Op-Ed: “Not a lawful tribunal at all – the ECtHR’s judgment in Reczkowicz v. Poland” by Jakub Jaraczewski
The last two weeks saw an incredible flurry of judicial activity concerning the rule of law in Poland. First came what amounted to almost a real-time legal duel between the Polish Constitutional Tribunal and the Court of Justice of the European Union (CJEU). These events, apart from posing questions as to just how much respect for EU law the Polish Government and ruling party have, thrust also into the spotlight the Disciplinary Chamber of the Polish Supreme Court, the other top Polish court on the frontline of the country’s increasing dismantling of the rule of law.
The Disciplinary Chamber, created ex nihilo in 2018 and equipped with an ever-growing list of competences and powers aimed at prosecuting judges and lawyers in Poland, is the subject of increasing scrutiny from the CJEU. As the Luxembourg court handed out its subsequent interim orders, and on 15 July, a judgment finding that this Chamber lacks the qualities necessary to function as an independent and impartial court (Commission v Poland, C-791/19), Poland disregarded the ordered measures. The continued activity of the Disciplinary Chamber, used among others to prosecute and intimidate Polish judges who spoke out against the Polish Government, caused increasing strain on relations between Brussels and Warsaw.
At the same time, the other vital European court, the European Court of Human Rights, inched closer towards resolving its cases related to the status of Polish courts. Before that happened, the ECtHR reiterated and developed further its case law on the independence of the judiciary and status of courts in the landmark judgment in Ástráðsson v. Iceland (application no. 26374/18), finding an Icelandic court to be improperly composed owing to lack of observance of the domestic procedure for appointing its judges. As of the time of writing, no less than 36 cases related to the rule of law have been communicated by the ECtHR to the Polish Government and are at various stages of resolution.
On 22 July, the ECtHR handed out its judgment in the case Reczkowicz v. Poland (application no. 43447/19). The case arose from an application made by a practising lawyer (adwokat) who stood before the Disciplinary Chamber to appeal an earlier disciplinary penalty imposed on her by the Bar Association in Gdańsk, which was upheld by higher instance courts. Reczkowicz, having lost her case before the Disciplinary Chamber, applied to the ECtHR, claiming that her right to a fair trial enshrined in Article 6(1) of the European Convention on Human Rights had been violated. She argued that her case had not been heard by an independent and impartial court established by law, owing to the fact that the judges of that chamber were appointed in a way that contravenes the Convention.
While considering the case, the ECtHR drew upon its own previous case law, including the aforementioned Ástráðsson case, but also its previous cases concerning the judiciary (such as the landmark judgment in the case Baka v. Hungary, (application no. 20261/12) and the recent case Xero Flor v. Poland (Application no. 4907/18), in which it examined the status of a judge of the Polish Constitutional Tribunal. It heavily invoked the activities of the various bodies of the European Union, chiefly among them the CJEU and its case law on independence of judiciary and the Polish Supreme Court in particular. Apart from the EU, the ECtHR also considered the elaborations from the United Nations, OSCE and ODIHR, the Council of Europe (including the Venice Commission) and the European Network of Councils for the Judiciary. Two interventions were made in the case: one by the International Commission of Jurists, and one by the Polish Commissioner of Human Rights Adam Bodnar, one of few domestic state actors who openly contested the actions of the Disciplinary Chamber.
The verdict of the European Court of Human Rights is nothing but stunning – the ECtHR has found the Disciplinary Chamber as failing to fulfil the basic criteria of being a ‘tribunal established by law’. The Court did not consider the Chamber’s independence or impartiality, nor the status or background of individual judges who presided over Reczkowicz’s case. It had stopped at the very first step of the test the ECtHR conducts when assessing judicial bodies, and at that point concluded that from the perspective of the right to fair trial, the Disciplinary Chamber is not a lawful tribunal at all. Given that the ECtHR has examined a chamber of the Polish Supreme Court, one of the top judicial bodies in the country with wide competences, this finding strikes at the very heart of the recent process of ‘reforms’ of judiciary in Poland, as ‘cleaning the judiciary from criminal and communist elements’, touted by the ruling party as a core element in making courts in Poland work for the people.
The Strasbourg court has arrived at this decision by reaching even deeper into the roots of the issues with the current state of Polish judiciary, namely by looking into the status of the National Chamber of Judiciary (NCJ), Poland’s top judicial self-governance body, which was effectively reset in 2017 and reappointed from the ground up with the majority of its current members being judges appointed by the parliament (where the ruling party has majority), members of the parliament (including from the ruling party) as well as the representatives of the executive. As the NCJ partakes in appointing new persons into the judicial profession and in promoting already sitting judges, including in the process of appointing them to the Supreme Court, the ECtHR examined the NCJ and the procedures it took part in, finding it to lack independence from the legislative and executive branches. Taking this finding to the next conclusion, the Strasbourg court found that the defects of the NCJ led to the Disciplinary Chamber, formed with its participation, to be effectively poisoned, lacking the attributes of a court or tribunal because of the way it was created.
The judgment itself is not final and may yet be referred to the Grand Chamber of the ECtHR. If it remains intact and becomes final, the consequences will be paramount. Anybody who stood before the Disciplinary Chamber or was subject to its decisions regarding their status, could apply to ECtHR, as long as of course they meet the other procedural criteria. While the number of such people is not overwhelming, this group would certainly include several activist judges who were victims of the Disciplinary Chamber’s actions.
The other potential consequence is even more far-reaching, as signalled by judge Krzysztof Wojtyczek in his separate concurring opinion. The National Council of Judiciary has, apart from appointing judges to the Disciplinary Chamber, participated in establishing, appointing, promoting, evaluating and assessing hundreds of Polish judges, court referendaires (referendarz sądowy), and assessors (judges-in-training). The findings of the ECtHR cast a shadow of doubt on the status of these individuals and given their sheer number – and the number of cases already heard with their participation – the implications for the Polish judiciary could be massive. The opportunity for the ECtHR to elaborate on these issues will hopefully come soon, as the Strasbourg court has already communicated to Poland two cases directly related to the matter – Brodowiak v. Poland (application no. 28122/20) and Dżus v. Poland (application no. 48599/20).
Jakub Jaraczewski is Research Coordinator at Democracy Reporting International, a Berlin-based NGO.