The ECHR Ruling of 07/22/2021 in the case of Rezkovits v. Poland (complaint No. 43447/19)
In 2019, the applicant was assisted in preparing complaints. Subsequently, the complaint was communicated to Poland.
Violations committed during the appointment of judges to the newly created Disciplinary Chamber of the Supreme Court of Poland after the legislative reform are being appealed in the case. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
In July 2017, the applicant, who was a lawyer, was suspended from performing her professional duties for three years following disciplinary proceedings in connection with numerous violations of the Code of Ethics of Lawyers. As a court of last resort, the applicant's case was considered by the newly established Disciplinary Chamber of the Supreme Court of Poland after the reorganization of this court, carried out on the basis of the Law on Amendments to the Law on the National Council of Justice of 2017 and the Law on Amendments to the Law on the Supreme Court of 2017 as part of a large-scale reform of the Polish judicial system initiated by the Polish Government in 2017 year. The Disciplinary Chamber consisted of judges appointed during the procedure with the participation of the new National Council of Justice of Poland (hereinafter - the Council). The applicant claimed that the judges of the Disciplinary Chamber were appointed by the President of Poland on the recommendation of the Council in direct violation of the provisions of the legislation of that country and the principles of the rule of law, separation of powers and independence of judges.
Background of the issue. The Council is a constitutional body whose main task, according to the Constitution of Poland, is to protect the independence of courts and judges. Prior to the amendments to Polish legislation, the "judicial" members of the Council were elected by judges, and this rule was clearly enshrined in the legal order of Poland and unconditionally confirmed by the Constitutional Court (Tribunal) of Poland in its decision of July 18, 2007, which was then canceled by the Constitutional Court of Poland on June 20, 2017. After the legislative reform of 2017, the "judicial" members of the Council began to be elected by the Polish Sejm. According to the relevant provisions of Polish legislation, considered as a whole, judges of courts of all levels and types, including the Supreme Court of Poland, are appointed by the President of Poland on the proposal of the Council, which he forms based on the results of an adversarial procedure during which candidates for the Council are nominated and evaluated.
Based on a request from the Supreme Court of Poland for a preliminary ruling in three cases on November 19, 2019. The Court of Justice of the European Union concluded that the Disciplinary Chamber of the Supreme Court of Poland did not meet the requirements of independence.
On December 5, 2019, the Supreme Court of Poland ruled in these cases, finding that the Council did not provide sufficient guarantees of independence from the legislative and executive authorities in the process of appointing judges. As for the Disciplinary Chamber, on the basis of the arguments set out by the Court of Justice of the European Union in its ruling, the Supreme Court of Poland concluded that the Disciplinary Chamber could not be considered a court within the meaning of Polish law and article 6 of the Convention. These conclusions were confirmed on January 23, 2020 by a joint resolution of the Chambers of the Supreme Court of Poland. According to this resolution, judicial structures, including judges of the Supreme Court of Poland, appointed during the procedure in which the Council participated, are considered to be improperly created.
On January 28, 2020, the Constitutional Court of Poland issued an interim ruling suspending the execution of the aforementioned resolution, as well as on the jurisdiction of the Supreme Court of Poland on the issue of adopting resolutions on compliance with Polish legislation or international law, or the case law of international courts of the composition of the Council, the procedure for the appointment of judges by the Council and the prerogative of the President of Poland to appoint judges. On April 20, 2020, the Constitutional Court of Poland issued a ruling recognizing the resolution of January 23, 2020. inconsistent with the Constitution of Poland, the Treaty on the European Union and paragraph 1 of article 6 of the Convention, noting, in particular, that the decisions of the President of Poland on the appointment of judges may not be subject to any review, including by the Supreme Court of Poland. The Constitutional Court of Poland confirmed this principle in a ruling dated April 21, 2021, concerning the "conflict of competence between the Sejm of Poland and the Supreme Court of Poland and between the President of Poland and the Supreme Court of Poland."
LEGAL ISSUES
Regarding compliance with article 6, paragraph 1, of the Convention. The task of the European Court in the present case was to assess the circumstances related to the procedure for appointing judges of the Disciplinary Chamber of the Supreme Court of Poland after the entry into force in 2017 of the Law on the Supreme Court of Poland, which established this Chamber, and not to assess the legality of the reorganization of the Polish judicial system as a whole.
(a) Applicability. There were no grounds to depart from the established principle that the disciplinary proceedings, which deal with the right to continue to exercise professional duties, testified to the existence of "appeals" (disputes) over civil rights. This principle has also been applied to proceedings conducted by numerous professional disciplinary bodies, including judicial ones. Consequently, paragraph 1 of article 6 of the Convention in its civil law aspect was applicable to the present case. However, the disciplinary proceedings were not related to the filing of criminal charges.
(b) The substance of the complaint. The European Court examined whether the examination of the applicant's case by the Disciplinary Chamber indicated a violation of the applicant's right to a "court established by law" in the light of the three-step test formulated in the Ruling of the Grand Chamber of the European Court of Justice in the case "Gu mundur Andri Austradsson v. Iceland" (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Gu mundur Andri Austraudsson v. Iceland" (Gu mundur Andri str sson v. Iceland) dated December 1, 2020, complaint No. 26374/18 // Precedents of the European Court of Human Rights. Special issue. 2021. N 3.), as well as the principles set out in the case.
(i) Whether there has been a clear violation of Polish law. The European Court is faced with two completely opposite positions of the highest courts of Poland on this issue. The task of the European Court was to determine whether these courts in their decisions established the necessary balance between the various interests involved, whether they paid due attention in carrying out these activities and in formulating their conclusions to the conventional standards required of a "court established on the basis of law". In addition, the Law on Amendments to Certain Legal Acts of Poland in 2017, which was part of the regulatory package on the reorganization of the country's judicial system, should be considered in the context of coordinated amendments to domestic legislation introduced for this purpose, as well as taking into account the fact that the aforementioned amendments and their impact on the Polish judicial system attracted attention They have caused concern among a number of international organizations and bodies and have been the subject of several proceedings in the Court of Justice of the European Union.
In its decision of December 5, 2019 and resolution of January 23, 2020 The Supreme Court of Poland has found several clear violations of Polish law. The Supreme Court of Poland explained in detail its conclusions, which it reached after a detailed analysis and careful assessment of the relevant legislation from the point of view of the fundamental standards of the Convention and the law of the European Union, as well as when applying the guidelines and case law of the Court of Justice of the European Union. The Supreme Court of Poland conducted a thorough assessment of all elements related to the "independent and impartial court established by law" in the light of the constitutional principles governing the functions of the Council, including the principle of separation and mutual restraint of legislative, executive and judicial authorities and the principle of judicial independence.
However, with regard to the rulings of the Polish Constitutional Court of June 20, 2017 and April 20, 2020, the situation was different. Taking into account the apparent lack of a comprehensive, balanced and objective analysis of the circumstances of the case in terms of the Convention, the assessment of the Constitutional Court of Poland should be considered arbitrary and as such cannot give any weight to the conclusion of the said court as to whether there has been a clear, objectively and truly identifiable violation of Polish legislation on the procedure for appointing judges to the Disciplinary Chamber of the Supreme Court Polish courts. In addition, these rulings should be considered within the general context of the functioning of the Constitutional Court of Poland since the end of 2015, and its actions aimed at discrediting the conclusion of the resolution of the Supreme Court of Poland regarding a clear violation of the legislation of this country, as well as international law due to an improper procedure for appointing judges with the participation of the Council. These actions began with the issuance of an unprecedented interim ruling on January 28, 2020. Such interference in the work of a judicial authority aimed at depriving it of the opportunity to exercise its judicial function in interpreting and applying the Convention and other international treaties should be characterized as a violation of the rule of law and the principle of judicial independence. The final ruling of the Polish Constitutional Court on this issue dated April 21, 2020 confirmed this argument.
In view of the above, as well as taking into account the convincing and weighty arguments given by the Supreme Court in its decision of December 5, 2019 and resolution of January 23, 2020, its conclusion that the procedure for appointing judges to the Disciplinary Chamber of the Supreme Court of Poland was contrary to the law, the European Court considers it established that there was a clear violation of the law Poland.
(ii) Whether violations of Polish law concerning the basic rule of procedure for the appointment of judges undermined the very essence of the right to a "court established by law". With regard to the degree of independence of the Council and whether there was improper interference of representatives of the legislative and executive authorities in the appointment process, the European Court first considered the numerous and essentially unanimous opinions of international organizations and bodies, according to which changes in the procedure for selecting "judicial" members of the Council, introduced according to the Law of 2017, led to that the Council was no longer an independent body and could not fulfill its constitutional duty to guarantee the independence of courts and judges. In this context, the European Court also took into account the following circumstances of the creation of the new Council, in particular: the apparent boycott of the elections by the legal community after the nomination of a small number of candidates; six of the 15 appointed judges in the last six months were appointed by the Polish Minister of Justice as chairmen or deputy chairmen of courts; most of the members of the formed Council had links with the ruling party or were recommended by her; most of the candidates for election were represented by the executive authorities; There was no way to verify whether the candidates had collected the required number of signatures, since the executive authorities initially did not disclose the lists. With regard to the latter aspect, the European Court considered that a situation where the public was not officially explained whether the formal requirements for candidates to receive sufficient support for the Council had been met could raise doubts about the legality of the election process of its members. Moreover, the lack of thorough verification of who supported the candidates could raise doubts about the qualifications of the Council members, as well as their direct or indirect connection with the executive branch. According to information currently in the public domain, the Council was elected with the support of a small group of judges with close ties to the executive branch, and, as indicated by the Supreme Court of Poland, there were also doubts as to whether all elected members of the Council fulfilled the legal requirement to receive the support of 25 active judges.
In view of the above, the European Court ruled that by virtue of the Law of 2017 on Amendments to Polish Legislation, which deprived the judicial community of the right to nominate and elect "judicial" members of the Council - a right they possessed under previously existing legislation and which was recognized by international standards - the legislative and executive authorities of Poland acquired decisive influence to form the composition of the Council. The law practically eliminated not only the previously existing representative system, but also guarantees of judicial independence in this regard, giving legislative and executive authorities the opportunity to interfere, directly or indirectly, in the procedure for appointing judges - an opportunity that these authorities took advantage of - as evidenced, for example, by the circumstances of confirming candidates for judicial positions in the Council. At the same time, the 2017 Law on the Supreme Court of Poland, which deprived the first Deputy Chairman of the said court of his authority to nominate candidates for vacant positions in this court, transferring this right to the President of Poland, further reduced the degree of participation of the judicial community in the procedure for appointing judges, in particular appointments to positions in the Supreme Court of Poland.
Assessing all these circumstances as a whole, the European Court found that violations of Polish law inevitably affected the contested appointment procedure, since, as a result of these violations, the right to nominate candidates for the positions of judges of the Disciplinary Chamber - a sine qua non condition for appointment by the President of Poland - was granted to the Council, a body that did not have sufficient guarantees of independence from the legislative and executive the authorities. The procedure for the appointment of judges, which, as in the present case, indicates the undue influence of the legislative and executive authorities on the appointment of judges, is in itself incompatible with article 6, paragraph 1, of the Convention and as such is a fundamental violation that negatively affects the entire process and compromises the legality of the court created from judges appointed in the manner in question.
Thus, the violations identified in the procedure for appointing judges to the Disciplinary Chamber of the Supreme Court of Poland were so serious that they affected the very essence of the right to a "court established on the basis of law."
(iii) Whether complaints regarding the right to a "court established by law" have been effectively considered by the Polish courts and whether effective remedies have been available. Polish legislation did not provide for a procedure by which the applicant could appeal against alleged violations committed in the procedure for appointing judges of the Disciplinary Chamber of the Supreme Court of Poland. Consequently, there were no effective remedies.
RESOLUTION
There was a violation of article 6, paragraph 1, of the Convention in the case (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 15,000 euros in non-pecuniary damage, the claim for compensation for material damage was rejected.