TrustHLT/LaCour huggingface dataset:
GR1 (Government): In response to the question of Judge Kjellbro, I can confirm that the focus on the applicant's asylum proceedings was on Serbia as a safe third country.
GR1 (Government): It followed from the nature of the border proceedings dealing with the admissibility of the application.
GR1 (Government): However, the applicants were briefly questioned on their reasons for seeking asylum, and their statements were sufficient to reveal that their applications were also manifestly ill-founded on the merits.
GR1 (Government): The consequences of their leaving, as we saw, that they could continue their journey to Western Europe by alternative routes, and they could submit or could have submitted asylum in other states.
GR1 (Government): They have been examples in the jurisprudence of Hungarian courts when the presumption of safe third country was successfully refuted by the asylum applicants.
GR1 (Government): We know of at least two such cases.
GR1 (Government): Continuation of asylum proceedings after first absconding them by the applicants is typical in the context of Dublin proceedings, which means that they didn't return Hungary voluntarily, but they were forced, so-called forced, to come back to Hungary.
GR1 (Government): As to the question of Judge Spanu, I can repeat that the applicants left voluntarily after the decision on their expulsion, which was communicated then without waiting for the measures of enforcement, which would have involved seeking admission by the Serbian authorities.
GR1 (Government): As they were not in detention, the government could not retain them with such as admission was made.
GR1 (Government): On the method, by the update of the list of third safe countries, I can assure that the Hungarian law was eliberated in conformity with Article 38 and 39 on the concept of the third safe countries, enshrined by the Directive 2013, 32 EU Directive.
GR1 (Government): And it is very important also that even the Hungarian asylum authorities' decision used their reports, which included media reports, for instance, the Serbian B92 television broadcast about the upcoming of an asylum center with a capacity of 300 people in Pressebo.
GR1 (Government): Concerning the inherent limitation, the question of inherent limitation, I would like to pay your attention that according to the principle of marginal appreciation, the state has the right to control and also stop the entry into the territory of the relevant state.
GR1 (Government): Under Hungarian law, the applicants didn't have a right to enter the state of Hungary.
GR1 (Government): As regards the notion of inherent limitation, a plus information, I would like to repeat that we cannot regard the situations when the right to do something is excluded by law as calling for individual judicial decisions or restriction of liberty.
GR1 (Government): The lawfulness of that limitation can be assessed only in the context of the measure they are inherent in.
GR1 (Government): In this case, the question is whether the applicants had the right to entry, and therefore the lawfulness of the limitation of the right to entry cannot be assessed independently of the merits of the case as the applicants claim. Thank you very much.
Guido Raimondi (JudgeP): The judgment will be delivered at a later stage, and the parties will be informed of the date of delivery.
Robert Spano (JudgeP): I welcome all participants to this public hearing organized by the European Court of Human Rights with the use of video conferencing technology, which has been made necessary due to the COVID-19 health crisis.
Robert Spano (JudgeP): I wish to begin by thanking the applicant and the respondent government for their cooperation in preparing this hearing on the admissibility and merits in the case of Grzęda versus Poland, which I now declare open.
Robert Spano (JudgeP): This hearing is being recorded in its entirety and will be webcast in order to ensure its public character.
Robert Spano (JudgeP): The application was lodged with the court on 4 September 2018 under Article 34 of the convention by a Polish national, Mr. Jan Jenda.
Robert Spano (JudgeP): The application was allocated to the first section of the court pursuant to Rule 52, paragraph 1 of the rules of court.
Robert Spano (JudgeP): The application was communicated to the government on 9 July 2019.
Robert Spano (JudgeP): On 9 February 2021, the chamber decided to relinquish jurisdiction in favor of the grand chamber.
Robert Spano (JudgeP): The following were granted leave under Article 36, paragraph 2 of the convention, and Rule 44, paragraph 3 of the rules of court to make written submissions to the court as third parties.
Robert Spano (JudgeP): The European Network of Councils for the Judiciary, the International Commission of Jurists and Amnesty International jointly, the Helsinki Foundation for Human Rights Poland, the Commissioner for Human Rights of the Republic of Poland, the Polish Judges Association Iustitia, the Judges for Judges Foundation, the Netherlands and Professor Lauren Pech jointly, the UN Special Rapporteur for the Independence of Judges and Lawyers, and the governments of Denmark and the Kingdom of the Netherlands.
Robert Spano (JudgeP): The Commissioner for Human Rights of the Republic of Poland was also granted leave to take part in the hearing and to make oral submissions as a third party by virtue of Rule 44, paragraph 3 of the rules of court.
Robert Spano (JudgeP): The respondent government are represented by their agent, Mr. Jan Sobczak, and their co-agent,
Robert Spano (JudgeP): Ms. Agata Rogalska-Piechota of the Ministry of Foreign Affairs.
Robert Spano (JudgeP): The applicant is represented by Mr. Mikołaj Pietrzak
Robert Spano (JudgeP): and Ms. Małgorzata Mączka-Pacholak,
Robert Spano (JudgeP): counsel assisted by Mr. Adam Płoszka, advisor.
Robert Spano (JudgeP): The applicant is also present.
Robert Spano (JudgeP): The commissioner, third party intervener, is represented by Mr. Maciej Taborowski,
Robert Spano (JudgeP): deputy commissioner, Mr. Mirosław Wróblewski,
Robert Spano (JudgeP): director of the Department of Constitutional, International, and European Law at the office of the commissioner, and Mr. Paweł  Filipek, chief specialist
Robert Spano (JudgeP): in that department.
Robert Spano (JudgeP): Having consulted the agent of the government and the representative of the applicant and the representative of the third party, I have determined the order of address as follows.
Robert Spano (JudgeP): Mr. Sobczak for the government will speak first,
Robert Spano (JudgeP): and then Mr. Pietrzak and Ms. Mączka-Pacholak
Robert Spano (JudgeP): for the applicant, and finally, Mr. Filipek
Robert Spano (JudgeP): for the commissioner.
Robert Spano (JudgeP): I now give the floor to Mr. Sobczak, please.
GR1 (Government): Mr. President, distinguished member of the court, ladies and gentlemen,
GR1 (Government): I have the honor to present the position of the government of the Republic of Poland in the present case concerning the alleged violations of Article 6, Paragraph 1 and Article 13 of the Convention.
GR1 (Government): At the outset, I should like to recall the legal background of the case related to the reform of the National Council of the Judiciary for the purpose of this application also called the NCJ.
GR1 (Government): The National Council of the Judiciary is a collegial body composed of 25 members.
GR1 (Government): 21 members, including four deputies of the lower chamber of the parliament.
GR1 (Government): The same, there's two senators and 15 judges of various branches and levels of the judiciary are elected for a four-year term of office.
GR1 (Government): In addition, there are four ex officio members of the NCJ, including the Minister of Justice, a representative of the President of the Republic, the first president of the Supreme Court and the president of the Supreme Administrative Court.
GR1 (Government): At least until 2002, there had been no doubt that the term of office for all the groups of the elected members of the NCJ started and ended at the same time.
GR1 (Government): In 1999, one of the NCJ's members was appointed a judge of the Supreme Administrative Court, which led to an early ex lega termination of his term of office at the NCJ.
GR1 (Government): Another judge who was elected to replace him as a member of the NCJ should have held his office for the remainder of his predecessor's term as all other judges members of the NCJ.
GR1 (Government): However, on 12 February 2002, the NCJ adopted a statement in which it took a position that the term of office of a judge elected as a member of the NCJ should be considered individually.
GR1 (Government): On this basis, the term of office of the replacing judge was extended until 14 February 2004.
GR1 (Government): In this way, a discrepancy arose with respect to the joint or individual nature of the term of office of the judges elected members of the NCJ and other elected members of the NCJ.
GR1 (Government): This practice was subsequently confirmed by the NCJ Act of 2011.
GR1 (Government): In order to remove the discrepancies, the general public prosecutor lodged an application with the Constitutional Tribunal regarding the procedure of electing judges to the NCJ and the term of office of elected members.
GR1 (Government): On 20 June 2017, the Constitutional Tribunal ruled that the term of office of all elected members of the NCJ should be considered jointly.
GR1 (Government): In accordance with Article 190, paragraph 1 of the Constitution, judgments of the Constitutional Tribunal are universally binding and final.
GR1 (Government): The public authorities are obliged to execute them.
GR1 (Government): Consequently, the Polish authorities undertook a legislative initiative with a view to amending the respective provisions of the NCJ Act.
GR1 (Government): One of the aims was to depart from the unconstitutional practice of individual calculation of terms of office of the NCJ's members elected from among the judges.
GR1 (Government): The other aim was to change and democratize the way of electing judges to the NCJ, which was also found unconstitutional.
GR1 (Government): The amendment at stake constituted, therefore, a direct implementation of the Constitutional Tribunal's Article 517.
GR1 (Government): The amendment entered into force on 17 January 2018.
GR1 (Government): Consequently, the way of electing judges members of the Council of the NCJ was changed.
GR1 (Government): As regards the term of office, a transitional provision stipulated that the mandate that the term of office of the NCJ's judges members elected on the basis of the previous Act would continue until the day preceding the beginning of the term of office of the new members, not longer than 90 days from the entry into force of the amending Act.
GR1 (Government): On 6 March 2018, the same elected 15 judges as new members of the NCJ.
GR1 (Government): On the same date, the term of office of the previous members of the Council was terminated ex legge, pursuant to Article 6 of the 2017 amending Act.
GR1 (Government): Mr. President, distinguished members of the Court, ladies and gentlemen, I should like to refer now to
GR1 (Government): the issue of whether the present application concerns a civil right in the meaning of Article 6, paragraph 1 of the Convention.
GR1 (Government): With respect to the applicant's complaint that he was denied access to a tribunal to contest the allegedly arbitrary and early termination of his mandate as a member of the National Council of the Judiciary, the government submits that the application should be considered rationa materie incompatible with the Convention and therefore rejected in accordance with Article 35, paragraph 4 of the Convention.
GR1 (Government): Let me recall that according to the well-established case law of the Court, for Article 6, paragraph 1, in its civil limit to be applicable, there must be a dispute over a right which can be said, at least on arguable grounds, to be recognized under domestic law, irrespective of whether that right is protected under the Convention.
GR1 (Government): The dispute must be also genuine and serious.
GR1 (Government): In the particular circumstances of the present case, I would like to stress that under the Polish law, there exists no right to exercise public authority.
GR1 (Government): There is no right for a judge to be appointed to the NCJ or to remain in function as its member.
GR1 (Government): What is more, there was no genuine and serious dispute in the case at stake concerning the existence of an alleged civil right of the applicant to be a member of the NCJ.
GR1 (Government): The termination of the applicant's term of office as a judge member of the NCJ was justified and legitimate.
GR1 (Government): The goal was to implement the Constitutional Court's judgment of 20 June 2017 in as much as it concerned the nature of the term of office of the judges elected members of the NCJ.
GR1 (Government): The measure was based on transitional provision of Article 6 of the 2017 amending Act.
GR1 (Government): It was technical, general in nature, and not discriminatory.
GR1 (Government): What is more, the decision to terminate ex lega the applicant's term of office concerned solely his mandate as the NCJ's member.
GR1 (Government): It did not touch upon his functions as judge and president of a regional administrative court.
GR1 (Government): The court should distinguish between the applicant's status as judge and president of a court from his function as a member of the NCJ.
GR1 (Government): The matter relates exclusively to the sphere of exercise of the public authority.
GR1 (Government): The NCJ is a constitutional authority tasked with safeguarding the independence and efficiency of the judiciary.
GR1 (Government): It does not constitute a part of the judiciary itself.
GR1 (Government): Indeed, the NCJ is a body situated in between the three constitutional powers, and as such it incarnates the balance of powers.
GR1 (Government): The membership of the NCJ does not constitute an employment within the meaning of the Polish Labour Code.
GR1 (Government): It is also not equivalent to any relationship under any other comparable legal regulation within the meaning of the court's case law under Article 6 of the Convention.
GR1 (Government): Let me stress that the present case is not an employment dispute case concerning civil servants, comparable to the circumstances in the cases of Bilo, Eskalin and Olbaka.
GR1 (Government): Membership of the NCJ is a public function without a formal labour contract being concluded or without a presumption of a labour contract.
GR1 (Government): This function does not result in any contractual or other obligation of paying a salary in exchange for the work performed.
GR1 (Government): It does not constitute grounds for any remuneration to be paid to the member or for any other employee rights or benefits.
GR1 (Government): It does not generate any future pension benefits.
GR1 (Government): On the contrary, the only financial rewards paid to the members of the NCJ are per diem allowances for taking part in the NCJ's plenary sessions or other work, as well as the reimbursement of travel and accommodation expenses.
GR1 (Government): By far, they do not constitute a remuneration within the meaning of the labour law.
GR1 (Government): Consequently, the membership of the NCJ does not reveal any civil character, both under the domestic law and under the Convention.
GR1 (Government): This pertains exclusively to the sphere of exercise of public authority without any civil rights component within the meaning of Article 6 of the Convention and the Court's case law.
GR1 (Government): In this context, the governments are of the position that the sphere of public authority actions should not be object to the human rights safeguards.
GR1 (Government): This applies also to the public status of the members of the NCJ.
GR1 (Government): The possibility of the term of office of an elected member of the NCJ was established by the legislator not to protect an individual interest of judges or to facilitate their career or self-realization, meant as fulfilment of one's character or personality, but to protect the public interest in ensuring a proper conduct of the NCJ's functions and competencies.
GR1 (Government): Such guarantees must not be understood as the source of an individual right as a judge member of the NCJ.
GR1 (Government): Consequently, a member of the NCJ does not have any right in holding his or her function.
GR1 (Government): An early termination of the term of office pertaining exclusively to the sphere of exercise of the public authority does not constitute an interference with the rights of an individual.
GR1 (Government): The exercise of the public authority never constitutes an inherent part of a person's individuality.
GR1 (Government): There exist no safeguards in the Convention and other international human rights treaties guaranteeing an individual the exercise of the public authority or even less a right to remain in office.
GR1 (Government): To conclude, the termination of the applicant's term of office as a judge member of the NCJ was legitimate and occurred in order to implement the 2017 judgment of the Constitutional Tribunal.
GR1 (Government): It constituted a technical measure aiming at establishment of a new term of office consonant with the relevant provisions of the Constitution.
GR1 (Government): The decision to terminate ex lega the applicant's term of office concerned solely his mandate as the NCJ's member.
GR1 (Government): It did not touch upon his function as a judge or his role of a president of an administrative court.
GR1 (Government): The membership of the NCJ does not constitute an employment within the meaning of the Polish labor law and the court's case law.
GR1 (Government): The present case does not constitute an employment dispute similar to the cases of Biloeskelinen or Baka.
GR1 (Government): The function is performed pro bono and involves at most a reimbursement of certain costs incurred.
GR1 (Government): The memberships of the NCJ does not reveal any character of a right both under the domestic law and under the Convention.
GR1 (Government): Consequently, in this case there was no genuine and serious dispute concerning the existence of a right of the applicant to remain a member of the National Council of the Judiciary.
GR1 (Government): Mr. President, distinguished judges of the court, should however the court consider otherwise,
GR1 (Government): the government submit that the alleged right claimed by the applicant was not civil within the autonomous meaning of Article 6, Paragraph 1 of the Convention and the criteria developed in the case of Biloeskelinen.
GR1 (Government): According to this criteria, in order for the respondent state to be able to rely before the court on the applicant's status as a civil servant, in excluding the protection embodied in Article 6 of the Convention, two conditions must be fulfilled.
GR1 (Government): First, the state in its national law must have expressly excluded access to a court for the post or category of staff in question.
GR1 (Government): Secondly, the exclusion must be justified on objective grounds in the state's interest.
GR1 (Government): Mr. President, ladies and gentlemen, I would like to focus now on the criterion of whether the national law excluded access to a court for the function held by the applicant.
GR1 (Government): The answer to this question is affirmative.
GR1 (Government): Under the Polish legal system, the applicant was excluded from the right of access to a court in as much as it concerned his capacity as the NCJ's member.
GR1 (Government): This exclusion had been in place already in the date of his election as a member of the NCJ.
GR1 (Government): The amendments introduced in 2017 did not change this fact.
GR1 (Government): Being a member of the NCJ relates to a public function.
GR1 (Government): As such, it constitutes exclusively a public law relation and does not amount to employment within the meaning of the Polish Labour Code or any other comparable legal relationship within the meaning of the court's case law.
GR1 (Government): As I have already stated, the membership of the NCJ is a purely public function without the formal labour contract being concluded or without the presumption of a labour contract.
GR1 (Government): According to Article 14 of the NCJ Act, in the wording applicable at the material time, the mandate of an appointed member of the NCJ could expire before the end of the term of office in the event of death, renunciation of the mandate, expiry of the mandate of the deputy or senator, expiry or termination of the judge's service relationship, retirement of the judge.
GR1 (Government): A transitional provision contained in Article 6 of the 2017 Amending Act stipulated that the mandate of judges members of the NCJ elected on the basis of the previous Act would continue until the day preceding the beginning of the term of office of the new members of the NCJ.
GR1 (Government): The 2011 NCJ Act has never envisaged any form of appeal or remedy in connection with the appointment, election or lack of election as a member of the NCJ.
GR1 (Government): It did not provide for any appeal or remedy in case of the expiry, termination or renunciation of the mandate of a member of the NCJ.
GR1 (Government): Moreover, also the previously binding 2001 NCJ Act envisaged a possibility of dismissal of a NCJ member by the body which that held had elected that member without indicating reasons for that.
GR1 (Government): No form of appeal or remedy has been envisaged in such a case.
GR1 (Government): The exclusion of the NCJ members from the right of access to a court in as much as this capacity is concerned is corroborated on the ground of the NCJ Act.
GR1 (Government): The NCJ Act stipulates that the judge elected member of the NCJ may be appointed upon his or her consent a permanent member of the NCJ's Bureau.
GR1 (Government): In such a situation, according to Article 25, Paragraph 2 of the NCJ Act, provisions of the law and the common code system are to be applied to such a judge accordingly, including a right to salary being paid.
GR1 (Government): Therefore, a judge appointed a permanent member of the NCJ's Bureau is considered to be employed and as such is protected under the law on the common code system and the labor code.
GR1 (Government): In particular, his or her rights pertaining to the employment in the NCJ's Bureau can be brought before a court in a lawsuit according to Article 89 of the law on the common code system.
GR1 (Government): Hence, domestic law expressly provides for the right to a court only in those limited circumstances.
GR1 (Government): A contrario, all circumstances other than this pertaining to the employment in the NCJ's Bureau are excluded from the right to a court rationa materia.
GR1 (Government): I would also like to draw the court's attention to the fact that the applicant, despite his arguments on the civil nature of his right, did not even attempt to subject his claim to a judicial review in order to obtain a court decision.
GR1 (Government): Such a decision could constitute a possible preliminary ruling for the purpose of lodging a constitutional complaint.
GR1 (Government): Regardless of the government's strong position that the right to a court in the applicant's case was generally excluded, the court before which the relevant request could have been brought by the applicant could have made a final assessment of whether there was access to a court in order to seek judicial protection in connection with the shortening of the term of office of a member of the NCJ.
GR1 (Government): The present case differs significantly from the circumstances in the case of Baca against Hungary.
GR1 (Government): Under the Polish law, the applicant's situation as a member of the NCJ substantially differs from the status of the first president or the judges of the Supreme Court.
GR1 (Government): First of all, the act of appointment of the first president to the Supreme Court by the president of Poland constitutes a legal basis for an employment relationship.