TrustHLT/LaCour huggingface dataset:
GR1 (Government): Consequently, the law of the Supreme Court regulating specifically the first president's status and working and pay conditions, as well as the labor code as a general source of law, are both applicable to a person appointed as first president of the Polish Supreme Court.
GR1 (Government): The judges of the Supreme Court, including the first president, unlike the members of the NCJ, are entitled to a number of rights.
GR1 (Government): The law determines the basic remuneration.
GR1 (Government): A special duty allowance is paid to holders of certain positions at the Supreme Court.
GR1 (Government): They are entitled to a seniority allowance and to a long service bonus, to 12 extra days of annual leave, and to a paid six months health recovery leave.
GR1 (Government): On retirement, the end of service bonus is rewarded.
GR1 (Government): In light of the foregoing, the government submitted the case at stake should be distinguished from the case of Baca against Hungary, in that the applicant's situation as a member of the NCJ did not reveal any civil character.
GR1 (Government): Also, in contrast to the Baca case, the applicant's exclusion from the right to access to a court in the capacity as the NCJ's member did not touch upon his status as judge of the Supreme Administrative Court and his presidential function.
GR1 (Government): To conclude, civil rights do not concern members of the NCJ since being a member of the NCJ pertains in Poland exclusively to the sphere of exercise of the public authority and does not amount under the Polish law to employment.
GR1 (Government): The status of the NCJ member on public law nature of the mandate has never been questioned, both under the 2011 and 2017 NCJ Act.
GR1 (Government): Therefore, it should be concluded that the national law excluded access to a court for an individual claim based on the alleged unlawfulness of the termination of the applicant's mandate.
GR1 (Government): The first condition of the Eskalinan test has therefore been met.
GR1 (Government): Now, I would like to move on to the second condition of the Eskalinan test, that means the justification of the applicant's exclusion from the right to a court.
GR1 (Government): In the circumstances of the present case, the government considers that the applicant's exclusion from his right to access to a court was justified on objective grounds in the public interest.
GR1 (Government): In this context, I would like to note that the subject matter of the applicant's complaint relates exclusively to the exercise of state power, acta iure imperii.
GR1 (Government): This function does not result in any contractual obligation of paying a salary in exchange for any work performed and does not have any other features of employment.
GR1 (Government): The government recalled that the right to a court had been excluded for the above reasons already, and even before the impugned amendment was introduced in 2017.
GR1 (Government): As regards the justification of the amendments introduced in 2017 and on the early termination of the applicant's term of office, the government wished to note the following.
GR1 (Government): Firstly, the amendments made to the method of electing members of the NCJ and termination of the mandate established prior to this amendment were legitimate since they aimed at bringing the election into line with the relevant provisions of the Constitution, as interpreted by the Constitutional Tribunal in the 2017 judgment.
GR1 (Government): The primary aim of the changes was to depart from the practice of individual terms of office of the NCJ's members elected from among the judges that was found to be unconstitutional.
GR1 (Government): The Constitutional Tribunal found that judicial members of the NCJ should be elected for a joint four-year term of office.
GR1 (Government): The amendments fell within the ambit of the legislators' margin of appreciation, limited only by the constitutional provisions pertaining to the NCJ.
GR1 (Government): The Constitution provides for an election of judge members of the NCJ from among judges, yet it does not determine who should elect these judges and how they should be elected.
GR1 (Government): There is no mention of the modalities of the election of judges of the NCJ. These modalities are to be regulated by an Act as envisaged in Article 187, paragraph 4 of the Constitution.
GR1 (Government): As regards who should elect the NCJ, in case of the deputies and senators members of the NCJ, the Constitution clearly stipulates that they should be elected by the same and the Senate respectively.
GR1 (Government): Yet the Constitution does not contain any precise provision with reference to who should elect the judges members of the NCJ.
GR1 (Government): Although the election performed by the representatives of the judiciary is not disqualified, yet a position that the judges assemblies are the only competent electoral bodies is unsubstantiated on the ground of the Polish Constitution.
GR1 (Government): The Constitution does not provide for any particular way of electing judges to the NCJ. The constitutional lawmaker consciously left it to the regulation at the level of a statute.
GR1 (Government): It is legitimate, therefore, that this question should be regulated within the limits of the legislators' margin of appreciation.
GR1 (Government): Nevertheless, the Constitution let down a certain minimum of the fundamental safeguards.
GR1 (Government): Article 187, paragraph 3 of the Constitution provides that the term of elected members of the NCJ shall last four years.
GR1 (Government): The expression elected members undoubtedly refers to 15 members elected from among judges, as well as to four members elected by the same from among the deputies and two members elected by the Senate from among the senators.
GR1 (Government): In accordance with the Directive on Linguistic Interpretation, like a non-distinctwante neg nostrum est distinguere, the lawmaker should treat the term of office of both groups of elected members of the NCJ without discrimination.
GR1 (Government): Therefore, the assumption that only the terms of office of elected judges members of the Council are individual should be considered unconstitutional.
GR1 (Government): The regulation on the early termination of the term of office in question was exceptional and transitional, as it aimed at the suppression of the unconstitutional practice of individual term of office.
GR1 (Government): Against this background, the government considered that the early termination in the applicant's case did not exceed the margin of appreciation vested in the Polish lawmaker.
GR1 (Government): The government also recalled that imposing new obligation or restrictions of persons enjoying the mandate during the term of office is generally not forbidden in accordance with the Constitutional Tribunal's case law dating back to the judgment of 2007.
GR1 (Government): Moreover, the reform at stake aimed at the democratization of the electoral procedure to the NCJ and extended the application of the rule of a democratic state of law in Poland as envisaged in Article 2 of the Constitution.
GR1 (Government): In this context, the provision of Article 6 of the 2017 Amending Act was of an exceptional and transitional character.
GR1 (Government): In view of the significance of the changes at the stake, the Polish legislator decided that the terms of office of the NCJ's members elected on the basis of the previous provisions should expire by virtue of law.
GR1 (Government): As such, this option did not contravene the constitutional rule of a full term of office itself and was proportionate to the far-reaching changes into the method of election of the NCJ's members.
GR1 (Government): The amendments at stake aimed at the democratization of the electoral procedure.
GR1 (Government): And, as explained above, no individual human rights or interests of the applicant or other members of the NCJ concerned could be identified in the present case that should have been taken into consideration in the balancing exercise.
GR1 (Government): The democratization of the NCJ constituted an undoubtedly important public interest, which in turn constituted a premise justifying early termination of the term of office of the judicial members of the NCJ.
GR1 (Government): In view of the unequal beginning of the terms of office of these members that occurred on the basis of unconstitutional practice, it was not possible to avoid early termination of the mandates or to leave this matter to individual rulings of courts in respect of each and every member of the NCJ concerned.
GR1 (Government): In any event, the amended NCJ Act did not deprive its so far members of a possibility to apply for re-election.
GR1 (Government): In light of the foregoing, it should be concluded that the applicant's exclusion from access to a court was justified on objective grounds in the state's interest.
GR1 (Government): Consequently, both criteria set out in the Eskalin and Test have been met.
GR1 (Government): Mr. President, distinguished members of the court, ladies and gentlemen, to sum up, the government of the Republic of Poland upholds their position that the present application should be considered incompatible with the Convention
GR1 (Government): and inadmissible on the account of the lack of significant disadvantage on the part of the applicant and manifestly ill-founded character of the application.
GR1 (Government): Consequently, it should be rejected in accordance with Article 35, Paragraph 4 of the Convention.
GR1 (Government): Alternatively, the government submit that no violation of Article 6, Paragraph 1 and 13 of the Convention occurred in the present case.
Robert Spano (JudgeP): Thank you, Mr. Sobczak.
Robert Spano (JudgeP): I confirm that both video and audio were fine throughout, and your remarks have been noted.
Robert Spano (JudgeP): I now turn to the representatives of the applicant.
Robert Spano (JudgeP): Mr. Pietrzak, you have the floor.
AP2 (Applicant): it is a great honor to appear before the Grand Chamber of the European Court of Human Rights representing Mr. Jan Grzenda, who is here with me today,
AP2 (Applicant): in a case which we believe is pivotal not only for the rights of the applicant himself, but for the respect of rule of law throughout the Council of Europe member states.
AP2 (Applicant): Mr. Jan Grzenda is a renowned and greatly respected
AP2 (Applicant): Supreme Administrative Court judge.
AP2 (Applicant): He has devoted his life to the betterment of the Polish state, to strengthening the effectiveness and independence of the judiciary, and thereby the effective protection of rights and freedoms in Poland.
AP2 (Applicant): It was this path and these values that led to his appointment in 2016 as a member of the National Council of the Judiciary, which I will refer to today using the abbreviation NCJ.
AP2 (Applicant): This is a constitutional body established to safeguard the independence of the judiciary.
AP2 (Applicant): During the roundtable discussions following the downfall of communism, the founders of our republic understood that in order for democracy to survive and flourish, the courts must be protected from pressure by the executive and legislative powers.
AP2 (Applicant): Mr. Jan Grzenda was appointed to this role
AP2 (Applicant): not by the executive or legislative branches of government, but by his peers, the General Assembly of Judges of the Supreme Administrative Court as their representative in the NCJ.
AP2 (Applicant): Upon his appointment, he expected to serve the public, the state, and the judiciary in this capacity for a four-year term as provided in the Constitution of Poland.
AP2 (Applicant): He viewed this role as an extension of his service as a judge with a view to protecting the principles and values which underlie the judicial profession, rule of law, independence of the judiciary, protection of human rights, and fundamental freedoms.
AP2 (Applicant): But on March 6, 2018, his term, along with the term of 14 other constitutionally and legitimately appointed members of the NCJ, was cut short ex legge as a result of a law passed by Parliament amending the Act on the National Council of Judiciary.
AP2 (Applicant): We refer to this law in our written pleadings and today as the 2017 Amending Act.
AP2 (Applicant): This law was not, as a parliamentary law should be, of an abstract and general normative nature.
AP2 (Applicant): It was intended and drafted as to bring about a singular effect regarding 15 specific people, that is, to remove 15 specific judges from the NCJ and enable the Parliament to fill that void with people who would cooperate with the judicial reform.
AP2 (Applicant): This was stated expressly by the Minister of Justice, ex post, before the Senate on January 15, 2020.
AP2 (Applicant): This law was tailored to create a politically subservient NCJ, incapable of safeguarding the independence of the judiciary.
AP2 (Applicant): This dismissal from the NCJ shattered Mr.
AP2 (Applicant): Grenda's dreams of professional fulfillment and felt like a slap in the face, given the devotion and dedication he had shown on his path as a judge and a public servant.
AP2 (Applicant): It violated his right to serve his term in accordance with the Constitution.
AP2 (Applicant): The dismissal before the elapse of his constitutionally mandated term suggested he had somehow violated the trust of the state and the judicial community that they had placed in him when he was appointed to the NCJ.
AP2 (Applicant): It was not only unconstitutional, it was insulting both to Mr.
AP2 (Applicant): Grenda and the Supreme Administrative Court judges who had selected him from amongst their midst to represent them in the NCJ.
AP2 (Applicant): Now, Polish law did not provide him with any instrument to challenge the termination of his mandate.
AP2 (Applicant): He could not question this termination before any court, civil, administrative, criminal, or constitutional.
AP2 (Applicant): Now, to be clear, the premature termination of his constitutional mandate was personally crushing for Mr.
AP2 (Applicant): Grenda.
AP2 (Applicant): So if he could have filed any form of complaint against the dismissal to a court in Poland, he surely would have done so.
AP2 (Applicant): This utter failure of the Polish state to provide access to a court in protection of his civil rights or any remedy to counteract the injustice he faced as a result of the amending act of 2017 led him to file an application to the European Court of Human Rights.
AP2 (Applicant): The lack of access to a court or to any other domestic instrument to verify the legality and proportionality of the termination of Mr.
AP2 (Applicant): Grenda's mandate constitute a violation of his right to a fair trial, most specifically, access to a court for the determination of his civil rights, and a violation of the right to an effective remedy, as they are enshrined, respectively, in Articles 6, Section 1, and Article 13 of the European Convention on Human Rights.
AP2 (Applicant): Polish law provided Mr.
AP2 (Applicant): Grenda with a civil right to fulfill his mandate as a member of the NCJ and to serve out his entire four-year term in this capacity.
AP2 (Applicant): This right stems from the joint interpretation of Article 60 of the Polish Constitution, which ensures all Polish citizens access to public office, including the NCJ, on equal terms, and Article 187, Section 3 of the Polish Constitution, which establishes a four-year mandate for NCJ members and prohibits their earlier arbitrary dismissal.
AP2 (Applicant): Now, his constitutionally protected four-year term of office was shortened in violation of the constitutional norms which guaranteed that he should serve his term of public office on the same conditions as other judges who preceded him as NCJ members and whose mandates had not been cut short by an instrumental act of Parliament.
AP2 (Applicant): We are dealing here not only with systemic norms of the Constitution regarding, for example, mutual relations between state powers and state bodies, but with norms establishing individual rights, in this case, a civil right as understood in Article 6, Section 1 of the Convention.
AP2 (Applicant): This is perhaps best illustrated by the fact that Article 60 of the Polish Constitution, which I have just spoken of, is in fact part of the second chapter of the Constitution entitled, Human and Civic Freedoms, Rights and Duties.
AP2 (Applicant): Now, these violations directly concern Mr.
AP2 (Applicant): Grzenda's rights and indirectly the rights of all other 14 judges whose mandates were arbitrarily and prematurely terminated by the 2017 Amending Act.
AP2 (Applicant): However, the removal of Mr. Jan Grzenda
AP2 (Applicant): and his esteemed colleagues from the NCJ before the elapse of their terms was merely one step, although a critical one on a path of planned and systemic dismantling by the legislative and executive powers in Poland of the rule of law, the democratic separation of powers, the system of checks and balances, and particularly the independence of the judiciary.
AP2 (Applicant): These violations had a far-reaching impact on the rights and freedoms of all Poles and other people subject to judicial power in Poland by undermining judicial independence and thereby weakening fair trial rights and the procedural aspect of all rights and freedoms enshrined in the Convention, which obviously require an independent court in order to be adequately safeguarded.
AP2 (Applicant): So the proper assessment of Mr. Grzenda's application
AP2 (Applicant): and the violation of his rights requires seeing them in the context of the process of dismantling of the rule of law in Poland.
AP2 (Applicant): This process started in 2015 with the refusal by President Andrzej Duda to accept the oath from three constitutional court judges legitimately elected by the previous parliament.
AP2 (Applicant): The newly elected parliament elected three judges, commonly referred to as double judges, if you will, to fill the judicial places already occupied by the judges legitimately chosen by the parliament in the previous parliamentary term.
AP2 (Applicant): These three double judges then took part in issuing many constitutional tribunal rulings further undermining the rule of law and judicial independence rather than acting as a countermeasure, as the constitutional court should, to unconstitutional reforms.
AP2 (Applicant): This includes the constitutional tribunal rulings invoked by the government in this case in the written pleadings and today to support their argumentation.
AP2 (Applicant): The European Court of Human Rights recently stated in Xeroflor against Poland that a constitutional tribunal judgment issued with the participation of these double judges cannot be considered to have been issued by a tribunal established by law.
AP2 (Applicant): In 2016, the government refused to publish judgments of the legitimate constitutional tribunal, which were critical of legislature aimed at introducing these double judges and aimed at paralyzing the work of the constitutional tribunal itself.
AP2 (Applicant): This opened the door to further violations of rule of law because it eliminated the constitutional tribunal as a robust, legitimate, and independent constitutional control mechanism.
AP2 (Applicant): It made it possible to pass laws further weakening the independence of the judiciary, laws which never would have passed a legitimate constitutional review by an independent constitutional tribunal.
AP2 (Applicant): One of the very first laws passed in these circumstances was the 2017 Amending Act, which once again purged an NCJ of 15 of its members appointed by the judicial community and made it possible to stack the entire NCJ with politically obedient members selected by one political formation.
AP2 (Applicant): The 2017 Amending Act effectively gave the legislative power monopolistic control over the NCJ, a body whose very purpose was to serve as a safeguard for the judiciary against excessive influence of the legislative or executive powers.
AP2 (Applicant): This guaranteed that the NCJ would vocally support all further reforms aimed at weakening the judiciary rather than criticize such reforms as its true constitutional role would dictate.
AP2 (Applicant): A law was also passed allowing the Minister of Justice to arbitrarily dismiss the presidents of courts and heads of court divisions and single-handedly appoint new judges in their place, giving the Minister of Justice great control over the day-to-day functioning of the courts and significantly impacting their independence once again.
AP2 (Applicant): This was followed in late 2017 with the law establishing two new chambers of the Supreme Court, most notably disciplinary chamber, which was granted extensive disciplinary powers against judges, prosecutors, and lawyers.
AP2 (Applicant): The newly purged and now politically influenced NCJ, from which Mr. Grzenda had just been removed,
AP2 (Applicant): selected hand-in-hand with the president all the new judges of the disciplinary chamber.
AP2 (Applicant): The same law of 2017 empowered the Minister of Justice to single-handedly appoint a centralized, politically controlled judicial disciplinary prosecutor and his two deputies.
AP2 (Applicant): We have now seen many disciplinary proceedings initiated by a politically appointed disciplinary prosecutor and conducted before a politically influenced disciplinary chamber used to target judges who have spoken out or made judicial decisions critical of the reforms.
AP2 (Applicant): Now, the potential for disciplinary repressions was strengthened by the introduction of what is commonly referred to as the Muzzle Law.
AP2 (Applicant): This law, in fact, made it a disciplinary offense for a judge to send a rogatory to the Court of Justice of the European Union concerning judicial independence.
AP2 (Applicant): The new NCJ, of which Mr. Grzenda and his colleagues
AP2 (Applicant): were no longer members, did not once object to any of these new measures, even though they were manifestly detrimental to the independence of the judiciary.
AP2 (Applicant): So it is against this backdrop of illiberal democratic backsliding, in this context of undermining of the independence of the judiciary, dismantling of the system of checks and balances, and the continued deterioration of the procedural protection of rights and freedoms in Poland, that the Grand Chamber faces the task of addressing the violations of Mr. Grzenda's rights.
AP2 (Applicant): These violations not only targeted Mr. Grzenda
AP2 (Applicant): and his fellow judges, who were dismissed from the NCJ, but also served to subjugate the NCJ to the legislative power and were a critical step in furthering the methodically planned disassembling of the rule of law in Poland.
AP2 (Applicant): If it pleases the Court, I will now defer to my colleague, Advocate Małgorzata Mączka-Pacholak, to further address the issues specifically raised by the Court in questions to the parties.
Robert Spano (JudgeP): Please, madam, you have the floor.
AP1 (Applicant): Mr. President, members of the court, it is my greatest honor to appear before the Grand
AP1 (Applicant): Chamber of the European Court of Human Rights, representing Mr. Jan Brzęda.
AP1 (Applicant): I would like now to address the issues raised by the court and questions to the parties.
AP1 (Applicant): One of the questions raised by the court concerns the relevance of the fact that the applicant's case concerns a member of the National Council of the Judiciary.
AP1 (Applicant): We believe that the answer to this question is the key in assessing the violation of the applicant's rights.
AP1 (Applicant): It also places this case in the context of systemic violations of the rule of law in Poland.
AP1 (Applicant): The relevance of the fact that the present case concerns a member of a constitutional body charged with safeguarding judicial independence is reflected in answers to all of the questions posed by the court.