Europe rights court says Poland judicial appointments violated right to fair hearing
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Europe rights court says Poland judicial appointments violated right to fair hearing

The European Court of Human Rights (ECHR) unanimously ruled Tuesday that Poland violated Articles 6 and 1 (right to a fair hearing) of the European Convention on Human Rights by allowing a procedure for appointment of judges that was influenced by legislative and executive powers.

The case was brought before the ECHR by two judges. They argued that the Chamber of Extraordinary Review and Public Affairs of the Poland Supreme Court, which had decided cases concerning them, was not a “tribunal established by law” and had lacked impartiality and independence.

The Chamber of Extraordinary Review and Public Affairs is one of two newly created chambers of the Supreme Court, comprised of judges appointed by the President of Poland on the recommendation of the National Council of the Judiciary (NCJ). NCJ is the constitutional body in Poland established to safeguard the independence judiciary. It has been a source of controversy ever since a new resolution was enforced which states that the judicial members elected for the NCJ are not elected by judges but by the lower house of Parliament, Sejm.

The two judges challenged the validity of the new resolution. They addressed the appointment of judges, as the president had appointed the judges when a stay order had been granted on implementation of resolution while judicial review was ongoing. The case was dismissed.

When the judges filed their appeal before the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, the tribunal was similarly not independent and impartial as its judges were appointed by the NCJ through a similar process. Their appeal was dismissed by the Supreme Court in 2019. Similar appeals were also filed before the ECHR by Polish Commissioner for Human Rights and the International Commission of Jurists.

The ECHR on Tuesday found that the new resolution was in violation of the domestic law. They also found that the procedure for appointing judges, which was unduly influenced by the legislative and executive powers, was in itself incompatible with Article 6 and 1 of the Convention. Therefore, the legitimacy of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court was also compromised.

The ECHR decided that the Polish government should find different measures to be adopted in its domestic legal order and ensure no violations. ECHR further determined that there should be a separation of powers between the executive, legislative and judiciary. Lastly, the court held that the government was to pay each of the applicants 15,000 euros (EUR) in respect of non-pecuniary damage.