Susana Sanz Caballero have attended the XX Congress of the Asociación de Constitucionalistas de España (ACE) organized by the University of Extremadura and held at the San Francisco Cultural Complex (Cáceres).
This publication is the last chapter of the papers presented by our colleagues attending the XX Congress of the Asociación de Constitucionalistas de España (ACE) on the Rule of Law.
In this case it is the communication made by our colleague and head researcher Susana Sanz, who has participated in Roundtable 4: Rule of Law backsliding in the European Union where she has exposed her communication “The appointment of judges in Poland revisited: The doctrine of the European Court of Human Rights.”
Her speech has focused on the appointment procedure of the National Council for the Judiciary (NJC) in Poland since 2017 in connection with the European Court of Human Rights (ECtHR) case-laws. According to this judicial body, Polish judges and courts appointed by the President of the Republic upon recommendation of this Council as tribunals are not considered established by the law anymore.
Firstly, she has explained what the NCJ in Poland consists of and what its functions are, in order to subsequently analyze its reform. This body is responsible for safeguarding judicial independence, is the governing body of the judiciary and therefore assesses and nominates candidates for their appointment as judges for each level and type of court.
I. Composition of the National Council of the Judiciary prior to 2017
- 2 members of the Senate
- The Minister of Justice
- One person chosen by the Head of State
- 17 judges: 2 of which are the President of the Supreme Court and the President of the Supreme Administrative Court
There are a total of 25 members. Prior to the 2017 Amending Act passed by the Parliament (Sejm), 15 members were elected by the judicial assemblies at different levels of the judiciary.
However, following the reform, the power to appoint these members has been transferred to Parliament, resulting in the premature termination of the terms of office of judges who had been elected by the Council under the previous legal framework.
In this regard, our colleague has pointed out that “The European Network of Councils for the Judiciary found the new composition of the NCJ to be illegitimate since it did not meet the requirements of being independent both from the executive and the legislative powers.” The same network decided in September 2018 to suspend the Polish NCJ’s membership and in October 2021 it voted to expel Poland from its EU network.
In accordance with the Council of Europe the Polish NCJ does not satisfy the principle of separation of powers nor the Rule of Law anymore. The Commission Democracy through Law (Venice Commission) issued an Opinion in 2017 recalling that the majority of the members of the councils of the judiciary should be elected by the judiciary itself.
The Parliamentary Assembly, the Council of Europe’s Commissioner for Human Rights and the Group of States against Corruption (GRECO) have also spoken along the same lines.
The ECtHR has ruled on numerous occasions on the composition of the NCJ, its impact on the independence of the judiciary, the separation of powers and how it is related to the rule of law. Dr. Sanz has mentioned some of these cases:
- Xero Flor w Polsce sp. Zo. o v. Poland no.4907/18 of 7 May 2021
- Broda and Bojara v. Poland nos. 26691/18 and 27367/18 of 29 June 2021
- Reczkowicz v. Poland no. 43447/19 of 22 July 2021
- Dolinska-Ficek and Ozimek v. Poland nos. 49868/19 and 57511/19 of 8 November of 2021.
- Advance Pharma Sp. zo. o v. Poland, no. 1469/20 of 3 February 2022
- Grzeda v. Poland, no. 43572/18 of 15 March 2022
- Zurek v. Poland, no. 39650/18 of 16 June 2022
- Juszczyszyn v. Poland, no. 35599/20 of 6 October 2022
II. Judicial independence and the Rule of Law
As the speaker has explained, “judicial independence is a condition sine qua non of the rule of law“. This is why systematic attacks against judicial independence damage or even end up destroying the domestic system of protection or human rights.
Cases brought before the ECtHR concerning judicial independence demonstrate the importance of the rule of law in the interpretation of the European Convention on Human Rights (ECHR) rights.
This Court has pointed out the three following considerations:
1. All ECHR parties have explicit guarantees of judicial independence in their laws.
2. The independence of the judiciary is a condition for the right to a fair hearing enshrined in Article 6 of the ECHR.
3. Judicial independence is operationalized in the persons vested with judicial power.
The ECtHR pays special attention to the protection of members of the judiciary against any threat to their independence and autonomy and the same protection applies to judges and to the members of the judicial councils.
One of the problems with the Polish reform is that according to the new legislation, both the new appointments of judicial members of the NCJ and the removal of the previous ones cannot be challenged or questioned in court, and those attempting to do so are subject to serious disciplinary measures, and this situation undermines the access to justice.
“The appointment of judges must be governed by legal, objective and non-partisan rules, respect for which should be subject to review by independent judicial bodies”
Our colleague has emphasized that the independence of the selecting organ directly affects the independence of the nominee, therefore, judges elected for the NCJ by the Sejm have no clear legitimacy as representatives of the judiciary because they are selected by politicians.
Moreover, the appointments made by the President of the Republic in contravention of judicial decisions demonstrate a clear interference of the executive in the competencies of the judiciary, demonstrating a lack of respect for the Rule of Law.
In this regard, Dr. Sanz has indicated that the ECtHR considers that the reorganization of the judiciary in Poland is aimed at weakening judicial independence and at subordinating it to the other State powers. This implies a violation of the Polish Constitution, the Treaty of the EU and the ECHR.
III. Consequences of the Polish judiciary not being “a Tribunal established by the law”
Since neither the NCJ nor the Polish courts are considered courts established by law, the ECtHR does not require applicants to exhaust domestic remedies anymore and this is because under the new legislation most decisions taken upon the NCJ’s recommendation are no longer subject to appeal. What is more, the Court deems it unnecessary for applicants to lodge complaints before domestic tribunals who are in breach of the law and whose remedies have become useless and ineffective.
IV. Conclusion
In the end, persistent pressures on the judiciary have provoked structural consequences for the Rule of Law as a whole. The arbitrary and early termination of office of the members of the National Council of the Judiciary has affected the stability of the judiciary and the legal system.
“Without independent judges established by the law, a State cannot function adequately, therefore constituting a threat for that country as a democratic State based on the Rule of Law.”
The Polish judicial reform undermines the rule of law because it ruins the separation of powers and the independence of judges and courts, two of its most critical components.
