The past year was full of events related to the ongoing crisis of the rule of law in Poland. The last few months have been dominated mainly with the issue of the “milestones” attached to the National Reconstruction Plan and the disagreement within the ruling coalition as to how to achieve them.
Among other things, for this purpose the infamous Disciplinary Chamber was abolished and replaced with, also legally dubious, Chamber of Professional Responsibility. At the European level, both the EU Court of Justice and the European Court of Human Rights have been exceptionally active in rule of law cases – although some of their decisions have been criticized by rule of law defenders. Let’s take a look at their jurisprudence in 2022.
The first rulings of both European courts, which concerned cases related to the crisis of the rule of law in Poland, were issued in February this year.
The ECHR was first, giving its verdict in the case of Advance Pharma v. Poland on February 3, 2022 (claim no. 1469/20), in which it upheld its previous assessment of appointments to the Supreme Court at the request of the current, politicized National Council of the Judiciary.
Having previously evaluated the nominations to the Disciplinary Chamber and the Extraordinary Control Chamber of the Supreme Court, also this time the Strasbourg Tribunal confirmed that the participation of the new National Council of the Judiciary in the process of appointing members to the Civil Chamber violated the right to a “court established by law”, which is an element of the right to a fair trial. As in 2021, the ECHR found that the politicization of the National Council of the Judiciary constitutes a gross violation of the basic rules for appointing judges in Poland.
Importantly, the Court of Justice added that to ensure the rule of law, independence of the courts and the separation of powers, Poland should immediately cure the situation in the NCJ in order to prevent systemic violations of the right to a fair trial not only with regard to the Supreme Court, but also other Polish courts.
A few days later, on February 9, 2022, the first ruling related to the crisis of the rule of law in Poland was given by the EU Court (one of the bodies of the CJEU, formerly known as the Court of First Instance).
In the Sped-Pro v. Commission judgment (T-791/19), Court addressed the impact of the rule of law violations in Poland on competition protection.
In this case, the Polish company appealed against the Commission’s decision to reject the complaint against PKP Cargo’s anti-competitive practices. The main argument of the Commission was that it was not competent to deal with the case, as it should be filled to the Polish Office of Competition and Consumer Protection.
However, the company decided that the state control over PKP Cargo, the dependence of the President of OCCP (UOKiK) on the government, the current practice of state authorities’ special treatment of the carrier and, finally, doubts about the independence of Polish courts give ground for considering that it is the Commission, and not the national regulator, that should investigate Sped-Pro complaint.
Accepting the company’s arguments, the EU Court decided that the Commission rejected its complaint too hastily and should take up the case. In its view, the Commission should ensure that national authorities are able to effectively prevent anti-competitive practices and that the courts warrant independent review of their decisions. The ruling of the EU Court therefore confirms that the crisis of the rule of law has its clear consequences not only in criminal cases (European Arrest Warrant) but can also negatively affect the economy and competition.
However, the most important judgments given at the beginning of the year were the judgments of the CJEU in the cases of Hungary v. the Parliament and the Council (C-156/21) and Poland v. the Parliament and the Council (C-157/21), in which both countries challenged the “money for rule of law” mechanism adopted in 2020. In both judgments, which were made on February 16, 2022, the Tribunal in Luxembourg found the EU regulation to be in compliance with the Treaties and dismissed the complaints of Hungary and Poland.
As the CJEU highlighted in the reasoning of the judgments, the rule of law, as one of the values on which the Union is based, is an element of its identity – as a legal order common to all Member States. It was these countries that defined the Union’s values and committed themselves to them. The rule of law is a precondition for mutual trust between Member States as well as between them and the EU institutions. Hence, respecting the value of the rule of law cannot be reduced only to the obligation of states applying for EU membership – Member States should also be required to share these values, and the Union itself should be able, within its competences, to defend the rule of law.
Recognizing that problems with the rule of law in one Member State may affect the financial interests of the Union and the proper implementation of the EU budget, CJEU decided that the “money for rule of law” mechanism is adequate and does not go beyond the competences granted to the Union by its members.
The judgment of the CJEU, given in full bench, clearly shows at what stage of integration the EU is currently. Originally an economic organization, it has now become a political alliance where respect for human rights and the common values is absolutely required.
Also in February, the EU Court of Justice clarified the criteria for European Arrest Warrants issued by Polish authorities and executed by other Member States. In the judgment of 22 February 2022 in the cases of Openbaar Ministerie (Court established by law in the issuing Member State) (C-562/21 PPU and C-563/21 PPU), the CJEU stated that the mere fact that the politicized NCJ takes part in the process of appointing Polish judges does not mean that a person transferred to the country under the EAW will be at risk of violation of their right to a fair trial. Such person should provide the authorities of the Member State with additional information indicating the impact of the flawed appointment of judges on his situation.
However, this judgment may be subject to criticism, as the CJEU – unlike the Strasbourg Court – did not recognize that the appointment of judges at the application of the current NCJ constitutes, in itself, a violation of the right to a “court established by law”. Interestingly, in the opinion of the CJEU, a much more serious risk to the right to a court of persons covered by an EAW may result from the Polish model of delegating judges by the minister of justice, as there are no criteria that the minister should follow when making a decision on delegation, and at the same time he may recall a judge from a delegation at any time and without justification – also in reaction to his judicial activity.
February also turned out to be a breakthrough when it comes to the protection of judges by the ECHR. In the ongoing proceedings in the case of Wróbel v. Poland (complaint no. 6904/22), concerning a judge of the Criminal Chamber of the Supreme Court, the Strasbourg Court initiated a series of several temporary measures, imposing on the Polish authorities inter alia: the obligation to ensure that disciplinary cases of judges are heard by a court that meets the criteria of the European Convention on Human Rights.
The Tribunal also required the suspension of decisions made against judges, such as their “punitive” transfer to other departments. So far, the ECHR has issued temporary measures extremely rarely and in particularly urgent cases, where it was primarily to protect the life or health of the applicants. By extending their application to the cases of Polish judges, the ECHR made it clear how important protection of the rule of law and separation of powers in Europe is.
In March, the main focus was on the first judgment of the ECHR concerning the crisis of the rule of law in Poland, which was issued by the Grand Chamber of the Tribunal. In the judgment of March 15, 2022, in the case of Grzęda v. Poland (claim no. 43572/18), by 16 to 1 votes, the ECHR found a violation of the right to access to the court of Judge Jan Grzęda, who was a member of the legal National Council of the Judiciary and whose 4-year term of office was shortened by law.
Most importantly, the Strasbourg Tribunal found that the successive “reforms” of the Polish judiciary, initiated at the end of 2015, including the politicization of the National Council of the Judiciary, were undertaken with the clear aim of weakening the independence of judges and increasing the political control of the legislative and executive authorities over the courts. ECHR extended the protection of judges against the influence of other authorities, stating that it applies to situations in which the judge does not only exercise judicial functions or resides as the president of the court, but – as in this case – exercises the mandate of a member of the National Council of the Judiciary.
Also in March, the CJEU found the questions for preliminary ruling of the Supreme Court regarding the possibility of undermining the status of a person appointed to the Disciplinary Chamber inadmissible. In its judgment in Prosecutor General (Disciplinary Chamber of the Supreme Court – Appointment) (C-508/19) case, the Luxembourg Tribunal dealt with the issue of a claim brought before the Supreme Court by a judge against a member of the Disciplinary Chamber who had previously decided to appoint a disciplinary court in her case.
The Court of Justice decided that there was no need to answer the questions of the Supreme Court, because the asking court noted itself that in Polish law there is no possibility to challenge the appointment of a judge in civil proceedings, and the claim itself really concerns another matter – compliance with the law of the appointment by the member of the Disciplinary Chamber of a disciplinary court to deal with the case of the judge as a result of the claim brought by her.
At the same time, the CJEU noted that the judge could raise a claim of unlawful designation of a court before the disciplinary court itself, especially since a year earlier the same court found that the laws granting the president of the Disciplinary Chamber such competence are contrary to EU law.
In the ruling of March 29, 2022, in the Getin Noble Bank case (C-132/20), CJEU heard the questions for a preliminary ruling submitted by a person appointed to the Supreme Court at the request of the politicized NCJ. The questions concerned the compliance with EU law of the appointment of judges by the Council of State of the People’s Republic of Poland, as well as with the participation of the legal National Council of the Judiciary, the method of selection of which was declared unconstitutional by the current Constitutional Tribunal.
The Court in Luxembourg found that the questions submitted by a member of the Supreme Court were acceptable. It found that there is a presumption that the reference for a preliminary ruling comes from a legal court, and it can only be overturned by a judgment of a national or international court showing violations of the procedure for appointing that person to a judicial post.
With regard to the very question about the method of appointing judges, the CJEU clarified that the mere fact of appointment by the Council of State of the People’s Republic of Poland (taking into account the subsequent promotions of a given judge at the request of the legal National Council of the Judiciary) does not in itself raise doubts from the point of view of their independence – especially since in the meantime Poland joined the European Union and committed to share its values, including the rule of law. Also, regarding the alleged defectiveness of the appointing members of the previous, legal NCJ, it is not enough, in the opinion of the CJEU, to undermine the independence of judges appointed in such a procedure.
In the ruling of June 16, 2022, in the case of Żurek v. Poland (claim no. 39650/18), the ECHR found that the authorities violated the rights of Judge Waldemar Żurek, a former member of the National Council of the Judiciary, regarding access to court and freedom of expression.
As in the case of Judge Grzęda, the Strasbourg Tribunal found that the shortening of the term of National Council of the Judiciary member – without the possibility of appeal to the court – violated Art. 6 sec. 1 of European Convention of Human Rights. At the same time, the accumulation of measures against Judge Żurek, including dismissing him from the function of the court’s spokesman, attention of security services or checking his jurisprudence in terms of possible disciplinary charges, took place primarily in response to his statements in defense of the rule of law and independence of the courts. As in previous cases, the ECHR emphasized the need to remedy the situation in the NCJ as soon as possible.
The second half of the year had significantly fewer rulings by both European tribunals in cases related to the crisis of the rule of law in Poland. However, the Strasbourg Tribunal granted further temporary measures to protect Polish judges against interference of politicians in their independence, hearings were held and opinions of CJEU Advocates General in pending cases were published.
In the ruling of October 6, 2022, in the case of Juszczyszyn v. Poland (claim no. 35599/20), the ECHR dealt with the complaint of Judge Paweł Juszczyszyn, who was the first to attempt verification of the composition of the current NCJ and demanded candidate support lists from the Chancellery of the Sejm. As a result, he was suspended from his duties by the Disciplinary Chamber for over 2 years.
The Strasbourg Tribunal found that the Polish authorities had violated Judge Juszczyszyn’s rights three times. Firstly, due to the way in which the Disciplinary Chamber was established – this body does not have the characteristics of a “court” referred in the European Convention of Human Rights. For this reason, secondly, there was a violation of Judge Juszczyszyn’s right for private and family life. Thirdly, the restriction of the latter right was made for purposes contrary to the European Convention of Human Rights since his suspension was in breach of the requirements of judicial independence and the rule of law.
At the end of this year, on December 15, the Advocate General of the CJEU issued three opinions on cases related to the crisis of the rule of law in Poland, which are being examined by the Court in Luxembourg and which should be concluded in 2023.
In the joined cases YP and Others (Waiver of the immunity and suspension of a judge in official duties) (C-615/20 and C-671/20), in which questions for a preliminary ruling were submitted by two compositions of the District Court in Warsaw, the Advocate dealt with the legality of the decision of the Disciplinary Chamber to suspend Judge Igor Tuleya and its consequences for the cases heard by that judge.
In the Advocate General’s opinion, the Disciplinary Chamber, due to the manner in which it was established, should not hear disciplinary cases of judges, and also should not judge motions to waive their immunity. Since the decision in the case of Judge Tuleya was made contrary to EU law, all state authorities should disregard it and, as a result, allow the judge to continue hearing the cases assigned to him.
In turn, in the case Commission v. Poland (Independence and private life of judges) (C-204/21), the Advocate General considered the Commission’s complaint regarding the so-called “muzzle act”, which, among other things, prohibited judges, under the threat of disciplinary sanctions, to question the status of persons appointed at the motion of the politicized National Council of the Judiciary. Agreeing with most of the Commission’s arguments, the Advocate ruled that these provisions infringe EU law, including the requirements of effective judicial protection, and that requiring judges to declare their membership in political parties or associations contradicts their right to private life and GDPR regulations.
The Advocate General also dealt with preliminary ruling questions from the district courts in Kraków and Katowice regarding the appointment of judges at the request of the politicized National Council of the Judiciary to lower courts. In the joined cases G. and Others (Appointment of judges of common courts in Poland) (C-181/21 and C-269/21), he considered that factors such as taking away the role of judicial self-governments in evaluating candidates for judicial positions and establishing a NCJ dependent on politicians, in themselves are not sufficient to conclude that the appointments of judges are flawed.
In 2022, we were dealing with a continuation of the rule of law crisis in Poland. At the European level, the decisions issued by the ECHR and the CJEU can be assessed in two ways.
First of all, the Court in Strasbourg played a fundamental role in preventing the crisis by providing temporary protection to fifteen judges affected by repressions of the government. It also extended the protection of judges to instances where they perform functions other than judicial, and began to investigate the real purpose of the violation of their rights by the Polish authorities.
In the last year, the ECHR received almost 80 cases directly related to the crisis of the rule of law, and a significant part of them are complaints from the judges themselves. In total, this gives about 100 pending cases.
At the same time, the assessment of the CJEU’s activities is a little less optimistic. It is a result of the acceptance of preliminary ruling questions submitted by a Supreme Court judge appointed at the request of the current National Council of the Judiciary – in a situation where the ECHR found that this person did not ensure the right to a fair trial.
At the same time, in its judgments, the CJEU invariably emphasizes that the mere fact of obtaining a nomination from the politicized National Council of the Judiciary does not mean a violation of the right to a fair trial, which is also inconsistent with the approach of the ECHR. It cannot be ruled out that the main reason for this discrepancy is time – the CJEU is currently hearing cases that until recently were not heard by the ECHR, while taking into account their status at the time of filling them to the Court in Luxembourg. In any case, due to the EU law’s requirement to respect the European Convention of Human Rights, in the coming months it can be expected that the standards of judging Polish cases will be equal again in both tribunals.
Also, the coming year should be full of other important cases before the CJEU and the ECHR. Among others, issues such as the legality of the composition of the Constitutional Tribunal, the politicization of the NCJ or the competence of Polish courts to investigate flawed appointments of judges are waiting in the queue for ruling or to fill the complaint.
Translated by Bartłomiej Jabrzyk