The report identifies the key ECtHR standards relevant to the protection of the rule of law (and specifically of the independence of the judiciary) and analyses the Polish rule of law cases that are pending before the Court, viewed against the background of these standards. It also considers how the ECtHR adjudication of these cases may influence the situation in Poland.
In recent years, in its case law, the ECtHR has formulated several important standards on protecting the rule of law, in particular in the context of safeguarding the independence of the judiciary.
Several ECtHR cases are crucial for rule of law in Poland
The report emphasises that the cases already communicated to Polish authorities by the ECtHR are divided into six groups, with 14 cases in total. In these cases, the ECtHR asked Polish government questions about Article 6 (right to a court). In three groups of cases, the Court’s questions concerned Article 13 of the Convention (right to an effective remedy), while in three cases the questions were raised about other infringements, namely, Article 8 (right to respect for private and family life), Article 10 (freedom of expression) and Article 1 of Protocol 1 (protection of property).
The report also states that protecting the rule of law in proceedings before the ECtHR is ensured by considering specific applications submitted to the Court, based on complaints of violations of certain freedoms and rights enshrined in the European Convention on Human Rights.
“The European Court of Human Rights protects the rule of law, and especially the right to an independent court, by examining specific applications submitted to the Court which allege violations of certain freedoms and rights enshrined in the European Convention on Human Rights. As a consequence, it is the applicants and their representatives who are primarily responsible for involving the ECtHR in such cases. Our report demonstrates that a number of proceedings pending before the Strasbourg Court are crucial for the protection of the rule of law in Poland. However, there are other areas where litigation before the Court may also prove beneficial e.g. different aspects of domestic disciplinary proceedings, disproportionate punishment or sanction in retaliation for a judge’s exercise of their freedom of expression, rules of judicial secondments.” says Dr Katarzyna Wiśniewska, Coordinator of the HFHR Strategic Litigation Programme.
The court's findings by be very important in practice
The pending cases cover the status of the Polish Constitutional Court, the National Council of the Judiciary, the new Chambers of the Polish Supreme Court, as well as the appointments and dismissals of judges from their functions within the judiciary. The relatively fast pace that the ECtHR has examined such applications suggests that the Court is becoming more willing to give priority to cases involving the rule of law.
“The ECtHR’s finding that there has been a breach of Article 6(1) ECHR in any of the communicated cases may be extremely important in practice, although the effects of such a judgment will obviously depend on its specific wording. For instance, if the Court rules that the newly created chambers of the Supreme Court do not constitute a 'tribunal established by law'. This will mean that, in principle, any proceedings before these bodies are defective for the Convention purposes. In a similar vein, any ECtHR ruling that the participation of persons elected by the Parliament in December 2015 in the examination of cases before the Constitutional Tribunal violates Article 6 ECHR would pave the way for the submission of applications for many Polish citizens” says Dr Marcin Szwed a lawyer of the Strategic Litigation Programme.