Not Just a Simple Civil Servant: The Right of Access to a Court of Judges in the Recent Case Law of the ECtHR

Leloup, Mathieu

doi:10.1163/26663236-bja10055

Cited by 4 publications

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“…7 Consequently, the law was altered, transferring the power to elect NCJ judges to the Sejm and ending the current Council members' terms. 8 This reform, although upheld by another ruling of the Constitutional Tribunal issued in an unlawful composition, 9 sparked significant controversy 10 and its consistency with the Polish Consti-tution and the European standards continues to be challenged by Polish courts, 11 the European Court of Justice 12 and the European Court of Human Rights. 13 Another significant change was in the judges' disciplinary responsibility system.…”

Section: The Legal Background To Both Casesmentioning

confidence: 99%

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

Szwed

2024

ERA Forum

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This article examines two rulings of the European Court of Human Rights on the rights of independent Polish judges in Juszczyszyn v. Poland and Tuleya v. Poland, focusing on two key aspects. First, it addresses the Court’s finding that the Polish authorities aimed to undermine judicial independence and deter the applicants from questioning the Government’s controversial judicial reforms. Secondly, it explores the potential evolution of the case law of the European Court of Human Rights regarding recognising the subjective right of judges under Article 6 of the European Convention on Human Rights to have their independence protected and respected by the State. The article also discusses problems concerning implementation of the two judgments.

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Section: The Legal Background To Both Casesmentioning

confidence: 99%

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

Szwed

2024

ERA Forum

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

Szwed

2023

Hague J Rule Law

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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.

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Purging the Judiciary After a Transition: Between a Rock and a Hard Place

Šipulová,

Kosař

2024

Hague J Rule Law

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Judges play a key role in the implementation of transitional justice mechanisms. Yet, less attention has been paid so far to the question of how to address their collaboration with non-democratic regimes. In theory, judges can be subjected to virtually all transitional justice mechanisms ranging from criminal prosecution and lustration to truth-seeking, or even amnesties. However, we show in a case study of Czechia that these mechanisms are not well equipped to address the complicity of judges in past crimes for three reasons: (1) judges usually play different roles in past crimes from political elites, (2) the principles of the separation of powers and judicial independence preclude the easy replacement of judges, and (3) pragmatic exigencies, such as the shortage of lawyers who are not tainted by cooperation with the previous regime, further complicate the renewal of the bench. Nevertheless, we argue that the lack of recognition of the role judges have played in non-democratic regimes is dangerous, as it may negatively affect public confidence in the judiciary and taint its legitimacy. Examples from Hungary, Poland and Romania, moreover, show that populist leaders are tempted to abuse the transitional justice rhetoric use the failure to deal with the past of judges as a justification for their court-curbing practices. Post-transition purges are therefore stuck between a rock (interfering in judicial independence and practical exigencies) and a hard place (mental dependence of the judiciary on the previous regime, low public trust in courts). When the democratic opposition defeats the populist leader, such as in Poland in 2023, it unfortunately faces the same dilemma. Thus, the Czech way of dealing with the past within the judiciary in transition from communism to democracy (transition 1.0) provides important insights also for today’s undoing of populist judicial reforms and transition from authoritarian populism to democracy (transition 2.0).

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Not Just a Simple Civil Servant: The Right of Access to a Court of Judges in the Recent Case Law of the ECtHR

Cited by 4 publications

References 0 publications

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

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

Purging the Judiciary After a Transition: Between a Rock and a Hard Place

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