Hundreds of judges appointed in violation of the ECHR?

On 22 July 2021, the European Court of Human Rights issued its third judgment concerning the rule of law crisis in Poland. In Reczkowicz v. Poland the Court ruled that the Disciplinary Chamber which dismissed the cassation complaint of the applicant did not meet the standard of a “right to a court established by law” guaranteed under Article 6 § 1 the Convention. The main reason for this finding was the fact that the panel of the Disciplinary Chamber was composed of judges appointed upon the motion of the National Council of Judiciary, which, after legislative changes adopted in 2017, ceased to be an independent body. The judgment is important not only because the ECtHR reviewed the status of the Disciplinary Chamber – a controversial body that was also the subject of a recent CJEU judgment – but also because it seems that the reasoning of the Court can be applied to hundreds of other newly appointed judges.

Article 6 ECHR and the Polish Disciplinary Chamber

The applicant in the Reczkowicz case was a barrister on whom the disciplinary courts of bar association imposed a disciplinary penalty. The applicant filed a cassation complaint to the Polish Supreme Court, but the Disciplinary Chamber dismissed it. In this situation, the applicant turned to the European Court of Human Rights. She alleged violation of Article 6 § 1 of the ECHR on the ground that the Disciplinary Chamber which adjudicated in her case was not an “independent and impartial tribunal established by law”.

The ECtHR reviewed the case through the prism of the standard of a right to a tribunal established by law, without separate examination of independence and impartiality of court. The fundamental legal problem was whether the new model of election of judges-members of the National Council of Judiciary (by the Sejm, instead of judges themselves) negatively affected the legality of process of judicial appointments.

While analysing the case, the ECtHR referred to the three-stage test developed in the judgment in the case of Ástráðsson v. Iceland, also applied later in the case of Xero Flor w Polsce sp. z o.o. v. Poland. There was, however, a significant difference between those cases and the case of Reczkowicz v. Poland. In Ástráðsson and Xero Flor the ECtHR could easily rely on the findings of the domestic authorities as to the fact of irregularities in the process of appointment/election of judges. In the Reczkowicz case the situation was more complicated because there was a conflict of opinions between the most important judicial authorities in the State. The Supreme Court issued an interpretative resolution in which it held that the new model of election of members of the National Council of Judiciary (NCJ) was defective and as a result adjudicating panels composed by judges appointed upon the motion of the reorganised NCJ may be irregular within the meaning of domestic procedural provisions. However, the Constitutional Tribunal ruled the reform of the NCJ was consistent with the Constitution, and it was the Supreme Court’s resolution what was unconstitutional.

The ECtHR therefore had to decide which of these views to rely on when determining whether there was a manifest breach of domestic law. For this purpose, it analysed the recent case-law of the Constitutional Tribunal. It noted that the Tribunal departed from the view expressed in its judgment issued already in 2007 that the Constitution required judges-members of the NCJ to be elected by the judges themselves. The ECtHR underlined that such a serious change of interpretation should have been properly justified but in this case no such justification was presented. In particular, the Constitutional Tribunal did not consider how a change in the rules for the election of members of the NCJ would affect the ability of the NCJ to implement its basic task, that is safeguarding the independence of courts and judges. The Constitutional Tribunal also failed to take into account the case-law of the ECtHR and the fundamental principles of the rule of law, the separation of powers and the independence of the judiciary. Moreover, the ECtHR noted that the Constitutional Tribunal’s view on the admissibility of electing judges-members of the NCJ by the Sejm was not shared by a number of international bodies and EU bodies.

Therefore, the ECtHR held that the findings of the Supreme Court regarding the defectiveness of the judicial appointments procedure with participation of the reorganised NCJ were more convincing. At the same time, the Court did not agree with the Government’s argument that the fact that the Constitutional Tribunal issued a judgment declaring the unconstitutionality of the Supreme Court’s resolution deprived the said resolution of any significance. The Tribunal’s ruling was not based on a comprehensive and balanced assessment of the case in the light of the Convention standards and could be regarded as arbitrary. Moreover, the said judgment was issued by the Constitutional Tribunal in the panel which included person whose election raised serious doubts as to its legality.

Therefore, the ECtHR, relying on the findings of the Supreme Court, held that judges of the Disciplinary Chamber had been appointed with manifest breach of domestic law. The Court also had no doubts that the violated domestic provisions were fundamental to the entire appointment procedure. As a result of the change in the rules governing the election of members of the NCJ, this body was deprived of the independence required to perform its constitutional functions. In this way, the legislative and executive authorities gained decisive influence over the NCJ, and thus also the possibility of influencing the course of the appointment procedure.

In this situation a violation of Article 6 § 1 of the Convention became clear. The third stage of the Ástráðsson test, which consists of examining whether allegations concerning violation of a right to a tribunal established by law “were effectively reviewed and remedied by the domestic courts”, was of no relevance in the present case. The applicant had no access to any procedure by which she could challenge irregularities in the appointment process.

The Court awarded the applicant EUR 15,000 for non-pecuniary damage but, similarly as in the case of Xero Flor, it did not formulate any recommendations concerning the reopening of proceedings or implementation of the judgment.

Consequences and implementation of the judgment

The violation of the Convention in the analysed case was caused by the fact that the applicant’s case was considered by the Disciplinary Chamber’s panel composed of judges appointed upon the nomination of unlawfully composed NCJ. It is therefore clear that in order to implement the ruling, it is necessary to prevent incorrectly appointed judges from adjudication and to ensure that disciplinary cases are considered by judges appointed in accordance with the law. This goal can be achieved in a short time by allocating disciplinary cases to judges of the Supreme Court appointed before the changes to the composition of the National Council of the Judiciary were implemented. It is, however, equally important to restore the independence of the NCJ by returning to the model in which the judges-members of the NCJ were elected by the judges themselves. Otherwise, it would not be possible to appoint new judges in accordance with law.

Unfortunately, it is unlikely that the Polish Government would take abovementioned actions aimed at the implementation of the judgment. In this situation, any person whose case was solved unfavourably by the Disciplinary Chamber would be able to effectively claim before the ECtHR that they have been the victim of a violation of the right to a court established by law. In this regard, one should keep in mind that in order to find a violation of this right, it is not necessary to prove that the decision in the applicant’s case was substantively incorrect.

When analysing the judgment in the Reczkowicz case and its consequences it is worth to note that the NCJ nominates candidates not only for the appointment to the Disciplinary Chamber but also to other courts in Poland. Therefore, due to irregularities of the NCJ composition, the legal status of a large group of judges in Poland is now disputed. There are also several proceedings concerning these problems pending before the ECtHR (e.g. Advance Pharma sp. z o.o. v. Poland, Ozimek v. Poland, Brodowiak and Dżus v. Poland). One may therefore wonder whether the conclusions presented in the analysed judgment are applicable also to these groups of judges. This problem was noted also in the concurring opinion of judge Krzysztof Wojtyczek.

Formally, the Reczkowicz judgment concerns only the Disciplinary Chamber, and not all judges appointed upon the nomination of the reorganised NCJ. Moreover, the situation of all these judges is not identical. The most serious controversies have always surrounded the establishment and functioning of the Disciplinary Chamber which is perceived by some as an unlawful extraordinary court. What is important, in the above-mentioned resolution the Polish Supreme Court differentiated the status of the Disciplinary Chamber, other newly appointed judges of the Supreme Court and judges of other courts. In particular, the participation of a judge appointed upon the nomination of the reorganised NCJ in the adjudicating panel of ordinary court does not always lead invalidity of proceedings. Such effect depends on whether flaws in appointment process negatively affected independence and impartiality of a judge.

It seems, however, that argumentation presented by the Court in the Reczkowicz judgment leaves little space for such differentiation. The ECtHR clearly linked the violation of the right to a tribunal established by law with the fact of appointment of judges upon the nomination of the reorganised NCJ. It even explicitly held that it was not necessary to examine other alleged irregularity invoked by the applicant. Therefore, if the mere fact that the judge was appointed upon the motion of the reorganised NCJ is sufficient to establish a violation of Article 6 of the Convention, it may be argued that the same violation occurs in the case of all other judges appointed in this way. It would be difficult to hold that the same breach of domestic law may be “manifest” in the case of the Disciplinary Chamber and “not manifest” in the case of other judges. In this situation violation of Article 6 could be avoided only on the basis of the third stage of the Ástráðsson test, that is if domestic courts effectively reviewed and remedied flaws resulted from participation of irregularly appointed judge in consideration of a case.

If the Court confirms the interpretation presented above in its future rulings, the Polish authorities will face a serious challenge as to how to restore compliance with the ECHR. The mere reform of the NCJ would certainly be insufficient – after all, the problem of incorrectly appointed judges should also be addressed in some way. The analysis of implementation of Ástráðsson judgment may be of some assistance here. The Icelandic Government informed that all irregularly appointed judges had been prevented from adjudication. Subsequently, three of them entered the new competition and were legally appointed. The fourth, however, still does not adjudicate, but formally enjoys the status of a judge. In Iceland, however, the problem of incorrect appointments concerned only four judges, while in Poland there are hundreds of judges appointed upon the nomination of the reorganised NCJ. Immediate removal or suspension of these entire group may lead to the paralysis of the Polish judiciary. Undoubtedly, the question of the status of improperly appointed judges will arise – can they be completely excluded from the judiciary or should it be considered that they are protected by the principle of irremovability?

Some of the above questions may be answered by future ECtHR judgments. One thing is certain, however: the process of rebuilding the rule of law in Poland will not be easy, and the longer the government delays in taking the necessary measures, the more difficult it may be to reverse the effects of reforms inconsistent with the European standards.