TrustHLT/LaCour huggingface dataset:
Saadet Yüksel (Judge): So I would ask if you could elaborate on this argument whether the exclusion is systematically corroborated, but particularly regarding for the judges who are holding the position only as members of the Council, like the applicants.
Robert Spano (JudgeP): Thank you very much. Judge Sabato.
Raffaele Sabato (Judge): The case before the court, of course, concerns termination of office of the NCJ member.
Raffaele Sabato (Judge): And my distinguished colleagues have already asked questions concerning that.
Raffaele Sabato (Judge): But indirectly, there is another point which the parties have argued before us today, which is the construction of Article 187 of the Polish Constitution of 1997 in the part in which it does not provide, and I'm quoting, I think, the agent of the government, for any particular way of the judge members to be elected.
Raffaele Sabato (Judge): And therefore, this has been argued, this was left under paragraph four of the same article to a statute.
Raffaele Sabato (Judge): And so the statute was changed, and so on and so forth.
Raffaele Sabato (Judge): Now, my question concerns the intention of the founders of this Polish Constitution on 1997.
Raffaele Sabato (Judge): We have not had an occasion of having any reference to, for example, preparatory works.
Raffaele Sabato (Judge): We have read the constitutional court judgments, and there have been arguments by the parties concerning that, some references to doctrine.
Raffaele Sabato (Judge): But in my opinion, it would be very important for the court to know.
Raffaele Sabato (Judge): And so my question is addressed to both parties.
Raffaele Sabato (Judge): What can be objectively found in the preparatory works to the Constitution?
Raffaele Sabato (Judge): There is one mention in the documents before us that there was an inspiration on the constitutions of Italy, France, and Spain.
Raffaele Sabato (Judge): And objectively, seeing this article, in my opinion, and I wish to be corrected if I'm wrong, is very close to the article, if I'm not wrong, 122 of the Spanish Constitution of 1978, which also doesn't tell the body competent to choose those judges.
Raffaele Sabato (Judge): And there's been a sort of little, if I'm not wrong, a little constitutional crisis in Spain when the method was changed.
Raffaele Sabato (Judge): If I'm not wrong, at this time judges choose a list, and it is submitted to Parliament in that country.
Raffaele Sabato (Judge): So my interest is in preparatory works to your Constitution.
Robert Spano (JudgeP): Thank you very much, Judge Kūris.
Egidijus Kūris (Judge): I have similar questions to both parties, but I will read them separately.
Egidijus Kūris (Judge): A question to the applicant.
Egidijus Kūris (Judge): In your Article 6 complaint, you assert that there had been no national legal provision expressly excluding access to a court for a claim based on the alleged unlawfulness of determination of your mandate as a member of the Council of Judiciary.
Egidijus Kūris (Judge): But at the same time, you allege that there has been a violation of Article 13, so no effective remedy.
Egidijus Kūris (Judge): So how could you reconcile these two assertions?
Egidijus Kūris (Judge): Did you have the right, simply, without much, did you have the right under Polish law to challenge that determination or not?
Egidijus Kūris (Judge): And a very similar but reversed question to the government.
Egidijus Kūris (Judge): Regarding applicant's Article 6 complaint, the government maintains that the Polish law excluded access to court for claims relating to the membership in the National Council of the Judiciary.
Egidijus Kūris (Judge): But you also argue that the remedy had been available for the purposes of Article 13.
Egidijus Kūris (Judge): So how to reconcile these two assertions?
Egidijus Kūris (Judge): Was there a remedy or not?
Egidijus Kūris (Judge): And now, after listening to the discussions, I have one more question.
Egidijus Kūris (Judge): I understand from the submissions of oral, especially oral submissions of the government, that the central or the most crucial significance is attributed to the judgment of the Constitutional Tribunal of 2017.
Egidijus Kūris (Judge): Because it was this judgment which had to be implemented by the follow-up act, statutory amendment, which then had the effect of termination of mandate.
Egidijus Kūris (Judge): So that judgment of the 20th of June of 2017.
Egidijus Kūris (Judge): And the court has been presented with a translation of that judgment.
Egidijus Kūris (Judge): And I would like to cite one paragraph of that judgment, one phrase, actually, of that judgment.
Egidijus Kūris (Judge): But before citing that and asking for a comment on that, I would say that perhaps we all know that there are certain standards, universally accepted, internationally accepted standards, long-standing standards of constitutional interpretation.
Egidijus Kūris (Judge): Such methods are used as method of legislative intent, teleological method, purportive interpretation, linguistic method, systemic methods, historical methods, and so on.
Egidijus Kūris (Judge): So now I will cite that judgment.
Egidijus Kūris (Judge): The constitutional court, in the current composition, does not agree with the constitutional court's position adopted in the judgment of 18th of July 2007, number 25K2507, that the Constitution specifies that judicial members of the NCJ shall be elected by judges.
Egidijus Kūris (Judge): Especially the words, court in the current composition does not agree.
Egidijus Kūris (Judge): Could you please comment?
Egidijus Kūris (Judge): First of all, I ask that to the representative of the government comment on which of the universally accepted standards of constitutional interpretation that thesis relies upon.
Egidijus Kūris (Judge): And I also call for the applicant, the representative of the applicant, to comment on that issue if they wish so.
Darian Pavli (Judge): I have two questions for the applicant.
Darian Pavli (Judge): The first relates to your claim that we're dealing with a civil right in this case.
Darian Pavli (Judge): And in making that claim, you seem to rely extensively on the emotional or moral impact of the early termination on the applicant, as there seem to be no financial implications in the ordinary labor law sense of the term.
Darian Pavli (Judge): My question is, what is the basis in our case law for your suggestion that the emotional impact is enough to make this a civil right?
Darian Pavli (Judge): I suppose a minister fired by the prime minister of parliament would also be quite disappointed, and I assume that's understandable.
Darian Pavli (Judge): But I suppose you would not suggest that that would give the minister's civil right in the Article VI sense of the term.
Darian Pavli (Judge): My second question relates to the second part of the Eskalinan test, if we get to that point, where, as I understand, you've essentially invited the court to set aside a legislative act of the national legislature because it goes contrary to the rule of law and the systems of checks and balances.
Darian Pavli (Judge): But now those are quite broad concepts.
Darian Pavli (Judge): Is there a specific rule of law with a small "r" that is universally, or at least in a prevailing way, accepted and applied in the Council of Europe legal space that you can identify that has been violated in the current case?
Robert Spano (JudgeP): Thank you very much indeed. I have no further questions from my colleagues.
Robert Spano (JudgeP): Only a final question from myself, which I address to the government, if I may.
Robert Spano (JudgeP): We are presented in this case with a series of domestic judgments.
Robert Spano (JudgeP): I'm struck by the fact that the government in their observations to us, written observations in their factual description, paragraph 6 to 24, make no reference at all to judgments rendered by the Supreme Court of 5 December 2019, which follows the ECJ judgment in AK and others.
Robert Spano (JudgeP): There is no mention of the resolution of the joint formations of the Supreme Court of 20 January 2020.
Robert Spano (JudgeP): So my question is this, Mr. Sobczak.
Robert Spano (JudgeP): As you know, one of the underlying principles under the Convention is the principle of subsidiarity, which requires the court to look very closely at the way in which the national courts have reviewed the Convention issue in question.
Robert Spano (JudgeP): How would you invite the court to deal with the, let me just say it bluntly, the clear clash which is between the Constitutional Tribunal on the one hand, in the judgments of 2017 and 2019 on the one hand, which the government heavily relies upon, and the judgments rendered by the Supreme Court, the resolution of the joint formation, and now most recently of 6 May 2021 of the Supreme Administrative Court?
Robert Spano (JudgeP): How would you, for the purposes of our examination of this case, how would you invite us to address the tensions between the domestic courts on the underlying issues in question?
Robert Spano (JudgeP): I would invite both the applicant and the third party interveners to comment on this as well.
Robert Spano (JudgeP): So now we suspend the hearing until 12 noon, both local time and Warsaw time.
Robert Spano (JudgeP): So please, we will commence again in just under 30 minutes, 12 noon.
Robert Spano (JudgeP): Welcome back. The hearing is resumed.
Robert Spano (JudgeP): I call Mr. Sobczak for the government.
GR1 (Government): Mr. President, distinguished member of the court,
GR1 (Government): allow me to start my final statement with the answer to the question which were asked by the honorable judges.
GR1 (Government): With request to the questions of Miss of Judge Lemans, and in particular to the first one, the first question concerns related to the issue whether the situation before and after the amending act, whether there was a possibility of premature termination of the term of office on other grounds.
GR1 (Government): In this respect, I would like to note that the mandate of a member of the NCJ is a derivative of his function.
GR1 (Government): So that means that if a judge is dismissed from office, he will also be excluded from his or her membership in the NCJ.
GR1 (Government): This will also be the case when the judge commits a crime.
GR1 (Government): So otherwise, there were not other possibilities beside those which I have already mentioned to dismiss the members of the NCJ.
GR1 (Government): With respect to the second and the third question, I would like to also answer the second and the third question of Judge Lemans and the first question of Judge Kuris jointly, because they refer to Article 13.
GR1 (Government): As I have stated, the applicant, despite his arguments on the civil nature of his right, did not even attempt to subject his claim to judicial review in order to obtain a court decision.
GR1 (Government): If he had done so, the civil or administrative court would have most probably rejected his claim, stating that it did not have jurisdiction to hear it.
GR1 (Government): Such a decision could have constituted a possible preliminary ruling for the purpose of lodging a constitutional complaint, raising the lack of access to a court.
GR1 (Government): The constitutional court would have examined whether this was constitutional or not.
GR1 (Government): Thus, regardless the court'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 an 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 situation would have been similar to that in the case of Bosch against Poland, already examined by the Strasbourg court.
GR1 (Government): The applicant's claim in that case were in the first place rejected by the Polish civil and administrative courts as inadmissible.
GR1 (Government): Once the Strasbourg court considered this to be incompatible with the right of access to a court, the Supreme Court reinterpreted the civil law and considered that the subject matter was under jurisdiction of the Polish civil court.
GR1 (Government): I have also mentioned that the NCJ itself could have lodged an application to the constitutional tribunal and questioned thereby constitutionality of the transitional provision of the 2017 amending act.
GR1 (Government): The NCJ was authorized to do so under article 191, paragraph 1.2 of the constitution,
GR1 (Government): also prior to the implementation of the aforementioned provision on 6 March, 2018.
GR1 (Government): The government does note that the applicant neither evades himself of the possibility to lodge a constitutional complaint with the constitutional tribunal, nor requested the NCJ, when he was still a member of the ROF, to do so.
GR1 (Government): As regards Judge Lemon's question with human rights or obligations, which human rights or obligations could the applicant raise under article 13 of the convention, the position of the government is consistent, none as there was no human rights in the meaning of the convention that was violated in the applicant's case.
GR1 (Government): As regards the question of President Spano, I have the honor to stress that in the Polish legal system, it is the constitutional court that is primarily tasked and competent to resolve issues regarding the constitutionality of law and relations between the constitutional authorities.
GR1 (Government): As regards the question of Judge Kuris regarding the methods of constitutional interpretation applied by the constitutional court in 2007, the following principles were used.
GR1 (Government): The principle of relying in the first place on the literal wording of the constitution.
GR1 (Government): Secondly, the principle of interpreting the law in favor of human rights and democracy.
GR1 (Government): Thirdly, the principle of systemic interpretation and interpreting the status in harmony with the constitution.
GR1 (Government): I should also, I would also like to underline that the Polish legal system does not foresee of the doctrine of star diseases, which is applied in the common court system countries.
GR1 (Government): That means that the Polish courts are not bound by the judgments of the previous, by the previous judgments and decide on the each case individually on the basis of the statement of facts and the law.
GR1 (Government): I will leave it here.
GR1 (Government): One more question.
GR1 (Government): I have one more question.
GR1 (Government): Which question was it?
GR1 (Government): And with respect to the question of Jad Sabato, I would like to start with stating that the 1997 constitution was adopted after a long debate and in a political situation incompatible to what we know today with the two leading parties on the political scene of Poland.
GR1 (Government): In this, I can just quote one of the article of 1997, that seven constitution, I mean, of one of the articles published in the newspaper, daily newspaper, that the draft of the new constitution is now ready.
GR1 (Government): The constitutional commission has completed the two and a half year stage of constitutional work.
GR1 (Government): It consisted in developing one text on the basis of seven projects.
GR1 (Government): As the chairman of MP, Marek Mazurkiewicz said, the proposal of the new constitution developed by the commission is of a Republican democratic character.
GR1 (Government): It provides for a parliamentary cabinet system of government.
GR1 (Government): The president's power are relatively smaller than the present one.
GR1 (Government): But the constitution assigns the president the role of an arbiter in the political system.
GR1 (Government): It would therefore play an essential role in the procedure of government formation in crisis situation and threats the country.
GR1 (Government): However, since it was deliberated in a very early period of the post-communistic system on the basis of seven different concepts, some space was left for the parliament to shape the Polish system of law.
GR1 (Government): That was made in respect of the prosecutor's office, no mention in the constitution, which left some space for the future Sejm and Senates to decide how to shape it.
GR1 (Government): That was made in respect of the self-government, as it was not clear whether to choose the two or the three levels of the self-government.
GR1 (Government): It was also clear that the ground level of the self-government would be a municipality.
GR1 (Government): And the same was made in respect of the mode of the election of the judge members of the NCJ.
GR1 (Government): And with respect to the question of the Judge Juksa, I would like to only refer to my statements, which I made previously and confirm that there is a huge difference, distinction between the board member of the, bureau member of the NCJ and the regular judge members to the pecuniary linkage.
GR1 (Government): And now allow me to come back to the final statement.
GR1 (Government): after having examined the statements made by the party and the third party interventions, the government disagree with the concept of using this case as exemplary in order to create a forum for criticizing various aspects of the judicial reform in Poland.
GR1 (Government): Both the applicant and various third parties emphasize the issue of the rule of law or the independence of courts and judges.
GR1 (Government): However, this does not deal with issues related to the guarantees of the independence of courts or the independence of judges.
GR1 (Government): In this regard, they believe that they already extensively explained the reasons behind the NCJ reform and the idea of its democratization.
GR1 (Government): Further, government wish to quote the statement of the United Nations Special Rapporteur on the independence of judges and lawyers, who has noted that in various reports, the Special Rapporteur has acknowledged that the power of the government to undertake reforms to the judiciary cannot be questioned.
GR1 (Government): It is undeniable fact that the judiciary requires to be modernized, strengthened, and subject to some reforms to address contemporary challenges and issues that currently affect the judicial power, operation and outcomes.
GR1 (Government): The government of the view that the case should be evaluated from the perspective of the individual application pending before the court, in particular, focused on the applicant's complaints regarding the lack of access to the court to contest the early termination of his term of office.
GR1 (Government): In this context, it should be also not overlooked that the temporary provisions also related to early termination of the term of office of judges are also accepted and applied at the international level.
GR1 (Government): Indeed, the term of office of certain judges was changed after the implementation of protocol 11 and 14 to the European Convention.
GR1 (Government): In the first case, the term of office was shortened and in the second was partially prolonged.
GR1 (Government): ladies and gentlemen, to sum up, the government of the Republic of Poland uphold the position that the present application should be considered incompatible with the Convention and inadmissible on the account of the lack of significant disadvantage on the part of the applicant and manifest the ill-founded character of the application.
GR1 (Government): Consequently, it should be rejected in accordance with Article 35, paragraph 4 on the Convention.
GR1 (Government): Otherwise, the government considered that there was no violation of Article 6, paragraph 1 and Article 13 of the Convention.
Robert Spano (JudgeP): Thank you very much, Mr. Sobczak, for your submissions.
Robert Spano (JudgeP): I now turn to the representatives of the applicant, Mr. Pietrzak.
AP2 (Applicant): With the permission of the court, Mr. President,
AP2 (Applicant): my colleague, Advocate Małgorzata Mączka-Pacholak, will commence and I will supplement her comments.
Robert Spano (JudgeP): Please proceed.
AP1 (Applicant): Thank you, Mr. President and members of the court. I will deal only with some of the questions
AP1 (Applicant): that have been asked by the court and then I will defer to my colleague, Advocate Pietrzak.
AP1 (Applicant): As regards the question asked by the Judge Lemons and the rules governing the expiry of the terms of office of the NCJ members, I would like to underline that the provision of the 2017 Amending Act changed the rules of expiring the terms of office of judges members of the NCJ. To keep it
AP1 (Applicant): simple, it was an extra basis for determination of term of office that has not been provided at the material time when the applicant was appointed as a judge member of the NCJ. As regards other
AP1 (Applicant): cases, when the terms of office of judges members of the NCJ could have been terminated, I would refer to Article 14, Section 1.5 of the Act on the NCJ. It says that it provides grants for the
AP1 (Applicant): expiry in case of expiry or termination of the judges services. This services relationship,
AP1 (Applicant): in my opinion, this would relate also to implementing disciplinary measures, including criminal convictions of a judge being a member of the NCJ at the relevant time.
AP1 (Applicant): Answering to the question of Judge Pavli, referring to the moral and financial aspect of the civil rights protector under Article 6 of the Convention, I would like to clarify that the per diem allowances, such as those were received by the applicant, are the very nature of the remuneration for work that has been performed. The national law clearly states that the entitlement
AP1 (Applicant): to a remuneration referred to as a per diem allowance is for performing certain functions in the state. As in the case of the members of the NCJ, per diem allowance are also paid to other
AP1 (Applicant): persons holding elected positions, including among others members of the Parliament, senators, senators, members of city councils and members of professional associations.
AP1 (Applicant): Article 26 of the Act on the NCJ clearly stipulates that members of the NCJ, in connection with performance of their duties in the NCJ, receive per diem allowances for each day of participation in plenary sessions or other work in the amount of 20% of the basis determining, and that's important, the basic salary of a judge and separately reimbursement of travel costs and expenses. I should also add that per diem allowances are relevant from the applicable
AP1 (Applicant): tax provisions and the applicant had to report them to fiscal authorities. And the allowances
AP1 (Applicant): that do not generate a strict profit or income remain their pecuniary character within the meaning of Article 6, Section 1 of the Convention. In terms of setting the balance between the private
AP1 (Applicant): and the pecuniary and non-pecuniary aspects of Article 6, I would refer to the Court's judgment in Bilgin v. Turkey, where the Court clearly stated that a public law dispute may bring the
AP1 (Applicant): civil limp into play if the private law aspects predominate over the public laws in view of the direct consequences for a civil pecuniary and non-pecuniary right. And lastly, I should
AP1 (Applicant): underline that we cannot equate public service with executing state power. NCJ members, just
AP1 (Applicant): like judges, are appointed for public service, not for state power. State power belongs to the bodies,
AP1 (Applicant): it belongs to the authorities, not to particular members or judges sitting on adjudicating panels.
AP1 (Applicant): They provide public service rather than holding a state power. And in this case, we deal with the
AP1 (Applicant): violation of the applicant's right under the Convention, where there is an autonomous meaning of the relationship. That does not have to be a classic employment meaning under domestic law
AP1 (Applicant): or under labor law. I would defer to my colleague. Thank you.
Robert Spano (JudgeP): Mr. Pietrzak?
AP2 (Applicant): Yes, we're experiencing a slight technical difficulty.