Up to Four Times
On the Election of a "Polish National" Judge to the ECHR
The Council of Europe’s requirements for transparency in the process of selecting a “national” judge for the European Court of Human Rights (ECtHR) should be strengthened. This is the lesson to be learned from the saga of the selection of candidates for “Polish national judge” post, lasting now for more than three years. Poland, which has been going through a crisis of the rule of law in recent years, and the ongoing process of its restoration (see: here, here, and here) may serve as an important example.
About the Three Failures
First, it is crucial to outline the context. The term of the previous judge elected in respect of Poland – Judge Krzysztof Wojtyczek – ended in 2021. However, he continues to serve as judge as his successor has not yet been elected. The end date of the term of office was during the rule of the populist Law and Justice party in Poland, which was in power until December 2023. The populists had, therefore, an opportunity to propose a list of candidates aligned with their vision of the ideal ECtHR judge. In principle, such an “ideal candidate”, once elected, would prioritise the originalist vision of the founding fathers of the European Convention on Human Rights (ECHR). Rather reluctantly, he/she would refer to the Convention as a living instrument. The latter concept is predominantly used to provide ECHR legal protection to inter alia sexual minorities, those fighting to improve access to abortion, and other sensitive issues opposed by populists. The Law and Justice Party did not, however, manage to use its potential for political influence.
The lists submitted by the populist Polish government were rejected by the Parliamentary Assembly of the Council of Europe three times. The first rejection was due to procedural issues, with the Assembly finding that the national procedure for selecting candidates, which was not accompanied by any public hearing, did not meet the standards set by the Assembly. In subsequent attempts, even though human rights NGOs were allowed to observe interviews with candidates, the lists (first in 2022 and second in early 2023) were again rejected because “not all candidates meet the requirements of Article 21 of the Convention.” The populist government did not make a fourth attempt to propose a new list of candidates.
The Fourth (the Last?) Approach
In March 2024, the selection procedure has restarted for the fourth time. This procedure is now conducted under the democratic leadership of the Foreign Affairs Ministry (MoFA), which sees cooperation with the ECtHR as crucial to restoring the rule of law in Poland. This was evidenced by letters sent by MoFA to the President of the ECtHR, Síofra O’Leary, and to the members of the Committee of Ministers of the Council of Europe just after the creation of the new government. In those letters the Polish Government declared the will and determination to implement ECtHR judgments, particularly those regarding the principles of the rule of law and independence of the judiciary. This is also evidenced in Poland’s government’s continuous dialogue with ECtHR.
The new government’s approach in selecting candidates for ECtHR judge differs in many aspects from the previous attempts. This could be seen even before the competition for the post of judge formally began. Before this successive fourth competition was announced, consultations were held with the non-governmental organisations, thanks to which certain adjustments were made to the procedure.
Two of the changes made are worth noting. The first relates to the composition of the selection committee. Representatives of the legal professions, legal scholarship, and the ombudsman’s office were introduced to the composition selection committee. The second is the introduction of a public hearing in the Parliament (in the Senat) at the final stage of the process, already after the interviews have taken place but before the Polish Government finally submits the list of candidates to the Parliamentary Assembly of the Council of Europe.
What the civil society organisations failed to push through was the disclosure of the identity of the candidates participating in the competition. Ultimately, a solution was adopted: candidates could decide whether to reveal themselves. Recognising the importance and significance of this process, I have decided to publish an appeal to the participating candidates to reveal their identities. I did so because I firmly believe that due to the role and importance that a “national” judge of the European Court of Human Rights has, civil society should be able to know the candidates’ identities. At the end of the day, the majority — 16 out of 27 who submitted applications—decided to reveal themselves. In addition, two of them sent their applications to the OKO Press, where I published my appeal.
The interviews with the candidates, which I had the opportunity to observe as a representative of Amnesty International, took place May 27-29. Candidates were asked three substantive questions: the relationship between EU law and the ECHR, positive obligations, and the place of Article 6 ECHR in the Polish legal order. The latter question evidently referred to the problematic judgments of the Polish Constitutional Tribunal declaring the ECHR incompatible with the Polish Constitution. The selection committee concluded its deliberations by submitting the (still non-public) list with names of selected candidates to the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights. Once it has been reviewed, the list will be made public, and a parliamentary hearing will be held.
More Transparency!
Undoubtedly, there are many positive aspects of the ongoing procedure. The most important of these would be the openness to civil society’s voice, which was not the case against the background to the earlier efforts to shrink space for civil society. This is also evident in the composition of the selection team, which did not consist (as before) only of government representatives but also included civil society representatives. Moreover, the persons named by the government to the selection committee were not just civil servants but highly respected individuals, including former judges of the highest courts, headed by former CJEU judge Marek Safjan.
The legal entrenchment of this procedure could undoubtedly be improved and strengthened by passing a law regulating the election of a judge in respect of Poland to the ECtHR. The procedure currently underway is based on internal regulations issued by the Minister of Foreign Affairs. This is understandable in this context, as the procedure had to begin quickly after the creation of the new government, as the three earlier attempts had proved unsuccessful. It was, therefore, obvious that there was not enough time for Parliament to pass a law regulating the election of judges early on. However, in this context, it is worth noting that the Parliamentary Assembly requires the procedure to be “stable and established in advance, through codification or in a settled administrative practice”. Hence, it would be reasonable to expect the enactment of such a law in the future.
The Parliamentary Assembly of the Council of Europe (PACE) also requires that “the national selection procedures must be fair and transparent” (par. 7.1). However, PACE does not devote more space to this issue and only points out, by way of example, the violation of the principle of transparency when there was no public call for candidature. At the same time, however, the Steering Committee for Human Rights (CDDH) draws attention (par. 57) to some of the risks associated with excessive transparency in the procedure, such as the possible negative impact on the reputation of potential candidates.
The indicated fear of reputational risk and the CDDH report were the primary reasons for limiting the transparency of Poland’s ongoing selection process. Because of this the previous candidates were not compelled to disclose themselves, and the interviews themselves were not broadcasted; only representatives of non-governmental organisations working for human rights could observe them. At the same time, other competitions for important positions held by the current government were conducted with more openness. A particular example of this was the selection of the Chairman of the Office of Personal Data Protection, whose election was preceded by a hearing of the candidates in the Parliament, although this was not required by law.
In my deepest conviction, this should not be the case. Poland’s case shows that the selection process’ lack of transparency fostered the election of candidates who were ultimately found not to meet the requirements of Article 21 of the Convention. The current increase in transparency is certainly a step in the right direction, but the procedure could and should be more transparent.
Therefore, based on the Polish saga related to the election of an ECtHR judge, it would be worthwhile to rethink the Council of Europe’s procedure for election of a judges to the ECtHR regarding the transparency of the national selection procedure. The ECtHR is rightly seen as a key court setting European human rights standards. Its judges are of great importance to its relevance and especially its effectiveness. If this is the case, then consequently, the national selection procedure, constituting the first and key stage of the process of selecting candidates for the ECtHR, should be more transparent.
This matter should be considered in the future stock-taking attempt that the Assembly is likely to undertake now.
The article expresses my personal views only and cannot be attributed to Amnesty International.
