The lack of independence of the Supreme Court in the decision to appoint judges violated the right to be heard. Poland must take measures to comply with the decision of the ECtHR
JUDGMENT
Dolińska-Ficek and Ozimek v. Poland 8.11.2021 (app. no. 49868/19 and 57511/19)
SUMMARY
The case concerned complaints brought by two judges that the Chamber of Extraordinary Review
and Public Affairs of the Supreme Court, which had decided on cases concerning them, had not been
a “tribunal established by law” and had lacked impartiality and independence.
They complained in particular that the Chamber of Extraordinary Review and Public Affairs, one of
two newly created chambers of the Supreme Court, had been composed of judges appointed by the
President of Poland on the recommendation of the National Council of the Judiciary (“the NCJ”), the
constitutional organ in Poland which safeguards the independence of courts and judges and which
has been the subject of controversy since the entry into force of new legislation providing, among
other things, that its judicial members are no longer elected by judges but by the Sejm (the lower
house of Parliament).
The case is one of 57 applications against Poland, lodged in 2018-2021, concerning various aspects
of the reorganisation of the Polish judicial system initiated in 2017*. The Court emphasised that its
task was not to assess the legitimacy of the reorganisation of the Polish judiciary as a whole, but to
determine whether, and if so how, the changes had affected Ms Dolińska-Ficek’s and Mr Ozimek’s
rights under Article 6 § 1 of the Convention.
The Court found that the procedure for appointing judges had been unduly influenced by the
legislative and executive powers. That 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 was not therefore an “independent and
impartial tribunal established by law” within the meaning of the European Convention.
As the violation of the applicants’ rights originated in the amendments to Polish legislation which
deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the
executive and the legislature to interfere directly or indirectly in the judicial appointment procedure,
thus systematically compromising the legitimacy of a court composed of the judges appointed in
that way, a rapid remedial action on the part of the Polish State is required.
When the Court finds a breach of the Convention, the State has a legal obligation under Article 46 of
the Convention to select, subject to supervision by the Committee of Ministers, the general and/or
individual measures to be adopted in its domestic legal order to put an end to the violation found by
the Court and to redress the situation. It therefore falls upon the State of Poland to draw the
necessary conclusions from this judgment and to take appropriate measures in order to resolve the
problems at the root of the violations found by the Court and to prevent similar violations from
taking place in the future.
PRINCIPAL FACTS
The applicants, Monika Dolińska-Ficek and Artur Ozimek are Polish nationals who were born in 1979
and 1966 and live in Siemianowice Śląskie and Lublin (Poland) respectively.
Ms Dolińska-Ficek is a district-court judge in Mysłowice; Mr Ozimek is a regional-court judge in
Lublin. Both of them applied for judicial posts elsewhere in late 2017 and early 2018 respectively but
were not recommended for those posts by the National Council of the Judiciary (the “NCJ”). They
lodged appeals with the Supreme Court in 2018. Their appeals were examined by the newly
established Chamber of Extraordinary Review and Public Affairs of the Supreme Court, one of the
two new chambers created following the changes to the judiciary and composed solely of judges
appointed through the procedure involving the new NCJ. Their cases were dismissed in 2019.
Relying on Article 6 § 1 (right to a fair hearing), the applicants complained that the Chamber of
Extraordinary Review and Public Affairs of the Supreme Court, which had examined their appeals
against the resolutions of the NCJ, had not been an independent and impartial “tribunal established
by law” because it was composed of judges recommended by the NCJ. They referred in particular to
proceedings before the Court of Justice of the European Union which ended in a ruling of
19 November 2019 and subsequent rulings by the Polish Supreme Court finding that the judges of
the Supreme Court appointed in the procedure involving the NCJ were not a court constituted in
accordance with domestic law.
They also complained that the President of Poland had appointed the judges recommended by the
NCJ in spite of pending appeals contesting the legality of the NCJ resolution and the stay of its
implementation while undergoing judicial review.
THE DECISION OF THE COURT…
Article 6 § 1
The Court examined the case in the light of the criteria laid down by the Grand Chamber of the Court
in the case of Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18) of December 2020 and also
applied in Reczkowicz v. Poland (no. 43447/19) of July 2021.
First, the Court established that there had been a manifest breach of domestic law which adversely
affected the fundamental rules of procedure for the appointment of judges to the Chamber of
Extraordinary Review and Public Affairs of the Supreme Court. That was because the NCJ, as
established under the Amending Act on the NCJ of 8 December 2017, did not provide sufficient
guarantees of independence from the legislative or executive powers.
The Court then went on to find that the President of Poland’s appointment of all the judges to the
Chamber of Extraordinary Review and Public Affairs upon NCJ resolution no. 331/2018,
notwithstanding the ruling of the Supreme Administrative Court of 27 September 2018 suspending
the NCJ’s resolution, amounted to a manifest breach of the domestic law. Deliberate disregard of a
binding judicial decision and interference with the course of justice in order to minimise the validity
of a pending judicial review of the appointment of judges could only be characterised as blatant
defiance of the rule of law. In light of the above, the Court did not find it necessary to determine
whether there was also a separate breach of the domestic law resulting from the fact that the
President’s announcement of vacant positions in the Supreme Court had been made without the
Prime Minister’s countersignature.
The Court found that a procedure for appointing judges which was unduly influenced by the
legislative and executive powers was in itself incompatible with Article 6 § 1 of the Convention and,
as such, compromised the legitimacy of the Chamber of Extraordinary Review and Public Affairs of
the Supreme Court. The applicants’ right to a “tribunal established by law” had been impaired.
In coming to this conclusion, the Court referred in particular to rulings by the Polish Supreme Court
finding that the judges of the Supreme Court appointed in the procedure involving the NCJ were not
a court constituted in accordance with domestic law. The Court considered that those rulings were
based on convincing arguments, including a thorough and careful evaluation of the relevant Polish
law from the perspective of the Convention’s fundamental standards and of EU law. It also took into
account rulings of the Court of Justice of the European Union, as well as multiple reports and
assessments by European and international institutions.
The Court concluded that the Chamber of Extraordinary Review and Public Affairs of the Supreme
Court, which examined the applicants’ cases, was not a “tribunal established by law”. There had
therefore been a violation of Article 6 § 1 of the Convention.
As regards the question whether the same irregularities also compromised the independence and
impartiality of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, the
Court held that it was linked with the same underlying problem of inherently deficient procedure for
judicial appointments and that it had already been answered in its examination of the complaint
alleging that that chamber lacked attributes of a “tribunal established by law”. It did not therefore
require further examination.
Lastly, the Court considered that there was no need to give a separate ruling on the applicants’
additional complaints of a breach of the right to a fair hearing in the proceedings before the NCJ.
Article 46 (binding force and execution of judgments)
When the Court finds a breach of the Convention, the State has a legal obligation to select, subject
to supervision by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the violation found by the Court
and to redress the situation.
The violation of the applicants’ rights originated in the amendments to Polish legislation which
deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the
executive and the legislature to interfere directly or indirectly in the judicial appointment procedure,
thus systematically compromising the legitimacy of a court composed of the judges appointed in
that way. In this situation and in the interests of the rule of law and the principles of the separation
of powers and the independence of the judiciary, a rapid remedial action on the part of the Polish
State is required.
The Court refrained from giving any specific indications as to the type of individual and/or general
measures that might be taken in order to remedy the situation and limited its considerations to
general guidance. It therefore falls upon the State of Poland to draw the necessary conclusions from
this judgment and to take any individual or general measures as appropriate in order to resolve the
problems at the root of the violations found by the Court and to prevent similar violations from
taking place in the future.
Just satisfaction (Article 41)
The Court held that Poland was to pay the each of the applicants 15,000 euros (EUR) in respect of
non-pecuniary damage
