Graver, Hans Petter

English

<intR>²Dok

A New Nail in the Coffin for the 2017Polish Judicial ReformHans Petter Graver 2020-12-02T23:07:12On 1 December the Grand Chamber of the ECtHR gave an important ruling thatmay have wide-reaching implications for the ongoing attempts to curb the rule oflaw backsliding in Poland and other countries (Guðmundur Andri Ástráðsson v.Iceland, Application no. 26374/18). The case addresses the appointment of judges,and the way this affects the status of a court as a “tribunal established by law” in themeaning of Article 6 of the ECHR. It puts in question the 2017 Polish Judicial Reformand whether decisions taken by Polish courts where judges appointed by the newpolitically controlled National Council for the Judiciary can be regarded as decisionsby a “tribunal established by law”. This would affect both the new disciplinary tribunalof the Supreme Court and the so-called “Muzzle Law” that prohibits Polish judgesfrom questioning the legitimacy of a judge appointed by the Polish President.The backgroundOn 26 May 2016 Iceland introduced a new court of second instance in the Icelandicjudicial system, namely the Court of Appeal (Landsréttur), thereby replacing theformer two-tier system – consisting of District Courts and the Supreme Court – with athree-tier system.Subsequently a call for applications was issued for the posts of fifteen judges at theCourt of Appeal. Thirty-three were qualified applicants were assessed for the postsby an Evaluation Committee appointed according to Icelandic law. The Committee,an independent administrative body, is advisory vis-à-vis the Minister of Justice andthe Minister can only appoint candidates who are considered by the Committee to bethe most qualified for a given post. In order to appoint a candidate who had not beenconsidered the most qualified by the Committee, the Minister of Justice must obtainthe approval of Parliament.The Committee found that all thirty-three candidates were legally qualified, butit proposed a list of fifteen candidates whom it deemed to be the most qualified.In a letter dated 29 May 2017, the Minister of Justice presented to the Speakerof Parliament her proposal of fifteen candidates for appointment. The proposalcontained only eleven of the fifteen candidates whom the Evaluation Committeehad found to be the most qualified for the post of judge at the Court of Appeal. Thecandidates ranked 7th, 11th, 12th and 14th4 in the Committee’s evaluation table hadbeen removed from the list, and replaced with four other candidates ranked 17th,18th, 23rd and 30th. The proposal was accepted by a majority of the Parliament,voting along party lines, and confirmed by the President of Iceland.- 1 -On 23 March 2017 the applicant was convicted on the charges of driving withouta valid driving license and driving under the influence of drugs. The appeal wastransferred to the newly established Court of Appeal. The Court of Appeal notifiedthe applicant and the prosecution of the date of the trial as well as the compositionof the court that would be hearing the case. According to this letter, the Court wouldbe composed of three judges, including A.E., who was one of four judges who hadbeen proposed by the Minister of Justice for appointment to that court in breach ofthe procedural rules for appointment of judges. The applicant requested that A.E.withdraw from the case, on account of the irregularities in the procedure by whichshe, and the other three candidates in question, had been appointed as judges tothe Court of Appeal. The Court of Appeal, with the participation of A.E., rejectedthe applicant’s motion. This was upheld by the Supreme Court. The applicantcomplained to the ECtHR that his criminal conviction had been upheld by a “tribunal”which was not “established by law” and which was not independent and impartial, inviolation of Article 6 § 1 of the Convention.The findings of the ECtHRThe Court noted (in paragraph 226) that the process of appointment of judges maybe open to undue interference, and found that it therefore calls for strict scrutiny;moreover, it is evident that breaches of the law regulating the judicial appointmentprocess may render the participation of the relevant judge in the examination of acase “irregular”, and (paragraph 227) that a judge appointed in contravention ofthe relevant rules may lack the legitimacy to serve as a judge. It went on to state:“Having regard to its fundamental implications for the proper functioning and thelegitimacy of the judiciary in a democratic State governed by the rule of law, theCourt considers that the process of appointing judges necessarily constitutes aninherent element of the concept of ,establishment’ of a court or tribunal ,by law’, andan interpretation to the contrary would defy the purpose of the relevant requirement.”It recognized, however, that a finding that a court is not a “tribunal establishedby law” may, evidently, have considerable ramifications for the principles of legalcertainty and irremovability of judges, principles which must be carefully observedhaving regard to the important purposes they serve. In order to do the necessarybalancing, the court introduced three criteria that, taken cumulatively, shouldprovide a solid basis to guide the Court – and ultimately the national courts – in theassessment as to whether the irregularities in a given judicial appointment procedurewere of such gravity as to entail a violation of the right to a tribunal establishedby law, and whether the balance between the competing principles has beenstruck fairly and proportionately by the relevant State authorities in the particularcircumstances of a case.The Court considered in the first place that there must, in principle, be a manifestbreach of the domestic law, in the sense that the breach must be objectively andgenuinely identifiable as such (paragraph 244). Secondly, the breach in questionmust be assessed in the light of the object and purpose of the requirement of a“tribunal established by law”, namely to ensure the ability of the judiciary to performits duties free of undue interference and thereby to preserve the rule of law and- 2 -the separation of powers (paragraph 246). Thirdly, the Court considered that thereview conducted by national courts, if any, as to the legal consequences – in termsof an individual’s Convention rights – of a breach of a domestic rule on judicialappointments plays a significant role in determining whether such breach amountedto a violation of the right to a “tribunal established by law”, and thus forms part of thetest itself (paragraph 248).The Grand Chamber did not to review the judicial appointment system that is inplace in Iceland. It pointed out that there are a variety of different systems in Europefor the selection and appointment of judges, rather than a single model that wouldapply to all countries. The Court reiterated in this connection that although the notionof the separation of powers between the political organs of government and thejudiciary has assumed growing importance in its case-law, appointment of judges bythe executive or the legislature is permissible under the Convention, provided thatappointees are free from influence or pressure when carrying out their adjudicatoryrole.It did, however, seize the opportunity to refine and clarify the meaning to be givento the concept of a “tribunal established by law”, and to analyse its relationshipwith the other “institutional requirements” under Article 6 § 1, namely, those ofindependence and impartiality. The Court stressed that the absence of a manifestbreach of the domestic rules on judicial appointments does not as such rule outthe possibility of a violation of the right to a tribunal established by law. There mayindeed be circumstances where a judicial appointment procedure that is seeminglyin compliance with the relevant domestic rules nevertheless produces results thatare incompatible with the object and purpose of that Convention right. In suchcircumstances, the Court must pursue its examination under the second and thirdlimbs of the test set in order to determine whether the results of the applicationof the relevant domestic rules were compatible with the specific requirements ofthe right to a “tribunal established by law” within the meaning of the Convention(paragraph 245). It also underlined that Court will in principle defer to the nationalcourts’ interpretation and application of domestic law – unless their findings arearbitrary or manifestly unreasonable.The Court found that all three elements of the test applied to the Icelandic case sothat there had been a breach of the right to trail by a tribunal established by lawin the case. To the argument of the Icelandic government that the Supreme Courthad reached the conclusion that the right was not breached, after having examinedall relevant matters concerning A.E.’s appointment and the applicant’s right to beheard by a tribunal established by law, the Court noted (paragraph 281) that suchexamination was “not reflected in the judgment, and as such it remains unknownwhat that examination entailed and on what legal and factual grounds the SupremeCourt reached the conclusion that it did.”The significance of the caseThe significance of the judgement must be assessed on the background of theongoing changes in the relationship between the judiciary and the legislative and- 3 -executive powers in notably Hungary and Poland. These changes also affectthe system for the appointment of judges. For these reasons it is of particularimportance that the Grand Chamber emphasizes that the national law can itselfbreach the ability of the judiciary to perform its duties free of undue interference,and that the acceptance of such rules by the national courts need not be decisivefor the assessment under the convention if their findings are arbitrary or manifestlyunreasonable, or unsubstantiated by the reasoning of the court.It is also of significance that the rulings by judges appointed under irregularcircumstances cannot be recognized as rulings by a tribunal established by law,even if there are no indications of this having influenced the proceedings or theoutcome of the particular case. The implications of this for the recognitions of rulingsby Polish courts may be far-reaching and may imply that many rulings by thesecourts no longer should be recognized by other European Courts as decisions bytribunals established by law. This could entail that it is a violation of the conventionfor authorities in other European states to cooperate with the judicial system inPoland in giving effect to such rulings, without allowing for a full hearing of thesubstance of the case in a national court.- 4 -

A New Nail in the Coffin for the 2017 Polish Judicial Reform

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00009421/A_New_Nail_in_the_Coffin_for_the_2017_Polish_Judicial_Reform.pdf

A New Nail in the Coffin for the 2017 Polish Judicial Reform

Abstract

Similar works

Full text

Available Versions

<intR>²Dok