Saturday, November 27

New blow to Poland for its authoritarian drift: the Strasbourg court rules against the assault on the judiciary

New judicial blow to Poland for its authoritarian drift. This time it has been the European Court of Human Rights, based in Strasbourg, which has just ruled against the assault on the judiciary and asks Warsaw to correct the appointment system of the council of the judiciary (the Polish NCJ) to eliminate the interference of the Executive and the Legislative.

In a ruling this Monday, the ECHR has unanimously held that there has been a violation of the right to a fair trial in accordance with the European Convention on Human Rights.

The case (Dolińska-Ficek and Ozimek v. Poland) referred to complaints filed by two judges that the Extraordinary Review and Public Affairs Chamber of the Supreme Court, which had resolved the cases that concern them, had not been a ” court established by law “and lacked impartiality and independence.

The plaintiffs specifically complained that the Chamber of Extraordinary Review and Public Affairs, one of the two newly created Supreme Court chambers, was composed of judges appointed by the President of Poland, Andrzej Duda, on the recommendation of the National Council of the Judiciary (the NCJ), the Polish constitutional body that safeguards the independence of courts and judges and that has been the subject of controversy since the entry into force of new legislation that establishes, among other things, that its judicial members are no longer elected by judges but by the Sejm (the Lower House of Parliament).

The case is one of 57 lawsuits against Poland, filed between 2018-2021, relating to various aspects of the reorganization of the Polish judicial system that began in 2017.

The Court stressed that its task was not to assess the legitimacy of the reorganization of the Polish judiciary as a whole, but to determine whether the changes had affected it. And, if so, the rights of Mrs Dolińska-Ficek and of the Lord. Ozimek under Article 6.1 of the Convention, regarding having a fair trial.

The Court finds that the procedure for appointing judges had been “unduly influenced” by the legislative and executive branches.

This is a fundamental irregularity that “negatively affected the entire process and compromised the legitimacy of the Supreme Court’s Extraordinary Review and Public Affairs Chamber, which had examined the plaintiffs’ cases.” Therefore, the Extraordinary Review and Public Affairs Chamber was not an ‘independent and impartial court established by law’ within the meaning of the European Convention. ”

The sentence resembles that of Reczkowicz v. Poland of July 2021. However, in this new judgment an additional manifest violation of domestic law was found because, “in flagrant defiance of the rule of law”, the President of Poland carried out judicial appointments despite a court order that had suspended the implementation of the NCJ resolution recommending judges to the Chamber for Extraordinary Review and Public Affairs.

“Whereas the violation of the plaintiffs’ rights originated in the amendments to Polish law that deprived the Polish judiciary of the right to elect judicial members of the NCJ and allowed the executive and the legislature to interfere directly or indirectly in the proceedings judicial appointment “, the Court affirms,” ​​the legitimacy of a court composed of judges thus appointed is systematically compromised and prompt corrective action by the Polish State is required. ”

When the Strasbourg Court finds a violation of the Convention, “the State has the legal obligation to decide the measures it has to adopt in its domestic legal system to put an end to the situation indicated and repair the situation. Therefore, it is up to the The State of Poland draw the necessary conclusions from this judgment and take the appropriate measures to resolve the problems that are at the root of the violations found by the Court and prevent similar violations from occurring in the future. ”

The Court has decided that Poland must pay each of the plaintiffs € 15,000 in non-pecuniary damage.

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