EHRM, 22-07-2021, nr. 43447/19

On 25 September 2018 the Supreme Administrative Court (case no. II GW 22/18) stayed the execution of the NCJ resolution of 24 August 2018 (no. 318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D.

On 27 September 2018 the Supreme Administrative Court (case no. II GW 27/18) stayed the execution of the NCJ resolution of 28 August 2018 (no. 330/2018; see paragraph 33 above) recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and not recommending other candidates, including the appellant I.J. The court noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20 September 2018 although it had been obliged to do so under the law.

On 1 October 2018 Mr A.B. lodged an appeal against the NCJ's resolution of 28 August 2019 (no. 330/2018; see paragraph 33 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the execution of the resolution.

On 8 October 2018 the Supreme Administrative Court (case no. II GW 31/18) stayed the execution of the impugned resolution. The court noted that A.B.'s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court.

On 26 June 2019 the Supreme Administrative Court made a request for a preliminary ruling to the Court of Justice of the European Union (‘CJEU’) and the latter gave judgment on 2 March 2021 (see paragraphs 165–167 below).

On 6 May 2021 the Supreme Administrative Court gave judgment (case no. II GOK 2/18). It quashed the impugned NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. As regards the part of the resolution concerning the refusal to recommend certain other candidates it quashed it in so far as it concerned the appellant, A.B. (see also paragraphs 122–125 below).

In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 162–167 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph 123 below).

The court also noted that it did not appear that the NCJ — a body constitutionally responsible for safeguarding the independence of judges and courts — had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 169 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1 October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates.

Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 71–86 and 89–105 below), that the President's announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister.

The applicant submitted that her case had not been heard by an impartial and independent ‘tribunal established by law’ and that this constituted a breach of Article 6 § 1 of the Convention. Firstly, the judges who had dealt with her case had been selected on a political basis and had not been independent or impartial. Secondly, the entire Disciplinary Chamber of the Supreme Court was of a political character, as shown by its activity against the judges who had opposed the reforms of the judicial system.

The applicant stated that, in accordance with the Court's case-law, in particular the judgment in Guðmundur Andri Ástráðsson ([GC], no. 26374/18, 1 December 2020), a court must always be ‘established by law’. In the light of this requirement the Court was called upon to examine whether the domestic law had been complied with. In the present case the long series of irregularities which had resulted in the conclusion that the panel of judges of the Disciplinary Chamber which examined her case had not been a ‘tribunal established by law’ had started with the structural changes to the NCJ. Contrary to the Constitution, which held that Sejm should only select four members of the NCJ, the 2017 Amending Act entrusted Sejm with the election of fifteen additional members, from among judges, who had so far been elected by their peers. As a result, the legislative and executive branches of power had granted themselves a quasi-monopoly to appoint the members of the NCJ in that they were to appoint twenty-three out of twenty-five members. This amounted to a breach of the Constitutional principle of separation of powers and ran counter to the previous case-law of the Constitutional Court from 2007. As a result, the NCJ had lost the ability to contribute to making the judicial appointment process objective. The applicant drew the Court's attention to other cases pending before the Court concerning the termination of the terms of office of previous members of the NCJ (Grzėda v. Poland, no. 43572/18) and the Disciplinary Chamber's rulings against judges who had criticised the ‘reforms of the judiciary’ (Tuleya v. Poland, no. 21181/19). These cases showed that the activity of the Disciplinary Chamber was strongly politicised.

The process of appointment of Supreme Court judges had not been transparent or independent, and was in breach of domestic law, including the Constitution, in that the President had announced vacancies at the Supreme Court without the countersignature of the Prime Minister contrary to Article 144 § 2 of the Constitution. The selection process carried out by the NCJ had been superficial and did not offer guarantees of the independence or impartiality of the candidates selected. For instance, only 216 candidates had applied for forty-four announced positions. The NCJ had carried out a short, chaotic, and superficial examination of applications and individual interviews had taken a dozen minutes per candidate. As a result, only those candidates who had been supported by the authorities, and connected to them, had been selected.

The applicant pointed to the particular status of the Disciplinary Chamber as a newly established chamber of the Supreme Court. The real objective behind its creation had been to increase the total number of judges sitting in the Supreme Court from 83 to 120 and to suppress any judicial opposition to radical and far-reaching changes in the Polish legal system implemented by the current government. The Disciplinary Chamber had been granted a budget which was separate from that of the other chambers and had an independent Statute. The applicant further stated that the CJEU had given several judgments and, in particular, an interim ruling of 8 April 2020 ordering the suspension of relevant provisions governing the activity of the Disciplinary Chamber in the disciplinary proceedings concerning judges. Pursuant to the CJEU judgment of 19 November 2019, the Polish Supreme Court had delivered the judgment of 5 December 2019 and the resolution of the joined Chambers of 23 January 2020. The conclusions of both rulings of the Supreme Court were of great relevance to the case at hand.

Lastly, the applicant argued that comparisons between single elements of constitutional and legal systems in Europe, as relied on by the Government to justify the choices of the Polish legislator, might be misleading. While every member State could apply different procedures, a broader context should nevertheless be taken into consideration to assess the fulfilment of the requirement of independence and impartiality of a court, established by law, as guaranteed by the Convention. Notwithstanding the margin of appreciation afforded to the States in applying and implementing the Convention, no State should have a right to violate its Constitution for political benefit. The applicant concluded that the domestic law had been breached in the instant case and stressed the importance to the present case of the Court's case-law on the principles of the rule of law and the separation of powers.

The Government submitted that the court which dealt with the applicant's case had been a ‘tribunal established by law’ as required by Article 6 § 1 of the Convention. In particular, there had been no manifest breach of domestic law in the process of appointment of judges to the Supreme Court. The Government considered that in the light of the Grand Chamber judgment in Guðmundur Andri Ástráðsson (cited above, §§ 216 and 247) the impugned violations of the domestic law must be manifest’, i.e., must be of a fundamental nature and must form an integral part of the judges' appointment process.

Under the second element of the test developed in the Guðmundur Andri Ástráðsson judgment, the key question was whether there was a real risk that the other organs of government, in particular the executive, had exercised undue discretion undermining the integrity of the appointment process to an extent not envisaged by the domestic rules in force at the material time. However, in the present case, there had been no violation of the ability of the judiciary to perform their duties free of undue interference and thereby to preserve the rule of law and the separation of powers. According to the Government, it was thus unnecessary to carry out the third step of the test as set out in the Guðmundur Andri Ástráðsson judgment (cited above) related to the examination of whether the violations had effectively been reviewed.

They stressed that all judges in Poland, including those sitting in the Disciplinary Chamber of the Supreme Court, were appointed by the President, upon a proposal of the NCJ, for an indefinite period of time. The President was not bound by the recommendation of the NCJ in that he could decide not to appoint a person indicated by it. However, the President could not appoint a person who was not recommended by the NCJ. The mere fact that the judges were appointed by an executive body, the President, did not give rise to a relationship of subordination of the former to the latter or to doubts as to the former's impartiality if once appointed they were free from influence or pressure when carrying out their role. In that respect the Government pointed to the judgment of the CJEU of 19 November 2019, which had confirmed this principle.

The Government referred to systems of judicial appointments in Europe and concluded that the Polish approach did not differ from other countries. The fact that the judges were appointed by the executive seemed to be a rule in European States. They considered that in Europe the participation of representatives of judicial authorities in the procedure for appointment of judges, particularly those of the Supreme Court, was limited or not foreseen at all. In Poland, however, the judiciary participated in the procedure to a rather broad extent. The risk of excessive influence of the executive on the process of appointment of judges had thus been reduced.

Furthermore, the Convention did not imply an obligation to apply a specific mode of appointment of judges to the highest courts of the Contracting States. The Convention did not require the appointment of judicial councils or their participation in the procedure for appointment of judges. Moreover, the Convention did not require the States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interactions. A certain interaction between the three branches of government was not only inevitable but also necessary to the extent that the respective powers did not unduly encroach upon one another's functions and competencies. The Contracting States should thus be ‘afforded a certain margin of appreciation in connection [with] these issues since the domestic authorities [were] in principle better placed [than] the Court to assess how the interests of justice and the rule of law — with all its conflicting components — would be best served’.

The Government emphasised that amendments made to the method of electing members of the NCJ and terminations of service established prior to this amendment had been proportionate, since they were aimed at adjusting the election to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in judgment no. K 5/17. The amendments had fallen within the ambit of the legislator's margin of appreciation, limited only by the constitutional provisions pertaining to the NCJ. As a matter of fact, Article 187 § 1 (2) of the Constitution provided for an election of the judicial members of the NCJ from among judges. The Constitution did not determine, however, who would elect these judges or how they would be elected. Consequently, it could be seen from the relevant provisions of the Constitution who could be elected as a judicial NCJ member, yet there was no mention of any modalities of the election of judges to the NCJ. In accordance with Article 187 § 4 of the Constitution these modalities were to be regulated by statute. Elections by representatives of the judiciary had not been annulled, yet the position that assemblies of judges were the only competent electoral bodies was unsubstantiated on the ground of the Constitution. Whereas Article 187 § 1 (3) of the Constitution clearly stipulated that the MPs sitting on the NCJ be elected by Sejm and that senators sitting on it be elected by the Senate, the Constitution did not contain any precise provision with reference to the judicial members of the NCJ.

According to the Government, this meant that the Constitution did not provide for any particular way of electing judges to the NCJ. Such a manner of regulation of this matter had been chosen by the constitutional lawmaker consciously, with a view to setting it out at the level of a statute. It was therefore legitimate that this question should be regulated within the limits of the legislator's margin of appreciation. In this respect, the Constitution laid down a certain minimum number of fundamental safeguards. They also noted that after the amendments had entered into force, the NCJ would be elected by Sejm by a qualified majority of three-fifths of the votes, in the presence of at least half of those entitled to vote, which made this election the result of a cross-party agreement between various groups represented in Sejm and thus ensured high democratic legitimacy for the members of that body. The high qualified majority required for the election of the members of the NCJ who were judges distinguished the way in which they were elected from members who were MPs. In the latter case, the election was by a simple majority.

The Government stressed that although the Court could examine both the formal aspect of the existence of law and the issues related to the process of appointment of judges within the domestic legal system, it had limited power to interpret domestic law. Moreover, the Court was limited by the principle of subsidiarity, which allowed the High Contracting States to decide which measures to take to ensure the rights and freedoms of individuals and to implement the Convention guarantees.

According to the Government, the reform of the NCJ and Supreme Court had been carried out in accordance with the Constitution and national legislation. In particular, the changes to the method of electing the judicial members of the NCJ sought to implement the Constitutional Court's judgment of 20 June 2017 (K 5/17); see paragraph 109 above), which had held that both the individual nature of the term of office of the NCJ's judicial members and the manner of their appointment were unconstitutional. The Constitutional Court also found that the previous system had led to a differentiation in the voting power between judges of different levels of jurisdiction, which had meant that the votes cast had not been equal but had carried different weight depending on the court's level. The Government disagreed with the applicant's allegation that the new members of the NCJ had been associated with the authorities and maintained that the new system had strengthened the transparency of the election of the members of the NCJ and had enabled a public debate on the nominated candidates. The new system allowing the candidates to be presented by a group of citizens or other judges ensured greater representativeness of the NCJ and better reflected the structure of the Polish judiciary.

The Government reiterated that even in its judgment of 19 November 2019 (nos. C-585/18, C-624/18, C-625/18) the CJEU had not challenged the legitimacy of the NCJ or the Disciplinary Chamber of the Supreme Court. It had merely pointed out that the national court could assess, in an individual case, whether the national authority — competent under national law — was an independent and impartial tribunal within the meaning of Article 47 of the Charter of Fundamental Rights. Thereby, the CJEU had confirmed that it respected the areas reserved for the member States. Although it observed in its ruling that any political factor involved in the appointment of judges might give rise to doubts and trigger an assessment of whether the court was an independent court, it also pointed out that it was only a set of factors that could lead to a final conclusion ruling out the existence of the attributes of independence and impartiality. In this context, it was also worth mentioning the CJEU judgment of 24 June 2019 (no. C-619/18), concerning the independence of the Supreme Court, in which the CJEU had emphasised the principle of the irremovability of judges. Therefore, the interpretation of the judgment of 19 November 2019, leading to the conclusion that it was permissible to deprive judges and the competent court of their right to adjudicate, was unacceptable. Such an interpretation would be contrary to the fundamental principle of the European Union — the principle of the irremovability of judges.

The Government stressed that there had been no manifest violation of domestic law in the process of the appointment of judges to the Supreme Court. Any doubts regarding the Disciplinary Chamber of the Supreme Court arising in view of the Supreme Court's resolution of 23 January 2020 had been removed by the judgment of the Constitutional Court of 20 April 2020 (U 2/20; see paragraphs 115–117 above).

Finally, according to the Government, the President had not breached the Constitution when announcing vacancies at the Supreme Court as such decision was one of his constitutional prerogatives and had not necessitated the countersignature of the Prime Minister.

The Commissioner for Human Rights of the Republic of Poland (‘the Commissioner’), stressed that the case disclosed systemic and intentional irregularities. It was of paramount importance to the domestic judicial system since it concerned doubts relating to the composition of the top judicial body, which exercised a supervisory function over all ordinary courts in Poland. The rulings of the Supreme Court were not subject to review by another judicial body which, subject to meeting Convention standards, could resolve doubts and remedy deficiencies.

The Commissioner submitted that persons appointed to the Supreme Court since 2018 had been appointed in flagrant violation of domestic law. The deficiencies in the appointment of the Supreme Court judges since 2018 were due in particular to the participation of the NCJ — a body created and appointed in a manner manifestly incompatible with the national law. In order to assess whether the NCJ met the necessary requirements, the Commissioner looked at the following elements:

With respect to point (a) above, the Commissioner stressed that the election of fifteen judges, previously elected by other judges, had been entrusted to Sejm contrary to their constitutional role and the previous case-law of the Constitutional Court (judgment of 18 July 2007, K 25/07, see paragraph 107 above). In consequence, the legislative and executive branches now elected twenty-three out of twenty-five members of the NCJ, which granted them excessive influence over the process of appointments to the Supreme Court. At the same time the constitutionally protected four-year term of office of members of the NCJ had been prematurely terminated. The Commissioner also pointed to a general boycott of the elections to the new NCJ by the judges as a result of which out of a total of 10,000 Polish judges eligible, only eighteen candidates had applied for fifteen positions. Moreover, the transparency of the process had been heavily compromised by the authorities as they had refused to disclose the lists of support for the candidates in spite of the binding ruling of the Supreme Administrative Court ordering their disclosure (judgment of 28/06/2019, I OSK 5282/18).

The Commissioner further submitted that the members of the NCJ included persons with strong links to the executive: judges seconded to the Ministry of Justice and those recently appointed by the Minister of Justice to the posts of president and vice-president of the courts. The Supreme Court in its resolution of 23 January 2020 had established that Judge M.N. had been elected to the NCJ in breach of the 2017 Amending Act as he had not obtained the required number of signatures to support his candidature. The NCJ had not intervened in cases of judges prosecuted in politically motivated disciplinary or criminal proceedings. The NCJ had taken actions aimed at legitimising its own status by applying to the Constitutional Court to confirm the constitutionality of the 2017 Amending Act. As a result, the Commissioner concluded that the NCJ no longer fulfilled its constitutional role as guardian of judicial independence.

The process of appointment of judges to the Supreme Court was also flawed and amounted to a flagrant breach of the regulations and principles of domestic law and European standards. The Commissioner took the view that the act announcing the vacancies at the Supreme Court issued by the President had not been valid as it had not been countersigned by the Prime Minister, as required by the Constitution. The competition for posts of judge had been boycotted by the whole legal profession in Poland as only 216 candidates had applied for forty-four positions. The NCJ had carried out a rudimentary selection process based mostly on the material presented by the candidates themselves and spending a dozen minutes per interviewed candidate. As a result, the NCJ had recommended only those candidates who were associated with the authorities and had their support. Moreover, the resolutions of the NCJ recommending some candidates for posts at the Supreme Court had been appealed against by rejected candidates. Although the Supreme Administrative Court had suspended the execution of a number of such resolutions, the President had gone ahead and had given letters of appointment to the candidates recommended by the NCJ and they had accepted them. The right to appeal against the NCJ resolutions, allowed at the beginning of the competition, had been entirely excluded by an amendment that had entered into force during the process of selection of the Supreme Court judges.

The Commissioner concluded that the irregularities disclosed above should be assessed in the light of a cumulative formula and should lead to a conclusion that the Supreme Court had not been properly established. The challenges against the new members of the NCJ and newly appointed judges of the Supreme Court showed that the infringements had been committed intentionally in order to ensure that the political authorities had a dominant influence on the appointments of judges.

Lastly, the Commissioner submitted that the principle of legal certainty and the guarantee of irremovability of judges could not reward the intentional and systemic violation of the law by national authorities. The systemic dimension of the changes introduced in Polish law encompassed the entire justice system; for instance the Constitutional Court no longer fulfilled its role and was used to legitimise actions that were incompatible with the Constitution. The Commissioner proposed to differentiate the consequences of the refusal to recognise the status of unlawfully appointed Supreme Court judges in order to protect the legal security of private parties to the relevant proceedings. At the same time the Commissioner considered that no protection should be afforded to the bodies unlawfully established or to persons lacking the attributes of a judge.

The International Commission of Jurists (‘the ICJ’) stressed that judicial councils played an important role in the self-governance, independence, and impartiality of the judiciary in many European countries. An independent judiciary, operating within the system that respected the separation of powers was an essential element of the rule of law and a necessary condition for effective protection of human rights. The ICJ referred to the Magna Carta of Judges which clearly stated that councils for the judiciary had to be independent of legislative and executive bodies and composed in a substantial majority of judges elected by their peers. Those principles had been reiterated by other international authorities, for instance in the Universal Charter of the Judge and by the UN Special Rapporteur on the Independence of judges and lawyers, in his annual report of 2 May 2018. The international standards on the independence of the judiciary enshrined the principle that the political powers — legislative and executive — should not be responsible for, or otherwise interfere with, the appointment, functioning, or removal of members of judicial councils. Moreover, the substantive conditions and detailed procedural rules governing the appointment decisions should not give rise to doubts as to the imperviousness of the judges concerned and their neutrality, as reiterated by the CJEU in the judgment of 19 November 2019 (see paragraph 164 above).

The intervener submitted that since 2015 the Government of Poland had adopted and implemented a series of legislative and policy measures that had severely undermined the independence of the judiciary. The authorities had politicised the process of appointments to the NCJ following the 2017 Amending Act, which had given Parliament the power to appoint fifteen judicial members although the Constitution expressly gave Parliament the power to appoint only six lay members. Six judges out of fifteen appointed to the NCJ by Parliament on 5 March 2018 had been in the past six months appointed as president or vice-president of a court by the Minister of Justice. Moreover, the terms of office of all former members of the NCJ had been terminated, and this had raised concerns about compliance with the Constitution and had further impaired the NCJ's independence from legislative and executive authorities.

The ICJ drew the Court's attention to an amendment to the Act on Organisation of Ordinary Courts, which had also entered into force in August 2017. It had allowed the Minister of Justice to dismiss and appoint the presidents and vice presidents of ordinary courts. Within the first six months of its application the Minister of Justice had dismissed and re-appointed over 130 presidents or vice-presidents of courts in Poland, which amounted to replacing 18% of posts of this type in the entire country.

In respect of the Disciplinary Chamber of the Supreme Court, the intervener submitted that it was composed exclusively of judges elected upon the recommendation of the new NCJ. The President of the Disciplinary Chamber had been appointed by the President of Poland in February 2019. The new Chamber was empowered to adjudicate in disciplinary proceedings against judges, including the power to reopen any closed disciplinary proceedings. These proceedings had to be initiated by the NCJ and could result in removal from the office of judge.

The intervener concluded that a court might not be considered independent if ‘the body that had appointed its members lacked guarantees of independence from the executive and legislative powers’. It followed that a ‘court composed by judges appointed by a non-independent body or in [a] non-independent procedure [would] not be capable of constituting an independent and impartial tribunal’ as required by the Convention.

In the present case the alleged violation of the right to a ‘tribunal established by law’ concerns the Disciplinary Chamber of the Supreme Court, constituted following the recent reorganisation of the Polish judicial system. In particular, the applicant alleged that the judges of that Chamber were appointed by the President of Poland upon the NCJ's recommendation in manifest breach of the domestic law and the principles of the rule of law, separation of powers and independence of the judiciary.

Accordingly, the Court will examine whether the fact that the applicant's case was heard by the Disciplinary Chamber of the Supreme Court — a court to which all the sitting judges were appointed in the impugned procedure — gave rise to a violation of the applicant's right to a ‘tribunal established by law’. It will do so in the light of the three-step test formulated by the Court in the case of Guðmundur Andri Ástráðsson (ibid., § 243).

Under the first element of the test the Court has to determine whether the relevant domestic law was contravened in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court.

The parties disagreed on that issue. In support of their arguments they relied on contradictory views expressed, on the one hand, by the Supreme Court and, on the other, by the Constitutional Court in their respective rulings given in 2017–2020.

The applicant heavily relied on the Supreme Court's conclusions in the judgment of 5 December 2019 and its interpretative resolution of 23 January 2020, stressing that that court had clearly established a fundamental breach of domestic and international law and the principles of the rule of law, separation of powers and independence of the judiciary in the process of appointment of judges to the Disciplinary Chamber.

In particular, the applicant maintained that the domestic law had been breached, first, as a result of the change in the manner of electing judicial members of the NCJ under the 2017 Amending Act, which had stripped this body of independence from the legislative and executive powers. As a result, the NCJ's involvement in the selection of candidates to sit as judges of the Supreme Court and its recommendations of selected persons presented to the President had compromised the procedure for judicial appointments. She also asserted that, as the Supreme Court had held, the domestic law had been breached for a second time by the President of Poland on account of his announcement of vacant positions in the Supreme Court without the Prime Minister's countersignature, thus rendering invalid ab initio his appointment of the candidates previously presented by the NCJ (see paragraphs 188–189 above).

The Government, for their part, asserted that the reform of the NCJ and the Supreme Court had been carried out in accordance with the Constitution and national legislation. They stressed that the modification of the legal provisions governing the organisation of the NCJ, granting Sejm the power to elect the NCJ's judicial members, had been introduced by the 2017 Amending Act in order to implement the Constitutional Court's judgment of 20 June 2017 (K 5/17; see paragraphs 108–111 above), holding that both the individual character of the term of office of the NCJ's judicial members and the manner of their election under the 2011 Act on the NCJ were unconstitutional.

Furthermore, in their view, the President's announcement of the vacant positions at the Supreme Court was not of such a nature as to require a countersignature by the Prime Minister for it to be valid (see paragraph 203 above).

As regards the Supreme Court's resolution of 23 January 2020, the Government took the view that its findings and conclusions could not be taken into account in the Court's assessment because, in their words, it had been ‘removed’ by the Constitutional Court's judgment of 20 April 2020 (U 2/20; see paragraphs 115–117 and 202 above), holding that the resolution was inconsistent with several constitutional provisions.

Being confronted with two fundamentally opposite views of the Polish highest courts as to whether or not there was a manifest breach of the domestic law, the Court would emphasise, as it has done on many previous occasions, that it will normally cede to the national courts' interpretation of whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law, unless the national court's findings can be regarded as arbitrary or manifestly unreasonable (see Guðmundur Andri Ástráðsson, cited above, § 244, with further references to the Court's case-law.

However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its own assessment for that of the national courts. Accordingly, while the national courts have discretion in determining how to strike the relevant balance, they are nevertheless required to comply with their obligations deriving from the Convention when they are undertaking that balancing exercise (ibid. § 251, with further references to the Court's case-law).

The Court's task in the present case is therefore not to resolve the existing conflict of opinions as to the application and interpretation of the domestic law or to substitute itself for the national courts in their assessment of the applicable provisions, but to review, in the light of the above principles, whether the Polish courts in their respective rulings struck the requisite balance between the various interests at stake and whether, in carrying out that exercise and reaching their conclusions, they paid due regard to, and respect for, the Convention standards required of a ‘tribunal established by law’.

As regards the domestic legal provisions applicable to the judicial appointment procedure, it is common ground that they are set out in the Constitution, the 2011 Act on the NCJ as amended by 2017 Amending Act, and the 2017 Act on the Supreme Court. Pursuant to these provisions read as a whole, judges are appointed to all levels and types of courts, including the Supreme Court, by the President of Poland following a recommendation of the NCJ — a recommendation which the NCJ issues after a competitive selection procedure in which it evaluates and nominates the candidates. The NCJ's proposal of candidates to the President of Poland is a condition sine qua non for any judicial appointment (see Article 179 of the Constitution at paragraph 59 above). The President may not appoint a judge who has not been so recommended but, at the same time, as submitted by the Government, he is free not to appoint a recommended judge.

The NCJ itself is a constitutional body whose main role, in accordance with Article 186 § 1 of the Constitution, is to safeguard the independence of courts and judges. The composition of the NCJ is determined by Article 187 § 1 of the Constitution, which provides that the NCJ is composed as follows:

Pursuant to Article 187 § 4 of the Constitution, the organisational structure, scope of activity and the NCJ's working procedures, as well as the manner of choosing its members, are specified by statute (see paragraph 59 above).

As noted above, the applicant's primary argument is that the first manifest breach of the domestic law originated in the 2017 Amending Act, which had changed the manner of electing the fifteen judicial members of the NCJ, who were henceforth to be elected by Sejm and not, as previously, by their peers, and which had resulted in that body no longer being independent from the legislative and executive powers.

By way of a preliminary remark, the Court would observe that the impugned law is part and parcel of the legislation on the reorganisation of the Polish judiciary initiated by the government in 2017 and, as such, must be seen not in isolation but in the context of coordinated amendments to Polish law effected for that purpose and having regard to the fact that those amendments and their impact on the Polish judicial system have drawn the attention and prompted the concern of numerous international organisations and bodies, and have become the subject of several sets of proceedings before the CJEU (see also paragraphs 177–178 above).

According to the Government, the 2017 Amending Act was introduced in order to implement the Constitutional Court's judgment of 20 June 2017, which had found that the provisions governing the procedure for electing members of the NCJ from among the judges of the ordinary courts and administrative courts were incompatible with Article 187 § 1 (2) in conjunction with Article 2 of the Constitution, the latter provision enshrining the rule of law principle (see paragraphs 109 and 197 above).

Under the previous regulation, the judicial members of the NCJ were elected by judges, a rule which — until the said judgment of 20 June 2017 — had been firmly established in the Polish legal order and confirmed in unequivocal terms by the Constitutional Court in its judgment of 18 July 2007 (see paragraph 107 above). The Government, in line with the Constitutional Court's position in the June 2017 judgment, argued that the previous model had been replaced by a ‘more democratic’ one and that that change had been prompted by the need to remove the hitherto existing — in their view unjustified — difference of treatment with regard to the election of judges at various court levels, which had discriminated against judges sitting in lower courts as it had not provided them with equal opportunities of standing for election (see paragraph 200 above).

The Court accepts that the aim pursued and the general reasons given for the new model of election of judicial members to the NCJ could prima facie be considered legitimate. However, this justification alone cannot be seen as sufficient to substantiate the Constitutional Court's complete reversal of its previous case-law without being based, as emphasised above, on a duly conducted assessment, weighing in the balance the competing interests at stake, as required under the Convention (see paragraph 230 above).

In this connection, the Court observes that, apart from its statement of dissent that ‘the Constitutional Court in its current composition does not agree with the [Constitutional Court's] position in the judgment [of 18 July 2007] that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges’, the Constitutional Court did not engage substantively with legal arguments contained in the earlier ruling. While it is true that the judgment was given after the composition of the Constitutional Court had changed following the December 2015 election of five new judges (for factual details see the information on the election process in Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 8–35, 7 May 2021 (not yet final); see also paragraph 112 above), this by itself could not serve as a ground for creating a new and divergent interpretation of the Constitution. Nor should it be an obstacle for the Constitutional Court judges to give convincing reasons — or explain specific legal considerations — for their departure from the final judgment, universally binding in its application, given by their predecessors, a judgment which had been in force for the previous ten years (see also Article 190 of the Polish Constitution cited in paragraph 59 above).

The purported aim to be achieved by means of the new interpretation of the Constitution, radically changing the existing election model, was to ensure that all the judges would have equal opportunities to stand for election to the NCJ. However, the Court has been unable to detect any attempt on the part of the Constitutional Court to explain in its judgment why and how the new election model would better serve the interests of the judiciary and equal opportunities or whether, and if so how, it would impact upon the NCJ's primary constitutional obligation of safeguarding the independence of courts and judges, as laid down in Article 186 § 1 of the Constitution. Likewise, in the Constitutional Court's assessment no consideration appears to have been given to the Convention case-law or the fundamental Convention principles of the rule of law, separation of powers and independence of the judiciary, principles which are also enshrined in the Polish Constitution and were obviously relevant in the context of the new interpretation.

Furthermore, as demonstrated by subsequent developments, both at domestic and international level, the Constitutional Court appears to be isolated in its perception and assessment of the necessity and legitimacy of the change in the procedure for election of the judicial members of the NCJ.

To begin with, already at the early stage, the bill, which was to become the 2017 Amending Act, proposing that the judicial members of the NCJ be elected by Sejm, raised serious concerns as to its compliance with the European standards and its impact on the independence of this body and the Polish judiciary as a whole.

On 11 October 2017, PACE, in its resolution entitled ‘New threats to the rule of law in the Council of Europe States’, called on the Polish authorities to refrain from amending the 2011 Act on the NCJ in a manner that would modify the procedure for election of its judicial members and would establish political control over that procedure (see paragraph 136 above).

The OSCE/ODIHR and the Venice Commission in their opinions issued, respectively, on 5 May 2017 and 11 December 2017 spoke with one voice when assessing the consequences of the contemplated amendments.

The OSCE/ODIHR said that ‘the proposed amendments raise[d] serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of [the] judiciary’; that ‘the changes proposed … could also affect the public trust in the judiciary, as well as its legitimacy and credibility’ and that ‘if adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law’. It recommended that the proposed amending law ‘be reconsidered in its entirety and that the legal drafters … not pursue its adoption’ (see paragraph 128 above).

The Venice Commission, for its part, stated that while the exact composition of judicial councils varied, it was widely accepted — as regards the States which had such a council — that at least half of the council members should be judges elected by their peers. It further emphasised that ‘the 2017 Amending Act was at odds with the European standards since the fifteen judicial members were not elected by their peers, but received their mandates from Parliament’. It also took the view that the proposed reform would lead to the NCJ being dominated by political nominees, ‘[g]iven that six other members of the NCJ [were] parliamentarians, and four others ex officio members or appointed by the President of the Republic’. It recommended that judicial members should be elected by their peers, as in the 2011 Act on the NCJ (see paragraph 140 above).

The CCJE, in its opinion of 12 October 2017, shared the above views, referring to a ‘fundamental concern of transferring the power to appoint members of the [NCJ] from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure’. It considered that the judicial members of the NCJ should continue to be elected by the judiciary and that the proposed amendment was a ‘major step back as regards judicial independence in Poland’, adding that it was ‘deeply concerned’ by the implications of the amendment for the principles of the separation of powers and the independence of the judiciary (see paragraph 144 above).

Further international reports that followed the Act's entry into force concurred with that assessment.

The UN Special Rapporteur on the Independence of Judges and Lawyers, in his report of 5 April 2018 following his mission to Poland, noted that the reorganisation of the Polish judicial system had been ‘undertaken by the governing majority in haste and without proper consultation with the opposition, the judiciary and civil society actors’ and recommended that the 2017 Amending Act be ‘amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and separation of powers’ by removing the provisions concerning the new election procedure and ensuring that the fifteen judicial members of the NCJ were elected by their peers (see paragraph 127 above).

The Council of Europe Commissioner for Human Rights, in her report published on 28 June 2019 in the wake of her visit to Poland, expressed serious concerns regarding the composition and independence of the newly created NCJ and considered that entrusting the legislature with the task of electing its members undermined its independence (see paragraph 135 above).

GRECO, in its two successive reports of June 2018 and December 2019, recommended that Poland amend the 2017 Amending Act to ensure that at least half of its members were judges elected by their peers (see paragraphs 147–148 above).

On 17 September 2018 the Extraordinary General Assembly of the ENCJ suspended the NCJ's membership in that organisation for non-compliance with the NCJ's statutory rule that a member should be independent from the executive, believing that the NCJ no longer guaranteed its ‘final responsibility for the support of [the] judiciary in the independent delivery of justice’. The 2020 ENCJ Executive Board proposal for expulsion of the NCJ from the organisation on the grounds that, among other things, it undermined the application of EU law on the independence of judges and its effectiveness and acted against the interests of the European Area of freedom, security and justice, and the values it stood for (see paragraphs 175–176 above).

At the same time, the European Union institutions noted, with similarly grave concern, legislative changes affecting the organisation and structure of the Supreme Court which had been introduced in tandem with the 2017 Amending Act by means of the 2017 Act on the Supreme Court and comprised various modifications, such as lowering the retirement age of the judges currently sitting in the court, removing the power of the First President of the Supreme Court to announce vacant positions in the court and creating two new chambers — the Disciplinary Chamber and that of Extraordinary Review, which, in contrast to all other chambers, were not subordinate to the First President of the Supreme Court and were given considerable autonomy, a separate, independent budget and structure, and, last but not least, an increased salary. In a unanimous assessment of the European Union institutions, the reorganisation of the Polish judicial system has been seen as creating a ‘clear risk of a serious breach of the values referred to in Article 2 of TEU’ by Poland and a ‘systemic threat’ to the rule of law in Poland, in particular the principle of the independence of the judiciary (see paragraphs 153–160 above).

As in the case of the 2017 Amending Act, the Venice Commission raised its concerns about the 2017 Act on the Supreme Court and the Disciplinary Chamber already before the Act's entry into force, in its report adopted on 11 December 2017. It considered that the proposed creation of new chambers — the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs ‘[would] not only threaten the independence of the judges of the Supreme Court, but also create a serious risk for the legal certainty’. In sum, considering the cumulative effect of the amendments proposed under both Acts, the Venice Commission concluded that they would put the judiciary under direct control of the parliamentary majority and of the President of Poland, contrary to the very idea of the separation of powers and judicial independence laid down in Articles 10 and 173 of the Polish Constitution (see paragraph 140 above). Similar views were expressed subsequently, after the Act entered into force, by PACE and the Council of Europe's Commissioner for Human Rights (see paragraphs 135 and 137–138 above).

At domestic level, the same concerns and serious doubts as to whether the Disciplinary Chamber, given the involvement of the NCJ in the appointment procedure for the judges and the characteristics of this body, gave rise to the requests to the CJEU from the Supreme Court's Chamber of Labour and Social Security for a preliminary ruling in three cases. The requests were made in August and September 2018 (see paragraphs 46 and 71 above).

On 19 November 2019 the CJEU, after obtaining an opinion from Advocate General Tanchev concluding that the Disciplinary Chamber did not satisfy the requirements of independence set out in Article 47 of the Charter, and recalling that the interpretation of Article 47 was borne out by the Court's case-law under Article 6 § 1, delivered a preliminary ruling reiterating the elements that were relevant for the referring court in its own assessment (see paragraph 164 above). The indications formulated by the CJEU can be summarised as follows:

As to the application of Article 47 of the Charter and Article 9(1) of Directive 2000/78 (see paragraphs 152 and 164 above), the CJEU held as follows:

On 5 December 2019 the Labour and Social Security Chamber of the Supreme Court gave judgment in the first of three cases referred for a preliminary ruling to the CJEU. Emphasising that in that case it was performing exclusively the role of an EU court implementing the CJEU ruling and that it was not examining the constitutionality of the 2017 Amending Act but rather its compatibility with EU law (see paragraphs 72 and 75 above), the Supreme Court made an extensive analysis of the domestic legislation in the light of the CJEU's guidance and the Convention case-law under Article 6 of the Convention (see paragraphs 71–86 above).

As regards the circumstances in which the NCJ had been created and the Constitutional Court judgment of 20 June 2017 that had given rise to the change in the election procedure, the Supreme Court observed that, given the absence of any amendment to the Constitution, the Constitutional Court had not so much changed the position taken in the 2007 judgment but, rather, had created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial and fundamental obligations under EU law. In its view, the new interpretation was not supported by legal theory and the judgment itself had been a manifestation of a constitutional crisis in Poland as it had been delivered by a formation including two members appointed in an unlawful procedure (see paragraph 73 above).

It further found that under the 2017 Amending Act, which had been enacted notwithstanding the long tradition of judicial members of the NCJ being elected by their peers and the principle of the separation of powers, the legislature and the executive had gained almost a monopolistic position in deciding on NCJ membership, since twenty-three out of twenty-five its members were ultimately appointed by authorities other than the judiciary. In consequence, the principle of division of State powers and their separation, laid down in Article 10 of the Constitution, had been disregarded.

As regards the manner in which the NCJ had exercised its role of safeguarding the independence of the courts and judges in practice, the Supreme Court found that it had failed to fulfil its constitutional obligation in that respect since it had taken no action in defence of the Supreme Court's independence or in order to forestall attempts to force the Supreme Court judges into retirement after the 2017 Act on the Supreme Court took effect. Moreover, the NCJ members had publicly demanded that disciplinary action be taken against judges filing requests for a preliminary ruling to the CJEU and had challenged the right to make such requests (see paragraph 80 above). Having regard to all the relevant circumstances, the Supreme Court concluded that that NCJ did not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure (see paragraph 81 above).

As to the Disciplinary Chamber, the Supreme Court followed the guidance given by the CJEU in the judgment of 19 November 2019 and looked at various elements. It considered that, when taken separately, they were not conclusive of that chamber's failure to comply with the standards set out in Article 47 of the Charter, Article 6 of the Convention and Article 45 § 1 of the Constitution. However, in view of such circumstances, taken together, as:

the Disciplinary Chamber clearly and unequivocally was not a ‘tribunal’ or ‘court’ within the meaning of the above provisions.

The above conclusions regarding the NCJ's lack of independence and the Disciplinary Chamber's lack of attributes of a ‘tribunal’ were fully endorsed by the Supreme Court, sitting in a formation of fifty-nine judges of the joined Civil, Criminal and Social Security Chambers, in its interpretative resolution of 23 January 2020. In that context, it is to be noted that this resolution resulted from a divergence in the Supreme Court's case-law, having been caused, in particular, by the resolution of the Chamber of Extraordinary Review and Public Affairs, which, in contrast to the above judgment of 5 December 2019, had interpreted narrowly the consequences for the Disciplinary Chamber of the CJEU ruling of 19 November 2019 (see paragraphs 48–50 and 89 above).

The joined Chambers found that, following the change in the election procedure under the 2017 Amending Act and the circumstances in which the NCJ had been constituted, this body lacked the necessary independence from the legislative and executive powers and that a judicial formation including a person appointed upon its recommendation — be it a judge appointed to the Supreme Court or to military or ordinary courts — was contrary to the law and amounted to a breach of Article 47 of the Charter, Article 6 § 1 of the Convention and Article 45 § 1 of the Constitution (see paragraphs 89–105 above).

These conclusions, explained in extensive reasoning, were reached after a thorough, meticulous assessment of all the elements relevant to an ‘independent and impartial tribunal established by law’ in the light of the constitutional principles governing the NCJ's functioning, including the principle of the separation and balance of the legislative, executive and judicial powers and the principle of the independence of the judiciary (see paragraphs 93–94 above).

The Government submitted that the Supreme Court's interpretative resolution had been ‘removed’ by the Constitutional Court's judgment of 20 April 2020 holding that the President of Poland's decisions on judicial appointments could not be subject to any type of review, including by the Supreme Court, and declaring that the resolution was incompatible with a number of constitutional provisions, including, inter alia, the principle of the rule of law (Article 2), the obligation to respect international law binding on Poland (Article 9), the principle of legality (Article 7), the right to a fair hearing before an impartial and independent court (Article 45 § 1) and the provision setting out the President's prerogative to appoint judges (Article 144 § 3 (17)), and that it was also in breach of Articles 2 and 4(3) of TEU and Article 6 § 1 of the Convention.

The Court does not share this assessment for a number of reasons stated below. In that regard, it would again stress that it is not this Court's task to interpret the Polish Constitution and that the statements below are not to be read as in any way implying that the Court seeks to substitute itself for the Constitutional Court in its role (see paragraph 231 above). However, this Court has a treaty-given power under Article 32 § 1 of the Convention to rule on all matters concerning the interpretation and application of the Convention. In the exercise of that power, in accordance with its case-law, it may review the domestic courts' decisions so as to ascertain whether those courts struck the requisite balance between the various competing interests at stake and correctly applied the Convention standards (see paragraph 230 above)

In this context, the Court reiterates that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to ‘a tribunal established by law’ is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society (see Guðmundur Andri Ástráðsson, cited above, § 237).

It is also to be reiterated that although the right to a ‘tribunal established by law’ is a stand-alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of ‘independence’ and ‘impartiality’. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (see Guðmundur Andri Ástráðsson, cited above, §§ 232–233).

Turning to the present case, the Court is not persuaded that the Constitutional Court's judgment relied on by the Government deprived the Supreme Court's resolution of its meaning or effects for the purposes of this Court's ruling as to whether there has been a ‘manifest breach of the domestic law’ in terms of Article 6 § 1. This judgment appears to focus mainly on protecting the President's constitutional prerogative to appoint judges and the status quo of the current NCJ, leaving aside the issues which were crucial in the Supreme Court's assessment, such as an inherent lack of independence of the NCJ which, in that court's view, irretrievably tainted the whole process of judicial appointments, including to the Disciplinary Chamber. The Constitutional Court, while formally relying on the constitutional principles of the separation of powers and the independence of the judiciary, refrained from any meaningful analysis of the Supreme Court's resolution in the light of these principles.

The same is true in respect of the Constitutional Court's interpretation of the standards of independence and impartiality of a court under Article 6 § 1 of the Convention that led it to the conclusion that the Supreme Court's interpretative resolution was incompatible with that provision. In particular, the Constitutional Court found that those Convention standards excluded the power of ‘other judges’ to generally question a ‘judge's right to adjudicate’ or to verify ‘the regularity of the procedure preceding the appointment of a judge by the President’ (see paragraph 116 above).

The Court sees no conceivable basis in its case-law for such a conclusion. In that regard, it would reiterate that ‘independence of a tribunal established by law’ refers to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge's imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements — involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit —, which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234 and the case-law cited therein).

Considering the apparent absence of a comprehensive, balanced and objective analysis of the circumstances before it in Convention terms, the Court finds that the Constitutional Court's evaluation must be regarded as arbitrary and as such cannot carry any weight in the Court's conclusion as to whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law involved in the procedure for judicial appointments to the Disciplinary Chamber (see paragraph 259 above).

Furthermore, in the Court's view this judgment must be seen in conjunction with the general context in which the Constitutional Court has operated since the end of 2015 and its actions aimed at undermining the Supreme Court resolution's finding as to the manifest breach of domestic and international law due to the deficient judicial appointment procedure involving the NCJ.

These actions started from an unprecedented interim decision of 28 January 2020, suspending the Supreme Court's jurisdiction to issue resolutions concerning the compatibility, with international law and the case-law of international courts, of the NCJ's composition, the procedure for judicial appointments conducted by that body and the President's prerogative to appoint judges (see paragraph 119 above). The Court considers that this kind of interference with a judicial body, aimed at incapacitating it in the exercise of its adjudicatory function in the application and interpretation of the Convention and other international treaties, must be characterised as an affront to the rule of law and the independence of the judiciary.

The Constitutional Court's final decision on that matter given on 21 April 2020 perpetuated this state of affairs, in holding that the Supreme Court had ‘no jurisdiction’ to issue resolutions on the interpretation of legal provisions that could lead to ‘modification of the legal situation regarding the organisational structure of the judiciary’ (see paragraphs 120 — 121 above).

Lastly, the Court would note in passing that the bench of the Constitutional Court that issued all four above-mentioned rulings of 20 June 2017 and 28 January, 20 and 21 April 2020 included Judge M.M. (see paragraphs 112, 116 and 120 above), whose own appointment to the Constitutional Court raised doubts as to whether it was lawful and whose participation in the Constitutional Court formation has been the subject of the Court's assessment as to whether such formation met the criteria of a ‘tribunal established by law’ in a judgment given by the Court in the case of Xero Flor w Polsce sp. z o.o. (cited above).

Having regard to all the above considerations, and in particular to the convincing and forceful arguments of the Supreme Court in the judgment of 5 December 2019 and the resolution of 23 January 2020, and that court's conclusions as to the procedure for judicial appointments to the Disciplinary Chamber being contrary to the law — conclusions reached after a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention's fundamental standards and of EU law, and in application of the CJEU's guidance and case-law — the Court finds it established that in the present case there was a manifest breach of the domestic law for the purposes of the first step of the Ástráðsson test.

The applicant alleged a second breach of the domestic law in that the President of Poland's announcement of vacant positions in the Supreme Court had lacked the Prime Minister's countersignature (see paragraph 189 above).

The Court notes that, in that respect, the Government's position on the matter differs from opinions expressed by the Supreme Court and, most recently, the Supreme Administrative Court (see paragraphs 97 and 122–125 above). However, given that, as established above, the process of judicial appointments to the Disciplinary Chamber was inherently defective on account of the involvement of the NCJ as a body lacking independence from the legislature and executive, the Court does not find it necessary to ascertain whether in addition there was a separate breach of the domestic law resulting from the fact that the President's announcement of vacant positions in the Supreme Court was made without the Prime Minister's countersignature.

When determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a ‘tribunal established by law’, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive or the legislature with the judiciary, and whether the breach in question undermined the very essence of the right to a ‘tribunal established by law’ (see Guðmundur Andri Ástráðsson, cited above, §§ 226 and 255).

The process of appointment of judges may be open to such undue interference, and it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case ‘irregular’, given the correlation between the procedure for the appointment of a judge and the ‘lawfulness’ of the bench on which such a judge subsequently sits (ibid., § 226).

In that context, the Court would also refer to the following statement in the CJEU preliminary ruling of 19 November 2019:

As regards the degree of independence of the NCJ and the issue whether there was undue interference by the legislative and executive powers with the appointment process, the Court would first refer to the various — and in substance unanimous — opinions of the international organisation and bodies which have already been cited above, according to which the changes in the election procedure for the judicial members of the NCJ introduced under the 2017 Amending Act resulted in the NCJ no longer being independent or able to fulfil its constitutional obligation of safeguarding the independence of courts and judges (see paragraphs 240–245 above).

In that context, the Court also finds it important to take into account the circumstances in which the new NCJ was constituted.

After the entry into force of the 2017 Amending Act on 17 January 2018, Sejm proceeded with an examination of the applications from candidates to the new NCJ and elected its fifteen judicial members on 6 March 2018 (see paragraph 14 above). As submitted by a third-party intervener, the Polish Commissioner for Human Rights, the elections were apparently boycotted by the legal community as only eighteen candidates applied for fifteen positions to the new NCJ (see paragraph 206 above). As pointed out by the second intervener, the ICJ, six judges out of fifteen appointed to the NCJ by the Parliament had been in the past six months appointed as president or vice-president of courts by the Minister of Justice (see paragraph 212 above). The concerns were raised by the Council of Europe Commissioner for Human Rights (see paragraph 29 of the report of 28 June 2019 in paragraph 135 above) and the ENCJ (see paragraph 175 above) that the majority of the members of the current NCJ were either members of the ruling party, holders of governmental office or chosen by Parliament on the recommendation of the ruling party.

The Supreme Court, in its judgment of 5 December 2019, found that it was the executive, through persons directly or indirectly subordinate to it, which proposed most of the candidates for election as judicial members of the NCJ (see paragraphs 77–79 above).

The Supreme Court, in its resolution of 23 January 2020, established that there had been a significant influence exerted by the Minister of Justice, who was also the Prosecutor General, on the composition of the NCJ. It noted that this had been confirmed by the official statement of the Minister himself in the Senate of the Republic of Poland (see paragraph 100 above).

There also appears to have been some controversy surrounding the initial non-disclosure of the endorsement lists by the executive authorities, which had made it impossible to verify whether the candidates had obtained the required number of signatures of judges to endorse their candidatures for election to the NCJ (see paragraphs 16–22 above). In the Court's view, a situation where the public is not given official clarification as to whether the formal requirement of obtaining sufficient support for the candidates for the NCJ has been met may raise doubts as to the legality of the process of election of its members. Moreover, a lack of scrutiny of who had supported the candidates for the NCJ may raise suspicions as to the qualifications of its members and to their direct or indirect ties to the executive. According to the information now in the public domain, the NCJ had been elected with the support of a narrow group of judges with strong ties to the executive (judges seconded to the Ministry of Justice and the presidents and vice-presidents of courts recently promoted to those offices by the Minister of Justice; see also paragraph 176 above). As indicated by the Supreme Court, there were also doubts as to whether all elected members of the NCJ had fulfilled the legal requirement of having been supported by twenty-five active judges (see paragraphs 78 and 96 above and the statement by the third-party intervener at paragraph 207 above).

In view of the foregoing, the Court finds that by virtue of the 2017 Amending Act, which deprived the judiciary of the right to nominate and elect judicial members of the NCJ — a right afforded to it under the previous legislation and recognised by international standards — the legislative and the executive powers achieved a decisive influence on the composition of the NCJ (see paragraphs 126–148 and 155–176 above). The Act practically removed not only the previous representative system but also the safeguards of independence of the judiciary in that regard. This, in effect, enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities took advantage — as shown, for instance, by the circumstances surrounding the endorsement of judicial candidates for the NCJ (see paragraphs 271–272 above).

At the same time, under the 2017 Act on the Supreme Court, the First President of the Supreme Court was divested of her prerogative to announce vacant positions in that court, this prerogative being taken away from her in favour of the President of Poland. Even though the Court has not found it necessary to ascertain whether or not the President's announcement of vacant positions in the Disciplinary Chamber was contrary to the domestic law (see paragraph 265 above), it must note that depriving the First President of that prerogative further weakened the involvement of the judiciary in the judicial appointment process, in particular appointments to the Supreme Court.

Assessing all the above circumstances as a whole, the Court finds that the breach of the domestic law that it has established above, arising from non-compliance with the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure since, as a consequence of that breach, the recommendation of candidates for judicial appointment to the Disciplinary Chamber — a condition sine qua non for appointment by the President of Poland — was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. A procedure for appointing judges which, as in the present case, discloses an undue influence of the legislative and executive powers on the appointment of judges is per se incompatible with Article 6 § 1 of the Convention and as such, amounts to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed.

In sum, the breaches in the procedure for the appointment of judges to the Disciplinary Chamber were of such gravity that they impaired the very essence of the right to a ‘tribunal established by law’.

The Government considered that it was not necessary to carry out the third step of the test (see paragraph 193 above). Neither the Government nor the applicant argued that there had been a procedure under Polish law whereby the applicant could challenge the alleged defects in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court.

The Court finds that there was no such procedure directly available to the applicant. Consequently, no remedies were provided (see Guðmundur Andri Ástráðsson, cited above, § 248).

The Court has established that there was a manifest breach of the domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court, since the appointment was effected upon a recommendation of the NCJ, established under the 2017 Amending Act, a body which no longer offered sufficient guarantees of independence from the legislative or executive powers.

The irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continues to lack the attributes of a ‘tribunal’ which is ‘lawful’ for the purposes of Article 6 § 1. The very essence of the right at issue has therefore been affected.

In the light of the foregoing, and having regard to its overall assessment under the three-step test set out above, the Court concludes that the Disciplinary Chamber of the Supreme Court, which examined the applicant's case, was not a ‘tribunal established by law’.

Accordingly, there has been a violation of Article 6 § 1 of the Convention in that regard.