Fixing the Problem of Unlawfully Appointed Judges in Poland in the Light of the ECHR

Abstract

This article seeks to answer the question of how to deal with the problem of unlawful judicial appointments in Poland in a way consistent with the European Convention on Human Rights (ECHR). According to the Polish Constitution, appointments of judges are made upon the request of the National Council of the Judiciary (NCJ). After controversial reforms in 2017, this body lost its independence from politicians. In the four judgments issued so far, the European Court of Human Rights (ECtHR) ruled that appointments of Supreme Court judges made upon the request of politicised NCJ were burdened with manifest violation of domestic law and, as a result, panels of courts composed of persons appointed in this way were not ‘tribunal established by law’. Arguably, this conclusion may be extended to other judges appointed in the same way. The question remains, however, what to do with persons appointed with violation of law; in particular, whether such persons can simply be removed from the judiciary. This article argues that even though the domestic authorities have some discretion with regards to choosing the proper measures to fix the problem of unlawfully appointed judges, this is limited by the need to comply with the standards stemming from the ECHR. In particular, it is important to respect unlawfully appointed persons’ right to court. This means that instead of removing all of them without any judicial review, a more individualised approach would be preferable.