transfer required the judge to adjudicate cases in a different area of law (para 71).
To decide whether an arbitrary transfer took place, the ECtHR examined the circumstances of the case. More specifically, the Court highlights that: i) the judge had adjudicated high-profile, media-sensitive cases and had been criticised by the government; ii) the President of the District Court had had a direct professional connection to the Ministry of Justice and had approved the transfer without the opinion of the Board; and iii) the Polish Commissioner for Human Rights had also expressed doubts regarding the circumstances surrounding the transfer (para 73). Taken together, all the elements raise legitimate doubts regarding the potentially arbitrary nature of the transfer.
In the second place, the ECtHR confirms that the dispute (concerning matters that affect the professional status of judges) possesses a civil nature and, consequently, judges are entitled to access the court to protect matters concerning their security of tenure (Article 6 ECHR). (Baka, Grzęda, Dolińska-Ficek and Ozimek, Bilgen). However, in every labour dispute regarding the statute of judges, the ECtHR will apply the Vilho Eskelinen test to determine whether the State could deprive the judge of their right of access to court (Article 6 ECHR). The ECtHR accepts the exclusion of the judge’s subjective right if two conditions are cumulatively met: i) the State’s domestic law must have excluded access to a court; and ii) the exclusion must be justified on objective grounds in the State’s interest (para 77).
The ECtHR applies the requirements of the Vilho Eskelinen test to the present case. Regarding the first condition, the ECtHR confirms that domestic law did expressly preclude judges from lodging appeals (judicial review) against decisions to transfer them, against their will, to another division of the same court. Nonetheless, the ECtHR considers that the second requirement of the Vilho Eskelinen test is not satisfied. In this scenario, the transfer of the judge Biliński cannot be justified as ‘the use of state sovereign powers’ (para 81). In this sense, the ECtHR reiterates that ‘relationship of the judge with the State must therefore be understood in the light of the specific guarantees essential for judicial independence and the principle of irremovability of judges. Thus, when referring to the special trust and loyalty that they must observe, it is loyalty to the rule of law and democracy and not to holders of State power’ (para 80). Therefore, the ECtHR concludes that the case fell under the scope of Article 6.1 ECHR and, consequently, that it was admissible.
Regarding the merits of the case, the applicant alleges, first, that his involuntary transfer was not reviewed by an independent body (the National Council of the Judiciary) and, second, that he was deprived of the opportunity to lodge a judicial appeal against the decision of said Council.
The ECtHR reiterates that all litigants are entitled to an ‘effective judicial remedy enabling them to assert their civil rights’ (para 27). Likewise, the ECtHR recognises that, although a body may not be classified as a court under domestic law, it may be considered as such for the purposes of Article 6.1 ECHR, provided it meets certain substantive requirements. In this manner, the ECtHR characterises tribunals as bodies distinguished by the exercise of a judicial function, ‘that is to say determining matters within its competence on the basis of the rule of law, with full jurisdiction, and after proceedings conducted in a prescribed manner’ (para 110). More specifically, to be considered a tribunal, the body in question must be independent—from both the executive and the parties (para 110). To determine whether a body constitutes an ‘impartial and independent tribunal’ and a ‘tribunal established by law,’ the ECtHR relies on its own case law (Denisov v. Ukraine and Guðmundur Andri Ástráðsson v. Iceland; para 111).
In the case at hand, the transfer of Judge Biliński was appealed before the National Council of the Judiciary. Although judicial councils are generally not considered judicial bodies, the ECtHR has recognised that, in cases such as the present one, these councils can indeed operate as tribunals for the purposes of Article 6.1 ECHR (para 115). However, as previously stated, to be considered ‘tribunals,’ judicial councils must satisfy specific requirements. In this regard, the ECtHR had already previously concluded that the Polish National Council of the Judiciary cannot be considered an impartial or independent body (Wałęsa; Dolińska-Ficek and Ozimek) (paras 113 and 116). Furthermore, the lack of independence of the judicial council is exacerbated due to the specific circumstances of the case, in particular the failure to provide reasons for its resolution, or the fact that the applicant was not heard.
Finally, the ECtHR notes that Polish law expressly prohibited the resolution of the National Council of the Judiciary from being appealable before the courts (para 119). Consequently, the Polish legal order deprived the applicant of his right to a judicial appeal against decisions affecting civil disputes regarding his professional status. Therefore, the ECtHR declares a violation of Article 6.1 ECHR.
In the Biliński case, the ECtHR once again steps in to defend the deteriorated Polish rule of law and the independence of its judiciary. Over the past decade, the ECtHR has repeatedly defended Polish judges against arbitrary transfers, sanctions, and dismissals. Thus, the ECtHR has declared the aforementioned acts to be violations of Article 6 ECHR, and more specifically, it has condemned Poland for violating the right of Polish judges ‘to be tried by an impartial and independent tribunal’ and by a ‘tribunal established by law.’ (Grzęda, Dolińska-Ficek and Ozimek, Reckowicz, Juszczyszyn, Wałęsa).
Transfers, dismissals, and sanctions have frequently been decided by a body lacking independence and impartiality, namely the National Council of the Judiciary. Furthermore, the Polish State has prohibited judges from seeking judicial review of these decisions concerning their professional status. In this context, Strasbourg has defended the judge’s security of tenure as well as their right to appeal decisions affecting their employment—both of which constitute safeguards to protect the independence and impartiality of the judge and, consequently, of the democratic rule of law.
The judgment in the Biliński case defends the independent status and security of tenure of the judge at both the admissibility stage and on the merits. Regarding the examination of admissibility, first, as previously stated, the ECtHR recognises that cases in which a judge is involuntarily transferred to another division of the same court also possess a civil nature, thereby rendering Article 6 ECHR applicable. This constitutes the major novel element of the case. Second, concerning admissibility, the ECtHR consolidates the Vilho Eskelinen test and—following the precedent established in Bilgen—reiterates that the State cannot prevent a judge from accessing the courts to defend their professional status because the judge ‘has a relationship of trust and loyalty to the Rule of Law and democracy, and not to holders of state powers.’ (para 80)
With respect to the merits, the ECtHR confirms the judge’s right to a judicial appeal against decisions affecting them. In this regard, the ECtHR accepts that either the appeal is lodged before judicial councils—since judicial councils can act as ‘tribunals’ for the purposes of Article 6.1 ECHR, provided they comply with certain guarantees—or that the decision of the national council of the judiciary is judicially reviewed. In the Polish case, the ECtHR denounces, first, that the National Council of the Judiciary cannot be considered a tribunal for the purposes of the ECHR because it is not an independent body, and second, that domestic law does not provide for the possibility of lodging a judicial appeal against the decisions of the National Council of the Judiciary.
The foregoing constitutes the legal core of the Biliński case. However, the judgment allows for several additional reflections. First, the ECtHR highlights that while, on one hand, the Polish Constitution recognises the principle of security of tenure and judicial independence, on the other hand, the law grants wide discretion to court presidents regarding career management and judicial administration (paras 63-65). The Court points out a tension that has been previously highlighted by authors such as Kosař—who warns against the dangers of the vast power enjoyed by court presidents in Eastern Europe—which must be corrected both to prevent court capture and to restore public trust in the judiciary.
Second, the judgment offers a glimpse into the immense value that the ECtHR places on the observations of autonomous national human rights institutions. More specifically, the ECtHR cites the Polish Commissioner for Human Rights to substantiate the arbitrary nature of the transfer, demonstrate the civil nature of the dispute, and, consequently, admit the application (para 73).
Third, the ruling reveals the urgency of reforming the National Council of the Judiciary to ensure its independence in accordance with European standards. As long as the council remains a body whose composition is unduly influenced by political organs, it cannot be considered an independent body, and consequently, its decisions will be flawed from the perspective of Article 6.1 ECHR.
Fourth, once the ECtHR declares a violation of the right under Article 6.1 ECHR, it does not deem it necessary to analyse the applicant’s allegations regarding the existence of a violation of the subjective right to judicial independence (paras 122-123). Unlike the Inter-American Court of Human Rights (IACtHR) recognised in Quintana Coello v. Ecuador, the ECtHR has not declared that judges possess a subjective right to be independent. However, this has not prevented the Strasbourg Court from defending a robust independent status for judges as a guarantee to preserve the right to a fair trial, as well as the integrity of the Rule of Law.
The Biliński v. Poland case strengthens the Strasbourg standard regarding judicial independence and the rule of law, particularly concerning the involuntary transfers of judges. The ECtHR protects the right of judges to seek judicial review against these acts and, by doing so, shields the security of tenure of judges from the arbitrary actions of previously captured courts or constitutional bodies. Although in this context, the ECtHR can identify the challenges that the restoration of the rule of law faces in Poland—such as redefining the court presidents’ powers or redesigning the method for electing judicial members of the National Council of the Judiciary—in the end, it is up to the national authorities to find a solution. In this regard, it is necessary to recall that bodies such as the Venice Commission possess a broad and extensive acquis in matters of democratic restoration that can be highly useful for all States confronting such processes.
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.
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