How should the new European Court of Human Rights judge from Poland be? Lech Garlicki explains
In 2021, the term of office of the Polish judge on the European Court of Human Rights will end. The Foreign Ministry does not want to reveal who has entered the competition. What are the stakes of this choice? Prof. Lech Garlicki, a former judge on the Constitutional Tribunal of Poland and the EtCHR, explains
On 31 October 2021, the nine-year term of the judge of the European Court of Human Rights representing Poland, Krzysztof Wojtyczek, will come to an end. The Ministry of Foreign Affairs has been coordinating the process of selecting three candidates to replace him. As required by the Council of Europe, there must be at least one woman among the three candidates. The deadline for presenting their candidacies to the CoE is 8 March 2021. The judge on the ECHR will be elected by the Parliamentary Assembly of the Council of Europe (PACE).
The applications were to have been submitted by 6 November 2020, and 18 candidates applied. The Foreign Ministry has not disclosed their names. The candidates included Prof. Tomasz Tadeusz Koncewicz from the University of Gdańsk, and Dr Michał Balcerzak from the Nicolaus Copernicus University in Toruń, and prof. Ireneusz Kamiński from the Polish Academy of Sciences. None of them was shortlisted.
The Helsinki Foundation for Human Rights, the Supreme Bar Council and the National Chamber of Legal Advisers have issued an appeal to the Foreign Minister to ensure the honesty, transparency and consistency of the national procedure for selecting the Polish judge for the ECHR.
They have appealed for openness, and for non-governmental organisations and the media to have access to the hearings of the candidates. They have indicated that in the past, the lack of transparency in the national procedure led to the rejection of the candidates’ list submitted by other countries.
We discuss the requirements and challenges faced by judges on the European Court of Human Rights with a retired ECHR judge, Prof. Lech Garlicki *.
Prof. Lech Garlicki, retired judge of the Constitutional Tribunal. He was a judge on the European Court of Human Rights, and twice sat on the Legislative Council to the Prime Minister. Professionally associated with the University of Warsaw. He has lectured at universities in the United States, Germany, France, Japan and Israel.
Anna Wójcik, The Wiktor Osiatyński Archive, OKO.press: Why is it important that the entire procedure for selecting a judge for the European Court of Human Rights be transparent?
Prof. Lech Garlicki: Because a judge on the Strasbourg Court has to meet not only very high but also very specific requirements.
Generally speaking, there are four such requirements.
First of all, the candidate must be a good lawyer, not only in regard to their knowledge about human rights, but also their familiarity with various areas of law, especially the operation of the courts, because most cases at the European Court of Human Rights relating to the decisions of the national courts.
Secondly, this must also be a person respected within the legal community, and in particular respected and known in the Polish courts. Because, in a sense, the judge on the ECHR is an intermediary between Polish courts, that is, the Polish legal community, and the decisions of the Strasbourg tribunal. This mechanism works both ways. A judge on the ECHR must be someone who will be listened to and treated as an authority, or at least a person whose opinion should be taken into account when meeting the judges on the Supreme Court or the Supreme Administrative Court. Only a person with a stable position in their circle will be able to achieve that.
Third, you need to know the languages, French and English. That would seem to be a trifle, but in practice it is extremely important, because without a decent knowledge of the language you cannot communicate. Of course, in the history of the ECHR, there have been judges on the tribunal who could read a little, or could speak a little French or English, but they did not have the opportunity to fully and freely interact and exchange opinions with other judges. They were immediately marginalised.
Fourth and most importantly, the judge must understand and respect the role of the European Court of Human Rights. A judge must be not only independent and independent, but they must also understand that their task is to ensure proper standards for respecting human rights in their own country and throughout the European legal area. This is the basic task of a Strasbourg judge.
And what is not the primary task of a judge on the ECHR?
Defending your country’s interests at all costs, understood to mean that your country cannot lose cases in Strasbourg, because everything is excellent there.
In my time on the European Court we used to somewhat maliciously refer to this category of judges as ‘patriotic judges.’ Such judges are always ready to give their lives to ensure their country is not convicted of human rights violations by the ECHR. But this is a misconception.
So who should defend Poland’s interests in the Council of Europe?
The Council of Europe has political organs, such as the committee of ministers, on which representatives of the Polish government sit and present the position of the Polish government. They act according to how a country represents itself on the international forum from the diplomatic point of view, that is, by listening to the instructions coming from the country and following them. But at the same time, the Council of Europe has a tribunal which is a judicial, independent body, and the judge is not an agent of the country that put forward his or her nomination.
The meaning of the existence of a so-called national judge on the ECHR is that the national judge simply knows the law and conditions of the country from which the cases are brought. The Court is assisted by this knowledge and juxtaposes it with the judgements of the ECHR.
On the other hand, it is not the task of the judge on the ECHR to represent the state’s position, in the sense of representing the interests of the current political authority. This is not the function of judges anywhere. And any such perception of the judge’s role is a misunderstanding.
Therefore, a candidate for a judgeship cannot be unequivocally politically involved or unambiguously identified with the current holders of political power. Such identification would irreversibly reduce his or her chances of convincing the outside world, and the fellow judges, that this is an independent judge who has completely broken away from the loyalties of the politics from which he emerged. And again, such a judge has no chance of meeting the requirements set before him.
However, on an emotional level, do you approach Poland differently?
Of course, it is always sad if Poland, or the country from which a judge comes, loses in the ECHR, that is, when the court finds that country to be in violation of the European Convention on Human Rights. Especially when it comes to serious, shameful matters, related to violations of the right to life, inhuman treatment or torture.
But the point of the Strasbourg system is that there are certain standards that must be the same for all countries, at least for those that want to be members of the real Europe.
If these standards are not respected in the country, despite having been communicated many times, the case may be referred to the ECHR. This happens only at the end, when the case has been examined by Polish courts or, as the jargon says, the national remedies have been exhausted. If the Polish courts resolve a given issue independently and fairly, the case will not be brought before the ECHR; and even if it is, the principle of subsidiarity requires the European Court to correct the position of the domestic courts only in the event of an obvious violation of the Convention’s requirements.
It should be remembered that over 90 percent of the complaints that come before the ECHR are considered inadmissible and are not considered on the merits.
The cases that go to trial are the tip of the iceberg, the cases where it is highly likely that there has been a violation of the Convention. Therefore, once the ECHR accepts the case, more than 80 percent of those judgements do find violations of the Convention.
Many cases are referred to the ECHR, and the verdicts take a long time to arrive.
From the very start of my activity on the ECHR, back in 2002, it was noticeable that the its docket was being overloaded with cases from a specific, quite small group of countries that have problems with respecting human rights.
This is a group of several countries: in 2019, almost two-thirds of the cases came from Russia, Turkey, Ukraine and Romania.
Poland was once part of this ‘group of leaders’, but just over 10 years ago it became possible to reduce the influx of Polish cases to a more civilised amount. Nevertheless, certain types of human rights violations are still far from being resolved in Poland, as evidenced in particular by cases referring to the length of court proceedings, prison conditions and the length of pre-trial detention.
Since tens of thousands of new complaints are submitted to the ECHR every year, a dilemma arises as to whether to select cases where the violation of human rights is obvious but, let’s say, relatively unserious, and not to consider such cases; to consider important cases more quickly; or to consider everything, with the awareness that the sentence will then be delayed perhaps for decades.
In practice, an intermediate solution is adopted. Certainly, cases are dealt with much faster today than they were twenty years ago. The cost of that is that fewer cases are admitted for more substantive consideration.
In principle, a national judge does not decide which cases will be admitted for substantive consideration, but they can influence the pace at which such cases will be resolved.
The team of lawyers who deal with Polish cases follows the guidelines of the national judge. If the judge thinks that certain matters should be prioritised, this is usually what happens.
The role of the judge is important, as they can make the handling of certain cases, for example from their home country, slower or faster. This may translate into the proportion of issues and problems that are, or are not, dealt with in Strasbourg.
That is why it is so important that an ECHR judge is independent, and not guided by any political interest.
Of course, political decision-makers have an interest that matters that are important to it, and which will probably end unfavourably for the government, would be considered as late as possible. Best of all, they would prefer such matters to be considered after a change in government.
The judge is there to resist this, and to push through cases that may be inconvenient but are very important from a human rights point of view. This is a very great responsibility for a judge on the ECHR.
The ECHR has accepted several cases from Poland for examination concerning changes to the justice system after 2015. Statements by the new president of the ECHR, judge Robert Spanó, indicate that the Tribunal may prioritise cases concerning the independence of the judiciary which have been brought from Poland, Turkey, and Iceland.
This is a matter of general jurisprudence policy. If the European Court is convinced that there is a category of cases that are important on a European scale, and that these cases should be dealt with faster, that suggests we will know the judgements more quickly than in a year or two.
And what about cases from Poland concerning the independence of the judiciary?
So far, the Polish cases concerning the independence of the judiciary have failed to move outside the stage of preliminary selection. These cases remained almost entirely invisible in the Strasbourg case-law. This situation gave rise to criticism. Over the last year or so this trend has changed – better late than never.
At the moment, the Polish government has been notified that several “independence” cases have been accepted for consideration on the merits. The Polish government has also been given a relatively short time to respond.
The ball is currently in the Strasbourg court. It just depends on the President of the Chamber, the national judge, and the rapporteur coming to an agreement as to how quickly these cases will be considered.
It seems that if there is a will, then such cases may be considered within one year (or, even, less) of the moment the complaint was communicated to the Polish government.
What does the issue of the independence of the judiciary look like in the ECHR’s previous rulings? Did the Tribunal adjudicate on matters such as the waiving of a judge’s immunity in a criminal case, as in the case of judges Beata Morawiec and Igor Tuleya?
The ECHR has hardly ever dealt with this type of case. It could be said that it was beyond the Court’s imagination that cases of violating judicial independence could have arisen in such a drastic way.
The first group of these issues has already clearly appeared in regard to Turkey, after the changes that President Erdoğan introduced as part of the state of emergency there three years ago.
I do not recall any case in Poland that would have involved an attempt to circumvent a judge’s immunity as well as a criminal case against a judge for the content of their rulings or the manner of their public announcement, as in the case of judge Tuleya.
On the other hand, the ECHR has resolved cases concerning the procedure of judicial appointments, the removal of the first president of the Supreme Court, as happened in Hungary in the case of Baka v. Hungary.
In almost a decade on the ECHR, I did not come across such an attack on rank-and-file judges. Not only in Poland, but in general, I did not come across any case that was presented in this way to the ECHR.
On 1 December, the judgement of the ECHR’s Grand Chamber in the case of Ástráðsson v. Iceland was announced, concerning the appointment of judges and the independence of the judiciary. This is a very important matter.
Generally speaking, the question was whether the significant shortcomings in the process of appointing several judges, later confirmed by the Icelandic Supreme Court, justify the statement that the judgements issued with these judges’ participation infringe Art. 6 par. 1 of the ECHR (the right to a fair trial), in particular regarding the requirement that the case be heard by a court established by law and which meets the characteristics of independence and impartiality. The ECHR’s Grand Chamber confirmed the position adopted in March 2019 by one of the chambers.
It was unequivocally and unanimously ruled that the seriousness of the irregularities in the nomination process, including their connection with the political role of the Minister of Justice and the balance of power in the parliament, justifies the statement that the impugned judgement was not issued by “a court established by law”.
At the same time, a three-stage test was formulated, that will be applicable to all future complaints arriving from any of the Convention country, where the procedure – legal or de facto – for appointing the judges adjudicating in a specific case gives rise to a serious challenge.
In other words, the Grand Chamber strongly emphasised the link between the shortcomings of the process of appointing judges and the inability of such court, composed of “irregularly appointed” judges, to meet the requirement to “be established by law”. In consequence, decisions taken with participation of “irregular judges” would violate Art. 6 par. 1 of the Convention. Thus (although this led to discrepancies among the judges of the Grand Chamber), it was deemed unnecessary to consider, by a separate ruling, whether these defects have also ruled out the impartiality and independence of such a court.
On the other hand, the Grand Chamber ‘dodged’ the decision as to whether – in the present case – the applicant could request the reopening of the proceedings. This left a gap on an important point, but it should be remembered that, in the context of Iceland, no one questioned the integrity and impartiality of the ‘irregular judge’ who had sat in Ástráðsson. By the way, it is worth noting that this judge was reappointed (in a regular procedure) in July 2020, and the Minister of Justice resigned after the ECHR’s first judgement in March 2019.
What consequences does the Ástráðsson judgement have for the Polish cases?
The Ástráðsson judgement may also be of significant importance for the Polish controversy regarding the current procedure for appointing judges.
First, very important was the finding that the significant irregularities in the judicial appointment procedure may lead to a violations of Art. 6 sec. 1 of the Convention in future cases decided with the participation of the affected judges. The Astradsson ruling can serve as a legal basis for raising such claims in proceedings before Polish courts of all levels. These claims can be based on the allegation that the composition of the court was defective and deprived the parties of a proper access to “a tribunal established by law”. No statutory provision in Polish law may prohibit courts from examination of such claims, as this would lead to another breach of Art. 6 of the Convention.
Secondly, we should recall that the ECHR relied on the findings of the Icelandic Supreme Court in determining both the occurrence of irregularities in the appointment process and the seriousness of those irregularities. The question arises as to how the position of the Polish Supreme Court should be perceived in this perspective, especially as expressed in the Resolution of the Three Chambers of 23 January 2020.
This may particularly affect the status of the rulings issued by the Disciplinary Chamber of the Supreme Court. The January Resolution was quite clear in disqualification of the Disciplinary Chamber.
Furthermore – even in the jurisprudence of the other “new” Chamber of the Supreme Court (the Chamber of Extraordinary Review and Public Matters). Various doubts have been raised in these matters.
Finally, it seems that neither the Polish courts, nor the ECtHR, can ignore the recent case-law of the CJEU on the changes in the judiciary in Poland. Although the CJEU focused on questions of independence and impartiality, it also confirmed several irregularities in the process of judicial appointments in Poland.
It seems that the Ástráðsson judgement may constitute a kind of starting point for decisions concerning those countries where the problem of judicial independence is more serious than in Iceland.
It cannot be ruled out that the Icelandic case before the ECHR will be a bit like the case of the Portuguese judges (ASJP) decided by the Court of Justice of the EU at the beginning of 2018:it will clear the path for further, more serious cases.
Turkey and Russia, which are the sources of many complaints to the ECHR, have been undermining the legitimacy of the Court and the validity of its judgements. Is the ECtHR as we know it in danger of falling apart over the next decade?
The fundamental principle of the Council of Europe is that it is an organisation which brings together states that respect certain values.
From the beginning of the transformation processes on the eastern side of the former Iron Curtain, questions have been raised as to whether all the states currently in the Council of Europe and in the Convention system are ready to do so. Such questions have been raised in respect to Russia, among others.
When I was on the ECHR in the years 2002-2012, the prevailing belief was that the presence of these countries in the Council of Europe was the only way to civilise the protection of human rights more quickly in those countries that have a problem with it.
Today we see that this has not necessarily worked; or rather, in some countries it has, but in others the situation has worsened. Authoritarian systems and systems which are far removed from European democratic requirements are not only persisting, but actually flourishing.
But what follows from this? Probably only that at some point it will have to be admitted that some countries simply do not fit into the circle of the Council of Europe. But that doesn’t mean there is a need to change the system.
This could mean that Europe is smaller than some people might have dreamed.
Or rather: perhaps Europe is smaller than it seems to some of those dreamers who prefer to subjugate the facts to their own visions and wishful thinking.
We are talking about Europe, and because of your lectures, you have daily access to the American perspective, including the American legal and academic elite’s perspectives on the situation in Poland. What do they think?
Let’s be honest, the matters of the rule of law in Poland trigger much more emotions and interest, be it among researchers & specialists or the judiciary community, in Europe than in the United States.
Unfortunately, at the moment our country’s reputation is so bad that Poland is associated with various kinds of violations of the standards that have become generally accepted. This is due, to a great extent, to the political authorities’ attacks on the Constitutional Tribunal and the independent judiciary. Hardly anyone, especially in the States, knows how it really works and what it really looks like.
But the categorisation mechanism is working. Poland and Hungary are now listed as two examples of stalled or degraded transformation.
Some countries were spoken of with no illusions from the very beginning, and no one was surprised or surprised that things there were as they were. Poland and Hungary, on the other hand, have always been regarded as ‘good students’. In many parts of the world, there was an established opinion – also widely shared in the United States – that these countries had succeeded because they rebuilt an independent judiciary, successfully reformed their economies, created conditions for the development of civil society, and were able to hold regular, democratic elections.
Now it turned out that this is not the case. In fact, only the economy has remained, although one doesn’t know for how long. This is disappointing. Usually, if you have warm feelings for someone and then they fail, you feel disappointment, a lack of sympathy, you are more likely to criticise. It is a pity that it worked out this way, because for a long time, Poland and Hungary – but especially Poland – was really treated as a country that had been very successful.