18 August 2022

Testing judicial independence

On the recent developments in the Polish rule of law crisis

Despite the recent abolition of the Disciplinary Chamber, the crisis in the Polish judiciary is still far from resolved. The main reason for this is that the status of judges appointed at the request of the National Council of the Judiciary (NCJ), which lost its independence after the 2018 reform, have not yet been addressed. As a result of the lack of a systemic solution, the problem of irregular judicial appointments must be dealt with by courts in concrete cases. For that purpose, in 2020, the Supreme Court has developed a test aimed at determination of the impact of irregularities in the appointment of judges on the legality of the composition of the court. Now the most recent amendment of 9 June to the Act on the Supreme Court introduced a different test, which, although it also refers to the values of impartiality and judicial independence, raises serious concerns.

Test of judicial independence and impartiality

According to the case law of the ECtHR, when the Supreme Court adjudicates with the participation of a judge appointed at the request of the reorganised NCJ, it may violate the right to a “tribunal established by law”, guaranteed under Article 6 § 1 ECHR. However, the Court has still not ruled on any case involving an improperly appointed judge of a common court, hence doubts may arise as to whether, from the perspective of the Convention, the situation of this group of judges is identical to that of newly appointed judges of the Supreme Court.

The Polish Supreme Court, in a resolution of 23 January 2020, differentiated between the effects of irregularities in Supreme Court and common law court formations. While in the case of the former, the participation of a defectively appointed judge always leads to an invalidity of proceedings, which should result in the decision being overturned, in the case of common court judges, such effect depends on whether flaws in the appointment process negatively affected independence and impartiality of a judge. In the reasoning to the resolution, the Supreme Court indicated which factors should be considered in a test of independence and impartiality of the judge. These include, inter alia, the level of the judiciary to which the appointment was made; whether the appointment was for a first appointment or for a judicial promotion; the subject matter of the case; other violations of law in the course of the appointment procedure; the relationship with the Ministry of Justice; whether a person recommended for the appointment had obviously inferior competence to their counter-candidate.

The aforementioned resolution was issued in January 2020, that is before the development of the ECtHR case law on the “right to a tribunal established by law” in the Grand Chamber judgment in Ástráðsson v Iceland and in subsequent Polish cases (Reczkowicz v Poland, Dolińska-Ficek and Ozimek v Poland, Advance Pharma sp. z o.o. v Poland). However, the Supreme Court is of the opinion that despite the development of ECHR standards, the resolution is still valid.

Practical application of the test

In its judgment of 26 July 2022 the Supreme Court applied the test developed in the aforementioned resolution to assess the “independence and impartiality” of J.D. – the defectively appointed judge of the court of appeal. Significantly, this test was carried out by the Supreme Court ex officio, i.e. without a party’s request. The Supreme Court justified this step on the grounds that one of the parties to the proceedings was the State Treasury, represented by the President of the Circuit Court subordinate to the Court of Appeal, the president of which was the defectively appointed judge in question, and that there were numerous publications, the content of which could suggest the existence of strong links between the said judge and the Ministry of Justice.

First of all, the Supreme Court examined the course of the appointment procedure of the judge in question. In this respect, it noted that the visiting judges’ opinion (one of the documents drawn up in the course of the nomination procedure), which was favourable to J.D., contained significant shortcomings. In particular, it did not contain an analysis of the reasons why the Court of Appeal had overturned one of the judgments delivered by the panel in which J.D. had participated. Meanwhile, it was apparent from the grounds of the judgment of the court of second instance that there had been a number of serious shortcomings in the proceedings before the court with J.D. in the bench. The Supreme Court pointed out that the visiting judges had also failed to notice that the judge had not drafted the reasonings for his judgments on time. The Supreme Court further noted that J.D.’s candidature for the appointment had been overwhelmingly negatively reviewed by the Appellate Court College and the General Assembly of Appellate Judges.  Despite this, the NCJ decided to present his candidature to the President. During the meeting of the NCJ, one member of the Council stated that J.D. had the best academic record among the candidates. However, the Supreme Court pointed out that such an opinion was unfounded, as this judge did not have any academic achievements unlike another candidate who was rejected by the NCJ. The Supreme Court also took into account that one of the members of the NCJ, whose candidature to this organ was supported by J.D., did not exclude himself from the deliberations and took part in the vote on J.D.’s nomination.

The Supreme Court went on to refer to other circumstances concerning J.D. It noted, among others, the fact that J.D. was transferred to another court by the Minister of Justice in circumstances indicating that the sole reason for such a move was to ensure that the judge was entitled to a housing allowance. According to the Supreme Court, these circumstances indicate that J.D. enjoyed special consideration from the Ministry of Justice. The fact that J.D. later lent his support in the procedure for the election of new members of the NCJ to the former Deputy Minister of Justice may also be indicative of the relationship with the Ministry.

The Supreme Court also took into account the character of the case. It concerned a claim for damages for wrongful pre-trial detention, directed against the State Treasury represented by the President of the Circuit Court. Any compensation would therefore have to be paid from the funds of the Circuit Court, which was subordinate to the Court of Appeal, whose President was J.D.

The Supreme Court likewise drew attention to the judge’s behaviour during the cassation proceedings. After the Supreme Court decided to postpone the proceedings until it had been determined whether the panel of the court that had issued the judgment was lawfully composed, J.D. filed a complaint to the First President of the Supreme Court and suggested that disciplinary proceedings be initiated against the Supreme Court’s judges. In the opinion of the Supreme Court, suggestions that the Supreme Court’ judges should face disciplinary responsibility for the way they conduct the proceedings also show negatively how J.D. perceives the role of the courts.

In the light of all these circumstances, the Supreme Court concluded that Judge J.D. did not meet the conditions of impartiality and independence. Thus, the Court of Appeal’s judgment was issued by unlawfully composed panel and as such it had to be set aside.

Do we really need such test?

It is hard to disagree with the Supreme Court that all the factors mentioned in the judgment objectively may negatively affect the perception of a judge as independent and impartial. However, one has to wonder whether it was at all necessary to carry out such a detailed analysis of the circumstances of the judge’s appointment, his links with the Ministry of Justice, etc.

In the judgments concerning the flawed appointments to the Supreme Court, the ECtHR did not assess in detail the relationship of specific judges with the Ministry of Justice and the impact of deficiencies in the composition of the NCJ on the independence and impartiality of specific judges. In the Reczkowicz case, the mere fact that a judge was appointed at the request of the reorganised NCJ was a sufficient factor to declare a violation of Article 6 § 1. In the other two judgments, the ECtHR took other circumstances into account as well, but it appears that, again, it was the composition of the NCJ that was of most relevance. This raises the question as to whether the test applied by the Supreme Court is not too detailed and whether, in practice, it will not lead to the upholding of judgments rendered by defectively appointed judges, what in turn may lead to a collision with Article 6 § 1 ECHR.

In my opinion, the significance of the Supreme Court’s test for independence and impartiality of judges should be seen in the context of the third stage of the Ástráðsson test. To reiterate, the first two stages involve an examination of whether there has been a manifest breach of national law and whether the violated norms were fundamental to the entire appointment process. The third step aims to determine whether the national courts have duly reviewed and remedied the effects of the violations of law in the judicial appointment procedure. In the Polish cases considered so far by the Court, the third stage of the Ástráðsson test was in fact of little relevance because the irregularities in the appointment concerned judges of the Supreme Court whose judgments were not subject to further appeal. However, this is not the case with the ordinary courts – their judgments can be challenged and a higher instance court can examine the extent of the irregularities in the appointment of a judge. The test developed in the Supreme Court’s resolution can therefore be seen as a mechanism to ensure that the courts are able to “review and remedy” the consequences of irregularities in the judicial appointment procedure and balance the competing interests of, on the one hand, the individual’s right to a court and, on the other, legal certainty.

Thus, it may be argued, as some Polish courts had already noted (e.g. the Court of Appeal in Gdańsk in its decision of 14 October 2021, ref. no. II AKa 154/21), that if the court upholds the ruling of the judge appointed upon the motion of non-independent NCJ, justifying its decision with careful application of the test developed by the Supreme Court, a violation of Article 6(1) ECHR could be avoided.

Of course, what matters is whether this test is applied correctly in practice. Nevertheless, the test set out in the resolution of the Supreme Court reflects, in my view, the Convention standards. Unfortunately, the same cannot be said about the alternative test introduced recently into Polish law.

The alternative test

As I already mentioned, in June 2022 Polish Parliament passed an amendment to the Act on the Supreme Court. Besides the abolition of the Disciplinary Chamber, the amendment introduced provisions authorising courts to examine, at the request of party to proceedings, “a judge’s compliance with the requirements of independence and impartiality, taking into account the circumstances surrounding his or her appointment and his or her conduct after appointment”. This examination will, however, only be allowed if “in the circumstances of the particular case, this may lead to a breach of the standard of independence or impartiality affecting the outcome of the case, taking into account the circumstances of the litigant and the nature of the case”. In my opinion, a provision formulated in this way will not enable the courts to provide sufficient protection of a right to a tribunal established by law.

First of all, in the light of ECtHR case law, a finding of a violation of the “right to a tribunal established by law” does not depend on whether the defect in the appointment of the judge affected the outcome of the proceedings before the court in which such a judge is sitting. The use of such a criterion in the aforementioned law is therefore an erroneous solution and may in practice lead to making it difficult, if not impossible, for the courts to review and remedy the effects of the breach of law resulting from the adjudication by defectively appointed judges. Secondly, the amendment did not remove the provision introduced in the infamous “Muzzle Law” which prohibited courts to assess the lawfulness of the appointment of a judge. However, in the context of the right to a tribunal established by law, the issue of legality of the appointment procedure is of crucial importance. Thirdly, to protect rights of individuals guaranteed under Article 6 of the Convention, courts must be able to overturn the decision on the grounds that it was issued by unlawfully appointed judges. Meanwhile, the new provisions specify that “The circumstances surrounding the appointment of a judge cannot constitute the sole basis for challenging a ruling made with the participation of that judge or questioning his independence and impartiality”.

It is therefore difficult to consider the test introduced in the amendment as a correct implementation of the ECHR standards. Unfortunately, the same can be said of the entire amendment, which seems to introduce certain illusory changes just to keep everything as it has been.

SUGGESTED CITATION  Szwed, Marcin: Testing judicial independence: On the recent developments in the Polish rule of law crisis, VerfBlog, 2022/8/18, https://verfassungsblog.de/testing-judicial-independence/, DOI: 10.17176/20220818-182010-0.

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