Grzęda v. Poland [GC]

Information Note on the Court’s case-law 260

March 2022

Grzęda v. Poland [GC] - 43572/18

Judgment 15.3.2022 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Lack of judicial review of premature termination ex lege, after legislative reform, of a serving judge’s mandate as member of the National Council of the Judiciary: violation

Facts – The applicant is a judge of the Supreme Administrative Court. In 2016, in accordance with the relevant provisions of the Constitution and the applicable legislation at the time, he was elected by the General Assembly of Judges of that court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts, for a four-year term as a member of the National Council of the Judiciary (NCJ). However, his term of office as a member of the NCJ was ended prematurely in 2018, following the entry into force of new legislation in the context of wide-scale judicial reform. In particular, the Act Amending the Act on the NCJ of 2017 (“the 2017 Amending Act”) provided that judicial members of the NCJ were no longer be elected by judges but by the Sejm (section 9), and that the terms of office of the NCJ’s judicial members elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of its new members (section 6). Thus, when the Sejm elected 15 judges as new members of the NCJ on 6 March 2018, the applicant’s term of office as a judicial member of the NCJ was terminated ex lege without any official prior notice. The applicant complains that he was denied access to a court in order to contest this measure.

Law – Article 6 § 1: In making its assessment, the Court took into account its judgments against Poland relating to the reorganisation of the judicial system (Xero Flor w Polsce sp. z o.o., Broda and Bojara and Reczkowicz), the rulings of the Polish Constitutional Court, Supreme Court and Supreme Administrative Court, and the Court of Justice of the European Union (CJEU), as well as multiple reports and assessments by European and international institutions.

(a)  Applicability

The present case raised a novel issue, namely the question whether Article 6 § 1 under its civil head was applicable to a dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ, while he still remained a serving judge.

(i)  Existence of a right – In light of the domestic legal framework in force at the time of his election and during his term of office, the applicant could arguably claim an entitlement under Polish law to protection against removal from his position as a judicial member of the NCJ during that period. In particular, having regard to Article 187 § 3 of the Constitution which provided for and protected the four-year term of the elected members of the NCJ, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions which either related to objective inability to hold such office or stemmed from the member’s own decision or initiative. The applicant’s claim to be entitled to serve his full term as a NCJ’s judicial member also found support in the fact that the NCJ was a body mandated by the Constitution to safeguard the independence of courts and judges.

The Government had maintained that the termination of the applicant’s term of office, as provided for in the 2017 Amending Act, was prompted by the need to implement the Constitutional Court’s judgment of 20 June 2017, which had held that the term of office of all elected members of the NCJ should have been of a joint nature, i.e. starting and ending on the same date, and not of an individual one. However, and in the first place, the validity and legitimacy of that judgment was called into question due to the presence on its five-judge bench of two judges, whose election had been vitiated by grave irregularities (in light of the Court’s findings in Xero Flor w Polsce sp. z o.o. and the relevant findings of the Polish Supreme Court). Secondly, and in any event, the impugned judgment neither specifically required the early termination of the term of office of the NCJ’s sitting judicial members, nor identified any extraordinary, constitutionally valid reasons that could exceptionally justify such a measure; it thus did not and could not put an end to their term of office. Thirdly, its premature termination clearly raised an issue of proportionality. In fact, alternative measures could have been taken which would have achieved the declared purpose, without breaching the constitutional rule of the four-year term of office. Lastly, as pinpointed by the Supreme Court on several occasions, by adopting the impugned judgment the Constitutional Court contradicted its own findings on the matter and disregarded its case-law requiring that changes to the status of members of constitutional bodies either be accompanied by an appropriate adjustment period or apply from the beginning of a new term of office.

The fact that the applicant’s term of office had been terminated ex lege on the date of election of new members of the NCJ could not be regarded as removing, retrospectively, the arguability of the right that he could claim under the rules in force at the time of his election. Since it was this new legislation (the 2017 Amending Act) which had set aside the former rules, it constituted the object of that very “dispute” in regard to which the Article 6 § 1 fair-hearing guarantees were arguably to apply. In the circumstances of the present case, the question whether a right existed under domestic law could not therefore be answered on the basis of the new legislation.

There had thus been a genuine and serious dispute over a “right”, namely, to serve a full term of four years as a judicial member of the NCJ, which the applicant could claim on arguable grounds under domestic law.

(ii)  Civil nature of the right – The Court applied the test developed in the judgment Vilho Eskelinen and Others v. Finland [GC] and comprising two cumulative conditions, which, if fully satisfied, would rebut the presumption of the applicability of Article 6. The Court left open the question regarding the first condition, since in any event, the second condition had not been met. Accordingly, Article 6 § 1 was applicable under its civil head.

(α)  The first condition (whether domestic law expressly excluded access to a court for the post or category of staff in question) – In view of the novel aspect of the case (it concerned not the principal activity of a judge, but his membership of the NCJ) as well as its more prominent public law features, the Court considered that it was appropriate to further develop the first condition. This condition was deliberately strict, and thus seldom satisfied, which sufficed to find that Article 6 was applicable, without considering the second limb of the test. The Court, however, considered that a straightforward application of the first condition would not be entirely apt in all situations. It was therefore prepared to accept that it could be regarded as fulfilled where, even without an express provision to this effect, it had been clearly shown that domestic law excluded access to a court for the type of dispute concerned. Thus, first of all, this condition was satisfied where domestic law contained an explicit exclusion of access to a court. Secondly, it might also be satisfied where the exclusion in question was of an implicit nature, in particular where it stemmed from a systemic interpretation of the applicable legal framework or the whole body of legal regulation.

(β)  The second condition (whether the exclusion from access to court was justified on objective grounds in the State’s interest) – According to the approach adopted in Vilho Eskelinen, the mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive.

In order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it had to be compatible with the rule of law which required, inter alia, that any interference must in principle be based on an instrument of general application. Section 6 of the 2017 Amending Act could not be regarded as such an instrument since it was directed at a specific group of fifteen clearly identifiable persons – judicial members of the NCJ elected under the previous regulation, including the applicant – and its primary purpose was to remove them from their seats on that body. The Court had already held that laws which were directed against specific persons were contrary to the rule of law.

The examination of the second condition had to take due account of the fact that the present case was closely related to judicial independence, since the NCJ was tasked with its safeguarding. One of the key manifestations of the NCJ’s role in this respect was its exclusive competence to propose candidates for appointment (initial and promotion) at every level of the judiciary and to every type of court. The effective exercise of its essential constitutional role therefore required NCJ’s autonomy vis-à-vis the political branches of State power. The removal, or threat of removal, of a NCJ’s judicial member during his or her term of office had the potential to affect the personal independence of that member in the exercise of his or her NCJ duties. By extension, its mission to safeguard judicial independence might also be adversely affected, and this would raise a number of rule-of-law issues, including those pertaining to the safeguarding of rights enshrined in and protected by the Convention. In this context, the Court had regard to the following considerations. First, all Contracting Parties to the Convention had explicit, formal guarantees of judicial independence in their laws, whether of constitutional or of statutory rank. Second, judicial independence was a condition sine qua non for the right to a fair hearing under Article 6. Third, judicial independence was operationalised in the persons who were vested with judicial power.

In this regard, the Court recalled its case-law concerning the special role in society of the judiciary as the guarantor of justice and the need to protect its members against any measures that could threaten their judicial independence and autonomy. Given the role played by judicial councils, the same considerations should also apply as regards the tenure of judges, such as the applicant in the present case, who were elected to serve on them because of their status. In this connection, judicial independence had to be understood in an inclusive manner and apply not only to a judge in his or her adjudicating role, but also to other official functions that a judge might be called upon to perform that were closely connected with the judicial system.

The requirement to ensure the independence of judicial councils was confirmed in recommendations of the Committee of Ministers as well as by other organs of the Council of Europe. Under the relevant Council of Europe standards, a judicial council’s autonomy in matters concerning judicial appointments must be protected from encroachment by the legislative and executive powers and its independence must be guaranteed. Furthermore, it was recommended that no less than half of the members of judicial councils should be judges chosen by their peers.

While there existed a widespread practice, endorsed by the Council of Europe, to put in place a judicial council as a body responsible for selection of judges, there was no explicit requirement in the Convention to this effect. In the Court’s view, whatever system was chosen by member States, they had to abide by their obligation to secure judicial independence. Consequently, where a judicial council was established, the State’s authorities should be under an obligation to ensure its independence from the executive and legislative powers in order to, inter alia, safeguard the integrity of the judicial appointment process. States were free to adopt such a model as a means of ensuring judicial independence but they could not instrumentalise it so as to undermine that independence.

There existed a clear link between the integrity of the judicial appointment process and the requirement of judicial independence in Article 6 § 1. Having regard to the above, the doubts it expressed as to the Constitutional Court’s judgment of 20 June 2017 and its relevant findings in Reczkowicz, as well as the domestic rulings of the Supreme Court and Supreme Administrative Court on the lack of independence of the NCJ, the Court found that the fundamental change in the manner of electing the NCJ’s judicial members (by the Sejm instead of by the assemblies of judges) considered jointly with the early termination of the terms of office of the previous judicial members meant that its independence was no longer guaranteed.

While the Convention did not prevent States from taking legitimate and necessary decisions to reform the judiciary, any reform should not result in undermining the independence of the judiciary and its governing bodies. In the light of the principles of subsidiarity and shared responsibility, the Contracting Parties’ task of ensuring judicial independence was of crucial importance, as the Convention system could not function properly without independent judges.

Having regard to all the foregoing considerations, the applicant’s exclusion from access to a court could not be justified on objective grounds in the State’s interest. The applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, had been prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence could not be regarded as being in the interest of a State governed by the rule of law. Members of the judiciary should enjoy – as do other citizens – protection from arbitrariness on the part of the legislative and executive powers, and only oversight by an independent judicial body of the legality of a measure such as removal from office was able to render such protection effective. In other words, the second condition of the Vilho Eskelinen test had not been met.

Conclusion: Article 6 § 1 applicable.

(b)  Merits

Referring, in particular, to the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence, the Court considered that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ had been removed from his position. The Court further emphasised the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, it was necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. The Court also had regard to the overall context of the various reforms undertaken by the Polish Government – of which the present case reflected one problematic aspect. The whole sequence of events in Poland vividly demonstrated that successive judicial reforms were aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, remodelling the NCJ and setting up new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline. As a result, the judiciary – an autonomous branch of State power – had been exposed to interference by the executive and legislative powers and thus had substantially weakened. The applicant’s case was one exemplification of this general trend. Consequently, on account of the lack of judicial review in this case the respondent State had impaired the very essence of the applicant’s right of access to a court.

All Contracting Parties should abide by the rule of law standards and respect their obligations under international law, including those voluntarily undertaken when they ratified the Convention, which was essentially a rule of law instrument. While the present case involved a number of domestic constitutional issues, under the Vienna Convention on the Law of Treaties, a State could not invoke its domestic law, including the constitution, as justification for its failure to respect its international law commitments.

Conclusion: violation (sixteen votes to one).

Article 41: finding of violation sufficient in respect of non-pecuniary damage.

(See Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Legal Summary; Xero Flor w Polsce sp. z o.o. v. Poland, 4907/18, 7 May 2021, Legal Summary; Broda and Bojara v. Poland, 26691/18 and 27367/18, 29 June 2021; and Reczkowicz v. Poland, 43447/19, 22 July 2021, Legal Summary; see also Dolińska-Ficek and Ozimek v. Poland, 49868/19 and 57511/19, 8 November 2021, Legal Summary)

 

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This summary by the Registry does not bind the Court.

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