{"id":2155,"date":"2021-11-21T17:16:07","date_gmt":"2021-11-21T16:16:07","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=2155"},"modified":"2022-02-11T21:43:26","modified_gmt":"2022-02-11T20:43:26","slug":"the-polish-chamber-of-extraordinary-review-and-public-affairs-not-an-independent-and-impartial-tribunal-established-by-law-judgment-by-the-echr-in-the-case-of-dolinska-ficek-and-ozi","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/fr\/the-polish-chamber-of-extraordinary-review-and-public-affairs-not-an-independent-and-impartial-tribunal-established-by-law-judgment-by-the-echr-in-the-case-of-dolinska-ficek-and-ozi\/","title":{"rendered":"The Polish Chamber of Extraordinary Review and Public Affairs not an \u201cindependent and impartial tribunal established by law\u201d: judgment by the ECHR in the case of Doli\u0144ska-Ficek and Ozimek v. Poland"},"content":{"rendered":"\n

In the case of Dolinska-Ficek and Ozimek v. Poland<\/em> (49868\/19 and 57511\/19, 8.11.2021) the European Court on Human Rights ruled on the requirements of the right to an independent and impartial tribunal established by law<\/strong>, protected by Article 6 \u00a7 1 of the Convention. It did so in the context of applications brought by two Polish judges who had applied for vacant judicial posts in other courts but had not been recommended for those posts by the National Council of the Judiciary (NCJ). They complained that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court<\/strong> (Chamber of Extraordinary Review), which had examined their appeals against the resolutions of the NCJ, had not been a \u201ctribunal established by law\u201d and had lacked impartiality and independence.<\/p>\n\n\n\n

In this connection, the Court recalled: Although the right to a \u201ctribunal established by law<\/strong>\u201d is a stand\u2011alone right under Article 6 \u00a7 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of \u201cindependence<\/strong>\u201d and \u201cimpartiality<\/strong>\u201d. While all three elements each serve specific purposes as distinct fair trial<\/strong> safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 \u00a7 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law<\/strong> and the separation of powers<\/strong>. <\/em>(\u00a7 315)<\/p>\n\n\n\n

The Court found that the procedure for appointing the judges concerned had been unduly influenced by the legislative and executive powers<\/strong>. This had amounted to a fundamental irregularity<\/strong> which had adversely affected the whole process and compromised the legitimacy<\/strong> of the Chamber of Extraordinary Review which had examined the applicants\u2019 cases. The Chamber of Extraordinary Review was therefore not an \u201cindependent and impartial tribunal established by law\u201d within the meaning of Article 6 \u00a7 1.<\/p>\n\n\n\n

In reaching that conclusion, the Court, as previously in Reczkowicz v. Poland<\/a><\/u><\/em>, amply referred to CJEU case-law, while applying its own methodology, notably the three-step test formulated in the case of Gu\u00f0mundur Andri \u00c1str\u00e1\u00f0sson v. Iceland<\/a><\/u> <\/em>for the assessment of whether a court can be considered a \u201ctribunal established by law\u201d (\u00a7 272).<\/p>\n\n\n\n

The Court identified two manifest breaches of domestic law <\/strong>which pertained to fundamental rules of the procedure for the appointment of judges<\/strong>. A first such breach resulted from a radical change of the election model<\/strong> following which the fifteen judicial members of the NCJ were no longer to be elected by their peers but by Parliament. This change had been initiated by a new jurisprudence of the Constitutional Court<\/strong> which the Court considered arbitrary<\/strong>, on account of the absence of a comprehensive, balanced, and objective analysis of the relevant circumstances in Convention terms (\u00a7\u00a0317). The Court thereby relied on a similar conclusion by the Supreme Court which had itself conducted an extensive analysis of the domestic legislation in the light of the Convention case-law relating to Article 6 and the CJEU\u2019s ruling in the case of A.K. and Others<\/a><\/u><\/em>, to which the Court also extensively referred (\u00a7\u00a7 305-306). <\/p>\n\n\n\n

The second manifest breach of domestic law resulted from the President of Poland\u2019s appointment of judges<\/strong> to the Chamber of Extraordinary Review despite an interim measure by the Supreme Administrative Court ordering the stay of the implementation<\/strong> of a Resolution by the NCJ recommending candidates for twenty posts of judges in the Chamber of Extraordinary Review, pending its examination of the appeals brought against that Resolution. The Court found that in so doing, the President of the Republic had demonstrated an attitude which could only be described as one of utter disregard for the authority, independence, and role of the judiciary<\/strong> (\u00a7 330) and as blatant defiance of the rule of law<\/strong> (\u00a7 338). It thereby relied on similar conclusions by the CJEU in the cases of A.B. and Others<\/a><\/u><\/em> and W.\u017b<\/a>. (\u00a7\u00a7 324, 327-328)<\/p>\n\n\n\n

DOLINSKA-FICEK-AND-OZIMEK<\/a>Download PDF<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

In the case of Dolinska-Ficek and Ozimek v. Poland (49868\/19 and 57511\/19, 8.11.2021) the European Court on Human Rights ruled on the requirements of the right to an independent and impartial tribunal established by law, protected by Article 6 \u00a7 1 of the Convention. It did so in the context of applications brought by two […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22,19],"tags":[],"class_list":["post-2155","post","type-post","status-publish","format-standard","hentry","category-european-court-of-human-rights","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"fr","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2155","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/comments?post=2155"}],"version-history":[{"count":3,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2155\/revisions"}],"predecessor-version":[{"id":2159,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2155\/revisions\/2159"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/media?parent=2155"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/categories?post=2155"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/tags?post=2155"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}