7 years of the rule of law crisis. How CJEU and ECHR defended the rule of law in Poland in 2022?
The passing year of the rule of law crisis in Poland was mainly dominated with the issue of the "milestones" attached to the RRP and the disagreement within the ruling coalition as to how to achieve them. On the other hand, at the European level, both the Court of Justice of the European Union and the European Court of Human Rights were extremely active in Polish cases. Let us look at their activities.
In the last 12 months, almost 80 complaints have been filled to the Strasbourg Court in relation to the rule of law crisis. The vast majority of them concerned the violation of the right to a fair trial due to the hearing of the complainants’ cases by individuals nominated by the politicized National Council of the Judiciary. This issue also dominated the agenda of the CJEU, which dealt primarily with cases brought in previous years.
In the subsequent months, the ECHR confirmed, among others, that nominations for the Civil Chamber of the Supreme Court were flawed, pointing the need to immediately repair the model of appointing judges in Poland. At the same time, in cases presented by Polish judges who were punished for their actions in defense of the rule of law, the Strasbourg Court issued landmark rulings confirming the violation of their right to private life or stating the lack of access to court. What is exceptionally important, the ECHR ruled that due to the special role judges play in guaranteeing human rights and freedoms, they should be protected not only when they give rulings, but also when performing other functions, e.g., as members of the legal National Council of the Judiciary.
The most important news from Strasbourg, however, was granting a dozen of Polish judges temporary protection against repressions of the government - which until then had been reserved only for cases where the life or health of the complainant was at risk. The last 12 months of the ECHR's activity in defense of the Polish rule of law can therefore be assessed particularly good.
This year's accomplishments in the CJEU are a little less encouraging. Although it confirmed the compliance with EU law of the "money for the rule of law" mechanism or pointed to the impact of non-compliance with the rule of law values on competition protection, at the same time, in some of its judgments, it presented an approach different from that expressed by the ECHR. The Luxembourg Court accepted, among others, a question for a preliminary ruling from a person appointed to the Supreme Court at the request of the politicized National Council of the Judiciary - in a situation where the ECHR had previously stated that the presence of that person in the composition of the court had not guaranteed the right to a fair trial. At the same time, the CJEU confirmed its earlier assessment that the mere fact of a judge being nominated by the current National Council of the Judiciary cannot exclude his independence, as additional circumstances are required to agree with such notion. However, it should be assumed that in the coming years the approach of the CJEU to the issue of the politicized NCJ (KRS) will be similar to that already presented by the ECHR.
Moreover, in cases that should end next year, the Advocate General of the CJEU ruled, among others, that the abolished Disciplinary Chamber cannot effectively waive the immunity of judges, and the so-called “Muzzle Act” violates numerous provisions of EU law.
In both Strasbourg and Luxembourg, 2023 promises to be no less interesting. Further cases regarding the status of persons appointed at the request of the current National Council of the Judiciary, and perhaps also the so-called "neutrality test", introduced in the middle of this year, or independence from politicians of the National Council of the Judiciary and the Constitutional Tribunal themselves.
Contact to author:
Patryk Wachowiec, FOR legal analyst
patryk.wachowiec@for.org.pl
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