The Duty to Exhaust Remedies with Systemic Deficiencies

On 3 February 2022, the European Court of Human Rights issued its judgment in Advance Pharma sp. z o.o v Poland and addressed for the first time the question of whether an applicant is required to exhaust domestic remedies that suffer from systemic deficiencies. While the Court does not yet give a clear answer to this particularly sensitive issue, this case is another reminder of just how difficult it is for the Convention system to engage with countries that structurally impair their judicial system.

The Advance Pharma Case

In the Advance Pharma case, the Court had to decide whether seven judges that were appointed to the Civil Chamber of the Polish Supreme Court by the newly composed National Council of the Judiciary could be seen as a tribunal established by law. It unanimously decided that this was not the case. For those who were following the case law of the Strasbourg Court, this decision was far from surprising. The Court simply applied the three-step test it set out in its 2020 Ástráðsson judgment (discussed here and here) and more or less copy-pasted its reasoning in its judgment of Dolińska-Ficek and Ozimek (concerning the Chamber of Extraordinary Review and Public Affairs), which itself was basically a carbon copy of the judgment in Reczkowicz (concerning the Disciplinary Chamber, discussed here).

Nevertheless, the Advance Pharma case also addressed a novel issue of particular importance. The Polish government mounted the defence that the complaint was inadmissible since the applicant company had not exhausted all potential domestic remedies, as it could have lodged a constitutional complaint with the Constitutional Court. The applicant company, in turn, argued that the Constitutional Court could not be seen as an adequate and effective remedy given the constitutional crisis that affected its composition. In fact, the ECtHR had itself already ruled in Xero Flor (discussed here and here) that that court could not be deemed a tribunal established by law in its current composition. Whereas the Court managed to somewhat sidestep this question in Advance Pharma, it seems only a matter of time before it will have to take a clear stance on the delicate issue of exhaustion of domestic remedies in judicial systems with systemic deficiencies.

Europe’s Broken Pyramids

Article 35 ECHR requires applicants to exhaust all domestic remedies before lodging an application to the ECtHR. This provision is a concrete expression of the idea of subsidiarity on which the entire Convention system is premised. Any applicant has to give the national authorities every opportunity to rectify an alleged violation before going to the Strasbourg Court. In practice this means that the apex courts are often the final domestic authority to decide on a case before it is brought before the Court. In a traditional pyramid-shaped legal order, such apex courts provide a single focus point between the national legal order and the Strasbourg Court. They are the interlocuteurs naturels with the ECtHR, the privileged conversation partners in the ongoing judicial dialogue between the national and European legal orders.

The duty to exhaust domestic remedies, however, comes with an important condition. Only effective remedies have to be exhausted. The question then is whether apex courts that do not fulfil some of the structural requirements of the right to a fair trial – i.e. be independent and established by law – can ever be considered effective. Intuitively, it is not difficult to see that a court that does not satisfy those guarantees cannot inspire a lot of confidence as a truly effective remedy. While the Court has never explicitly ruled on this issue, one can find support for such a position in several judgments on Article 13 (the right to an effective remedy). This article and the duty to exhaust effective domestic remedies in Article 35 ECHR make up two sides of the same coin. In older judgments like Leander or Silver, the Court examined whether the domestic authority was sufficiently independent and offered sufficient procedural guarantees to be considered an effective remedy. More recently, in Merit, the Court held that Ukrainian prosecutors were not an effective remedy since they were not completely independent. Furthermore, in the area of expulsion of immigrants, the Court explicitly states that Article 13 ECHR requires that the deportation decision may be challenged before a domestic forum that offers adequate guarantees of independence and impartiality.

If one were to apply those principles to the duty of the exhaustion of domestic remedies, it indeed seems likely that applicants are not required to appeal to apex courts that do not fulfil the conditions of being independent and established by law. Yet, one should not underestimate what this would mean for the legal orders in question and the functioning of the system of human rights protection. Individuals would be allowed to skip an appeal to the national apex courts and straightaway lodge an application before the ECtHR. In fact, they will even be required to do so, since the Court holds that appealing to a remedy that cannot be considered effective should not be taken into account for the purposes of the four-month time-limit. Put bluntly, in such circumstances the apex courts become an obsolete remedy in the Convention protection system. They are a step that one is allowed to – and in fact required to – skip. As such, the pyramid-shaped legal order, with its clear focal point between the national and the European legal systems breaks down. What’s left is a triangle with the top cut off, leaving a plane consisting of multiple hierarchically lower courts. One clear interlocuteur naturel is replaced by a multitude of courts.

A Hard Bullet to Bite

The question of whether individual applicants are required to exhaust domestic remedies when these show such structural deficiencies, and under what circumstances, will likely take centre stage in the months or years to come. In fact, after its Xero Flor judgment, I already suggested that there would come a time sooner or later where the Court would have to bite that particularly hard bullet. Since then, the issue has only become more pressing, as the Strasbourg Court has also found violations of the right to a tribunal established by law concerning three separate chambers of the Supreme Court. At the same time, the ECJ has issued similar rulings and equally found that the Disciplinary Chamber (in Commission v Poland) and the Extraordinary Review Chamber (in W.Ż.) are not established by law.

So far, the Strasbourg Court has evaded taking a clear stance on this question. In Solska and Rybicka, it found that it was not necessary to examine the applicant’s arguments relating to the alleged lack of effectiveness and independence of the Constitutional Court. In Advance Pharma, the Court held that the question of the effectiveness of the Constitutional Court as a remedy should be joined to the merits of the case. It then turned back to this issue at the very end of its examination of the first step of the Ástráðsson-test. There, it mentioned that in the particular circumstances of the case, it did not see sufficiently realistic prospects of success for a constitutional complaint. Furthermore, it considered that the effectiveness of that remedy should be seen in conjunction with the general context in which the Constitutional Court has operated since the end of 2015 and its various actions aimed at undermining the findings of the Supreme Court in the entire saga of the appointment of judges by the newly composed National Council of the Judiciary.

By joining the question of the effectiveness of the Constitutional Court as a domestic remedy to the merits of the case, the Court has again managed to avoid taking a clear stance on the issue. This choice was also criticized by judge Wojtyczek in his concurring opinion. He rightfully pointed out that while the Court may indeed join the question of the effectiveness of a possible remedy to the merits of the case, in this particular case the effectiveness of the constitutional complaint did not depend on the merits of the case and was dealt with in considerations that are independent from other matters.

Notwithstanding that valid criticism, one may also understand the Court trying to avoid the problem as long as possible. The exhaustion of domestic remedies is a difficult, often contextual issue, that does not always square easily with a clear-cut a priori assessment. Take the Constitutional Court and the requirement of establishment by law for example. In Xero Flor, the Court ruled that three judges of the Constitutional Court had been irregularly appointed and that that Court could not be considered established by law if any of them took part in a given case. Yet, the Constitutional Court is composed of 15 judges and normally rules in chambers of five or three judges. It is thus perfectly possible for that court to rule in a composition that does not include any of the three irregular judges. The applicant itself clearly has little say over the composition of the chamber that will rule on his or her dispute and will only find out after lodging the complaint. In such circumstances, one may legitimately debate whether the ECtHR can require the person in question to exhaust a possible remedy before the Constitutional Court. That same question can now also be raised with respect to the Civil Chamber of the Polish Supreme Court.

This is of course only one example and in other cases the question may certainly be a little bit easier. The two newly composed chambers of the Supreme Court are, for example, completely composed of irregularly appointed judges, which makes the assessment clearer. Yet, that does not detract from the fact that sooner or later the Court will have to take a stance on this particularly sensitive issue. On its shoulders now rests the heavy burden to strike a balance between the proper functioning of the system of domestic remedies, the uniform application of Convention standards and the access to justice of individuals. The answer it formulates will have an important impact on all individuals in a country with systemic deficiencies in the judicial system and on the entire system of the protection of Convention rights in the Council of Europe.