Poland has been the protagonist of several controversies over the reform that introduced a marked political variable in internal judicial decisions. The European Commission and the Court of Justice of the European Union considered that introducing a disciplinary system for judges poses a severe risk to judicial independence.
The European Court of Justice ruled in March that Poland’s new Regulations for appointing judges to the Supreme Court could violate EU law, and on 15 July 2021, it ruled in its judgment in Case C-791/19 that the disciplinary regime for judges in Poland is not compatible with EU law.
Now, again, the European Court of Human Rights (ECHR) has questioned on 8 November the judicial independence in Poland with a ruling in which it considers that the country’s Supreme Court deprived two judges, Dolińska-Ficek and Ozimek, of their right to a fair hearing recognized in the Article 6.1 of the European Convention on Human Rights.
The case concerned complaints brought by two judges, who had complained that their rights had been violated when they were rejected for judicial positions.
They claimed 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 ECHR ruled that Dolińska-Ficek and Ozimek cases were not analyzed by “a court established by law” but by a chamber that lacks impartiality and independence, which is why it condemns Poland to compensate each of the applicants with 15,000 euros in damages. It ends in this ruling with a call for Poland to urgently take all the necessary measures to end these severe violations of law.
Previously, the Court of Justice of the European Union, in its judgment of 19 November 2019, had already concluded that the Supreme Court judges appointed in the procedure involving the National Council of the Judiciary (NCJ) were not a court constituted following domestic law.
For this reason, this is not something new, and this case is only one of the 57 applications against Poland, lodged in 2018-2021, concerning various aspects of the reorganization of the Polish judicial system. The ECHR comes to settle what the European Court of Justice has already established.
The Polish government has been fighting for years in court against the European Commission since 2017, when Poland adopted a new disciplinary regime for Supreme Court, Judges and Ordinary Courts, creating a new Disciplinary Chamber within the Supreme Court with those competencies, which, according to the European Commission, does not guarantee independence and impartiality.
Furthermore, on 27 October, the European Court of Justice in Case C-204/21 R ordered Poland to pay the European Commission €1 000 000 as a daily penalty payment due to the rule of law dispute.
The Polish disciplinary regime undermines the judicial independence of Polish judges, and it does not ensure the necessary guarantees to protect judges from political control.
The independence of the judiciary needs to be upheld to protect citizens from discrimination, injustice and abuse of power and ensure equal treatment in the judicial system. Without an independent court, people will not be saved, and their rights will be threatened.
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