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The sacking of judges in the face of ECHR case law


On 24 April 2025, the Ministry of Justice presented a draft bill titled ‘the Act on the restoration of the right to an independent and impartial court established by law by regulating the effects of the resolutions of the National Council of the Judiciary adopted between 2018 and 2025’[1].

In short, the Ministry of Justice's proposal assumes the following:

- the annulment of all judicial appointments from 2018 to 2025;

- collectively applying only the principle of group responsibility, without any individualisation and without guaranteeing the right of appeal to the courts;

- the right of appeal only applies to classification into one of three groups: green, yellow or red, which constitutes a stigmatising element in itself;

- invalidation of individual resolutions with no basis in the circumstances of the specific case[2].

According to the written justification for the project, the intent is to form part of the implementation of the European Court of Human Rights' (hereinafter: ECHR) judgement in the case Wałęsa v. Poland[3].

It is worth noting, therefore, that this draft is inconsistent with the principles governing the execution of ECHR judgements and with the European Convention on Human Rights and Fundamental Freedoms.

While Poland is free to choose how it will fulfil its obligations arising from the execution of ECHR judgements, these methods must be consistent with the Convention and the general requirements of the rule of law. One of the most important principles in ECHR case law is the principle of the irremovability of judges during their office term. The draft violates this principle.

In particular, the draft is inconsistent with Articles 6, 8 and 14 of the Convention. It introduces a solution essentially consisting of the statutory removal from office of certain judges through dismissal or demotion to a lower court, which is equivalent to removal from their previous office. This solution is blatantly inconsistent with Article 6, Section 1 of the Convention and will certainly result in justified complaints to the ECHR.

The ECHR has repeatedly ruled that it is inadmissible to adopt normative acts that lead to the removal of judges ex lege without conducting an individualised procedure[4].

There is no doubt that the solutions in the bill establish a formula that completely contradicts this assumption: they lead to a judge being removed from office by operation of law, bypassing an individual assessment and creating the appearance of a right to a court[5].

It is unacceptable that the legislator intends to enforce the judgment by violating the standards of the Convention. In this case, this involves failing to respect the principle of irremovability of judges and the right to a court for judges appointed after 2017. The draft does not guarantee that those within its scope will have access to an independent and impartial court established by law that has full jurisdiction to hear cases of this nature. An appeal to the Supreme Court, which is only available for placing a judge on the list[6], is an insufficient solution and clearly does not meet the standards of the Convention due to the national court's lack of full jurisdiction[7].

An appeal to implement the right to a court is only possible when entering a new competition. The draft provides for the removal of a judge from office, which occurs by statute. While the statute directly provides for this effect for a group of people who did not hold the office of judge before their appointment, it provides for statutory demotion for a group of people who were judges immediately before their appointment. This demotion is, in effect, equivalent to removal from the previous office.

This is contrary to Article 180, Section 1-2 of the Constitution of the Republic of Poland („judges are irremovable, and the removal of a judge from office may occur only by a court decision and only in cases specified in the statute, and therefore not on the basis of the statute”). This is all the more striking because the Constitution of the Republic of Poland establishes a high level of protection, as not only the removal of a judge from office, but also suspension from office, transfer to another seat or to another position against his/her will may occur only by a court decision and only in cases specified in the statute.

Moreover, according to the draft, the list of persons affected by the provisions of the Act, as set out in the Minister of Justice's announcement, is not subject to an administrative court complaint. The right of appeal to the Supreme Court for an individual concerns only their entry on the list, in terms of the accuracy of the determination of the provisions of the Act, or any omission from the list. Additionally, filing an appeal does not suspend the provisions of the Act[8].

The ECHR only permits the deprivation of judges' right to a court in exceptional circumstances. If a national system closes off access to courts, the ECHR will examine each case to determine whether the nature of the dispute substantially justifies the application of a derogation from the guarantees provided for in Article 6 of the Convention. The ECHR has previously considered the possibility of such a derogation. In one case, it held that this could only be permitted under exceptional circumstances, provided that the state had expressly excluded the right of access to court for the relevant staff category in its national law and that this exclusion was justified by objective reasons of state[9].

The draft directly relates to the civil rights and obligations of judges removed from the profession. This statement is justified in the light of the case law of the ECHR referred to above. In the case of Gyulumyan and others v. Armenia[10], the ECHR stated that the Convention does not prevent states from making lawful and necessary decisions to reform the judicial system. The government's authority to undertake such reforms cannot be questioned, provided that the reforms do not undermine the independence of the judiciary and its management bodies. However, the draft law cannot be considered lawful or as providing the necessary measures for the planned reform. Moreover, it undermines the independence of the judiciary in an unprecedented way.

It should be emphasised that, contrary to the project's assumptions, judges appointed after 2017 are indeed judges. This is supported by case laws from both domestic and international courts. The Venice Commission also adopted this view in its opinion of 14 October 2024[11].

This obvious finding has been undermined in the Ministry of Justice's draft, which constitutes a clear manipulation of the existing case law and exposes the drafters' true intentions: envy and a desire for revenge against the judges who applied for promotion or appointment to judicial positions.

The project has been met with widespread criticism. In addition to comments of lawyers[12], the Venice Commission[13], the Helsinki Foundation for Human Rights[14] and the Commissioner for Human Rights have all given negative assessments of the project. The Commissioner, Professor Marcin Wiącek, stated that "there is a risk that we will fall from one crisis into another. The proposed model may cause further problems at European tribunal hearings in the future"[15].

Surprisingly, changes were made to the justification for the bill after its announcement. The original justification claimed that case law from the ECHR stated that any judgement issued with the participation of a judge appointed after 2017 would violate the right to a court established by law. However, this thesis has no basis in the case law of European courts, which have emphasised that the mere fact of a judge being appointed at the request of the "new" National Council of the Judiciary does not mean that a judgement issued with their participation automatically violates European law or the Convention. On 13 May 2025, this part of the justification for the bill disappeared from government websites. However, the bill itself was not amended — it still assumes the removal of judges from office without providing them with the right to legal action. Bizarrely, the provisions of the bill are still based on the view that the government had previously deemed them outdated and removed from the public sphere.


 


[5] look at footnote no 2.

[6] Article 15 of the draft.

[8] look at footnote no 2.

[13] Look at footnote no 11.

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