Poland

The High Court of Ireland, facing the question of whether a European Arrest Warrant may be executed on a request from Poland, referred the question to the CJEU of whether it must establish whether the person in question is at real risk of their right to a fair trial to being imperiled in Poland, or whether general deficiencies of the Polish judiciary are sufficient to refuse to execute such a warrant. The CJEU stated that the personalised test it developed in its earlier judgments on European Arrest Warrants must be applied to individual cases, and that a blanket finding of deficiencies in the rule of law in a country is insufficient to refuse to execute a warrant issued that a country.

In another infringement case brought by the European Commission against Poland, the CJEU found that the Polish legislation lowering the mandatory retirement age for judges of the Supreme Court, which, in practice, would lead to the forced retirement of a significant number of judges sitting at the Court at the time, including its senior leadership, was contrary to EU law. The CJEU stated that such a measure was not justified by a legitimate objective and undermined the principle of the irremovability of judges, thus undermining their independence.

These cases all concerned the newly established Disciplinary Chamber of the Polish Supreme Court, which was created to handle disciplinary proceedings against judges and lawyers, and quickly became a flashpoint in Poland’s rule-of-law crisis. Answering the referrals from Polish courts, the CJEU found that the referring court must ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent, in order to determine whether that chamber has jurisdiction to rule on cases where judges of the Supreme Court have been forced to retire,d, or in order to determine whether such cases must be examined by another court which meets the requirement that courts must be independent.

Judging on a referral from the Polish Supreme Administrative Court, the CJEU examined the National Council of the Judiciary and its role in appointing the judges of the Supreme Court of Poland, finding that the procedure and the lack of effective judicial review of it could constitute a breach of EU law, in particular in a situation where the CJEU itself would be prevented from exercising its primary ruling competence.

In an infringement case brought by the European Commission against Poland, the CJEU examined the Commission’s arguments that the Disciplinary Chamber of the Polish Supreme Court and the system of disciplinary liability of judges as formed in the recent reforms in the country are incompatible with EU law. The CJEU sided with the Commission, finding that, owing to the circumstances of its creation and the role of the National Council of the Judiciary, the Disciplinary Chamber is not independent and properly shielded from political influence. It also found that the disciplinary regime allowing judicial decisions and referrals to CJEU to be determined as disciplinary offences, as well as the lack of proper procedural safeguards in proceedings before the Disciplinary Chamber, to constitute violations of EU law. Implementation status: The Disciplinary Chamber has been disbanded and replaced with the Chamber of Professional Liability.

Ruling on a referral from a Polish judge who was transferred without his consent from one division within a Polish court to another division within the same court, the CJEU found that such transfers could amount to undermining the principle of the irremovability of a judge and their judicial independence. Furthermore, the CJEU examined the status of a judge sitting on the Extraordinary Control and Public Affairs Chamber of the Polish Supreme Court who examined the referring judge’s appeal against the decision, finding that the conditions surrounding the appointment of a judge could lead a domestic court to find that such a judge does not to constitute an independent and impartial tribunal established by law.

In this case, the Commission brought Poland before the CJEU, claiming, once again, that Disciplinary Chamber of the Supreme Court of Poland (defunct by the time of the final judgment) lacked independence and impartiality but, beyond this, also maintaining that the so-called “muzzle law”, a set of provisions severely limiting the freedom of judges to adjudicate, also constituted a breach of EU law. Over the course of the proceedings in this case, Poland was issued an interim order to suspend the activities of the Disciplinary Chamber and the “muzzle law”, which Poland refused to follow, leading to the Vice-President of the CJEU to order a daily penalty of 1 million EUR, later lowered to 500 thousand EUR. Poland refused to pay this amount, leading to the penalty ultimately being collected by the European Commission out of outstanding payments to Poland, with the figure reaching almost 556 million EUR. In its final judgment in the case, the CJEU stated that judicial independence cannot be disregarded by relaying on national law and constitutional provisions, a direct reference to earlier judgments of the Polish Constitutional Tribunal finding EU law not applicable to matters related to the Polish judiciary. The CJEU reiterated its earlier assessment of the Disciplinary Chamber, and found that the measures of the “muzzle law” that prevented a Polish judge from examining the status of other judges were incompatible with EU law, as they limited judicial independence. Implementation status: The Disciplinary Chamber has been disbanded and replaced with the Chamber of Professional Liability. Most elements of the “muzzle law” have been discarded, but some remain, including the requirement for judges to disclose their membership in associations.

The ECtHR found that one of the judges of the Polish Constitutional Tribunal had been elected in an irregular manner (by means of effectively taking up a seat that ought to be filled by a judge elected by the previous parliament), and that doing so led to a violation of the right to a fair trial of the applicant, whose case was dismissed by the Tribunal with the judge in question presiding over the decision. Implementation status: Compensation was paid to the applicant, but there was no reform of the Constitutional Tribunal.

In Broda and Bojara v. Poland the Court emphasised that almost all the powers as regards termination of mandates of court presidents and vice presidents were concentrated in the hands of the Ministry of Justice, and that the applicants had not been heard or informed of the reasons for the ministerial decisions. It also ruled that there had been no review of those removal decisions by a body that was independent of the Ministry of Justice.

The case concerned a Polish lawyer whose disciplinary case was heard in the second instance by the now-defunct Disciplinary Chamber of the Supreme Court. The ECtHR found that the procedure for appointing judges to the Disciplinary Chamber, including the fact that the judges sitting there were appointed on the recommendation of the National Council of the Judiciary, had been unduly influenced by the legislative and executive powers. This amounted to a fundamental irregularity that adversely affected the whole process and compromised the legitimacy of the Disciplinary Chamber of the Supreme Court, which had examined the applicant’s case. The Disciplinary Chamber, therefore, was not a “tribunal established by law” within the meaning of the European Convention on Human Rights. Implementation status: Compensation was paid to the applicant, and the Disciplinary Chamber has been disbanded.

In a case similar to Reczkowicz v Poland, the ECtHR examined another “new” Chamber of the Supreme Court, the Extraordinary Control and Public Affairs Chamber, which was also established ex nihilo and staffed with judges appointed on the recommendation of the National Council of the Judiciary, following its reform in 2018. The Court found that the procedure for appointing judges had been unduly influenced by the legislative and executive powers. This amounted to a fundamental irregularity that adversely affected the whole process, and compromised the legitimacy of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which had examined the applicants’ cases. The Chamber of Extraordinary Review and Public Affairs, therefore, was not an “independent and impartial tribunal established by law” within the meaning of the European Convention. An additional manifest breach of domestic law was found in this judgment because, “in blatant defiance of the rule of law”, the president of Poland carried out judicial appointments despite a final court order staying the implementation of the National Council of the Judiciary’s resolution recommending judges to the Chamber of Extraordinary Review and Public Affairs. Implementation status: Compensation was paid to the applicant, but there was no reform of the Supreme Court chamber.

Another in the series of judgments concerning judicial appointments to the Supreme Court, in this case the ECtHR examined the situation of a private company that brought a case before the Civil Chamber of the Supreme Court, an “old” Chamber, featuring both judges appointed on the recommendation of the pre-2018 National Council of the Judiciary, and “new” judges, appointed following the reform of the Council. The applicant’s case was heard by the “new” judges of the Chamber and, in accord with its earlier findings in the Reczkowicz and Dolińska-Ficek and Ozimek case, the ECtHR found that the judges had been appointed in an irregular manner, owing to the condition of the National Council of the Judiciary and that the president had appointed these judges despite an order from the Supreme Administrative Court to withhold such appointments. Implementation status: Compensation was paid to the applicant, but there was no reform of the Supreme Court chamber.

The case concerned the Disciplinary Chamber of the Supreme Court’s disciplinary measures against a judge who had issued a court order for information on appointments of judges via the controversial “new” National Council of the Judiciary. The Court found that the Disciplinary Chamber of the Supreme Court was not an “independent and impartial tribunal established by law”. Concerning Juszczyszyn’s right to respect for private and family life, given that the Disciplinary Chamber could not be considered a “court” based on how it had been set up, the decision to suspend him had been unlawful. Furthermore, it was impossible for Juszczyszyn to foresee his actions leading to his suspension under the law. Lastly, the Court held that Juszczyszyn’s suspension had been for reasons other than those set out in Article 8. Specifically, he had been discouraged from examining the appointment procedure for judges, in violation of his rights. Implementation status: Compensation was out to the applicant, the Disciplinary Chamber has been disbanded.

Grzeda was one of the 15 judge members of the National Council of the Judiciary who had their mandates prematurely terminated in 2017, with the change in the method of electing judge members of the Council. The issue at hand was whether the applicant’s rights had been violated because he had not had any opportunity to challenge the termination of his mandate as a Council member. The judgement is notable for (a) its emphasis on the independence of judicial councils; (b) the extension of a procedural safeguard of the right of access to a court from judges to judge members of judicial councils, so that judges receive similar protection for their Council membership as for their adjudicatory role – the same safeguards applying in cases of dismissals of Council members as in cases of dismissals of judges; and (c) a broader denunciation of the Polish judicial reforms, weakening judicial independence, and stressing the need for adherence to rule of law standards. Implementation status: Compensation was paid to the applicant, but there was no reform of the National Council of the Judiciary.

The case concerned the premature termination of a judge’s mandate as a member of the National Council of the Judiciary and an alleged campaign to silence him. The applicant alleged, in particular, the absence of judicial or other procedures allowing him to contest the premature termination of his mandate. The ECtHR agreed with the applicant, finding that that there had been a violation of Article 6 § 1 (right of access to court) and Article 10 (freedom of expression) of the European Convention on Human Rights. Following the same reasoning as in the recent Grand Chamber case Grzęda v. Poland (no. 43572/18), the Court found that the lack of judicial review of the decision to remove Żurek from the National Council of the Judiciary had breached his right of access to a court. The Court also found that the accumulation of measures taken against Żurek – including his dismissal as spokesperson of a regional court, the audit of his financial declarations, and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the “rule-of-law crisis” in Poland. Implementation status: Compensation was paid to the applicant, but there was no reform of the National Council of the Judiciary.

The case originated in the new disciplinary regime for judges in Poland. The applicant, Igor Tuleya, a well-known judge, complained about five sets of preliminary inquiries initiated against him in 2018 on suspicion of disciplinary misconduct. Notably, he complained that one of those inquiries, concerning his alleged disclosure of sensitive information from an investigation file, had led to the lifting of his immunity from prosecution and suspension from his official duties for over two years by the Disciplinary Chamber of the Supreme Court. The criminal proceedings against Tuleya are apparently still ongoing, while none of the preliminary inquiries have led to disciplinary proceedings being brought against him. The Court held, as in one of its previous rulings (Reczkowicz v. Poland), that the Disciplinary Chamber – which had taken the decision to lift Tuleya’s immunity – was not an “independent and impartial tribunal established by law” for the purposes of the European Convention on Human Rights. It also concluded that there had been no lawful basis for the measures against Tuleya, which had to have had a significant impact on his right to private life, and could be characterised as a strategy aimed at intimidating (or even silencing) him for the views that he had expressed. The Court emphasised that Tuleya’s case had to be seen in its context, particularly that he was one of the most outspoken critics of the judicial reforms in Poland. Implementation status: Compensation was paid to the applicant, the Disciplinary Chamber has been disbanded.

In this case, brought before ECtHR by former President of Poland and Nobel Peace Prize Winner Lech Wałęsa, whose earlier victory in a final judgment in a defamation case was overturned by the Extraordinary Control and Public Affairs Chamber of the Supreme Court, on an application by the prosecutor general under an “extraordinary review” procedure that allows the Supreme Court, through that particular chamber, to examine earlier final judgments and overturn them in cases of “gross violation of principles of justice”. The ECtHR found, once again, that the Extraordinary Control and Public Affairs Chamber had been appointed in a manner contrary to the standards of the European Convention on Human Rights. Additionally, it found that the extraordinary review procedure violated the principle of legal certainty, owing to the fact that it provides the possibility of overturning existing judgments and provides the prosecutor general with a far-ranging ability to challenge final decisions of courts, which, in this case, the ECtHR found to have been used with a political aim, as Wałęsa was an outspoken critic of the government. The reversal of the judgment was also found to infringe on the applicant’s private life. Applying the pilot-judgment procedure, the Court held that, in order to put an end to the systemic violations of the right to a fair trial identified in this and previous cases, Poland must take appropriate legislative and other measures to comply with the requirements of an “independent and impartial tribunal established by law” and with the principle of legal certainty. Implementation status: Pending.