TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Once elected by the General Assembly of the judges of the Supreme Administrative Court, the applicant had a public, constitutionally guaranteed and a substantive right to serve his full four-year term of office as a judge member of the NCJ under domestic law.
AP1 (Applicant): This right is based on Article 60 of the Polish Constitution, guaranteeing individuals the right to access to public service on equal terms, read in conjunction with Article 187, Section 3 of the Polish Constitution, stating that the term of office of all elected members of the NCJ is four years.
AP1 (Applicant): The applicant's term of office was prematurely terminated halfway through in 2018 as a result of entry into force of the 2017 Amending Act.
AP1 (Applicant): It was the state's obligation to respect the applicant's right to serve his constitutional four-year term of office as a judge member of the NCJ.
AP1 (Applicant): Rephrasing the words of this court in the judgment delivered in Baca v. Hungary, Mr.
AP1 (Applicant): Grzenda's entitlement to serve his full term should be supported by constitutional principles regarding the independence of the judiciary, which in this case the NCJ was obliged to safeguard.
AP1 (Applicant): Jan Grzenda's right to serve his full four-year term of office had a civil character in the autonomous meaning of Article 6 of the Convention.
AP1 (Applicant): This case concerns the relationship between the applicant and the Polish state, which entrusted him with duties and obligations as a judge member of the NCJ.
AP1 (Applicant): It concerns the violation of the applicant's individual civil rights vis-à-vis the Polish state.
AP1 (Applicant): The civil character of Mr. Grzenda's right to serve the constitutionally guaranteed term
AP1 (Applicant): of office in the NCJ can be decoded in several dimensions.
AP1 (Applicant): Firstly, Mr. Grzenda's right to serve his full term of office was the fulfillment of
AP1 (Applicant): his oath as a judge in a personal, inner dimension.
AP1 (Applicant): Mr. Grzenda perceived his membership in the NCJ as the realization of his calling as a
AP1 (Applicant): judge, as his personal and his emotional contribution to defending the laws and the independence of the judiciary.
AP1 (Applicant): The premature shortening of his mandate amounted for him to a demonstration of disrespect.
AP1 (Applicant): If not a label of infamy, the narrative presented by government officials in the public debate with regard to the adoption of the 2017 Amending Act was that the method and the result of the process of electing judges to the NCJ was defective, was undemocratic, that the judges members of the NCJ weren't fit for their positions and did not deserve the public trust.
AP1 (Applicant): This narrative was misleading, was hurtful and false.
AP1 (Applicant): And secondly, having been appointed by his peers as a judge member of the NCJ, the applicant had a right to perform his professional duties throughout his full term of office.
AP1 (Applicant): The premature termination of his term of office deprived him of that possibility.
AP1 (Applicant): And finally, the civil character of the applicant's right to serve his full four-year term of office as a judge member of the NCJ had also a pecuniary dimension.
AP1 (Applicant): The applicant had received significant per diem allowances and reimbursement of costs and expenses for the performance of his official duties.
AP1 (Applicant): We believe that as a judge member of the NCJ, Mr. Jan Brzęda should be granted equal protection
AP1 (Applicant): reserved for judges and other civil servants on the grounds of Article 6 of the Convention.
AP1 (Applicant): According to the Eskalinian test, it is for the government to demonstrate firstly that a civil servant's rights of access to a court under national law was expressly excluded and secondly, that the exclusion of Article 6 rights for the civil servant was justified.
AP1 (Applicant): In the light of the arguments presented by the government, we would like to comment on the criteria laid down in the Eskalinian test.
AP1 (Applicant): Mr. Brzęda's term of office in the NCJ was cut short ex legge upon the entry into force
AP1 (Applicant): of the 2017 Amending Act.
AP1 (Applicant): At no point did the lawmaker consider granting the dismissed judge any avenue of appeal.
AP1 (Applicant): It was quite the opposite.
AP1 (Applicant): The intention of the 2017 Amending Act was to replace with immediate effect all of these 15 judges who were representatives of the judiciary with 15 other people elected by the Parliament who would instead be representatives of the political powers.
AP1 (Applicant): Although there existed no explicit regulations to this effect, Mr. Brzęda was deprived of
AP1 (Applicant): the possibility of challenging the premature termination of his term of office before a court or other judicial authority.
AP1 (Applicant): The shortening of Mr. Brzęda's term of office as a judge member of the NCJ without
AP1 (Applicant): the possibility of appealing to a court was not based on objective grounds in the state interest.
AP1 (Applicant): The adoption of the 2017 Amending Act was preceded by the judgment of the now politicized Constitutional Tribunal, issued with the participation of persons unauthorized to adjudicate or, as they are commonly referred to, double judges.
AP1 (Applicant): This judgment served as a false pretense for the executive and the governing majority to justify the purging of the NCJ and appointment of new judges members of this body.
AP1 (Applicant): The 2017 Amending Act was subject to far-going criticism by a number of domestic and international authorities, both during the legislative process and thereafter.
AP1 (Applicant): The exclusion of the applicant's right to access to a court for determination of his civil rights was not justified.
AP1 (Applicant): The rationale behind this legislation that shortened his term of office did not serve to achieve the declared goal of democratization of the judiciary.
AP1 (Applicant): It served a real but thinly-veiled goal to subjugate the NCJ and thereby the judiciary to the legislative and executive powers under the control of one political formation.
AP1 (Applicant): The 2017 Amending Act, together with the other legislation reforming the judiciary, dismantled the system of checks and balances of the Polish state, the independence of the judiciary, and the stability of the Polish legal system.
AP1 (Applicant): The Court's question on the relevance of the fact that the applicant's case, membership in the NCJ, a constitutional body charged with safeguarding the independence of the judiciary, is crucial for the assessment of the objectivity of the interest of the state the 2017 Amending Act was aimed to pursue.
AP1 (Applicant): It is impossible to identify a genuine, objective, and legitimate aim in the state interest that would justify the exclusion of Mr. Grzenda's right to a court.
AP1 (Applicant): The exclusion of the applicant's right to a court was clearly incompatible with the rule of law principle.
AP1 (Applicant): As Mr. Grzenda's term of office was cut short ex lega, he had at his disposal no domestic
AP1 (Applicant): remedies, in particular appropriate or effective remedies, to challenge the violation of his rights.
AP1 (Applicant): Jan Grzenda could not submit an individual constitutional complaint.
AP1 (Applicant): There were no procedures that would allow him to petition the constitutional tribunal.
AP1 (Applicant): But also, Mr. Grzenda as an individual had no power to submit an application for abstract
AP1 (Applicant): constitutional review.
AP1 (Applicant): The fact that the NCJ has the capacity to file such an application for abstract constitutional review does not mean that Mr. Grzenda could have done so.
AP1 (Applicant): Firstly, the NCJ is a separate entity from any individual person, including the members of the NCJ.
AP1 (Applicant): And secondly, Mr. Grzenda as a member of the NCJ could not initiate or decide upon filing
AP1 (Applicant): by the NCJ of an application to a constitutional tribunal.
AP1 (Applicant): He would in fact have to remit himself from that decision-making process as the outcome would have concerned his own legal situation.
AP1 (Applicant): What's more, at the relevant time, which is the time when he was seeking access to a court and looking for an effective remedy, he was no longer a member of the NCJ because his mandate had been extinguished by the 2017 Amending Act.
AP1 (Applicant): The 2017 Amending Act was one of the crucial acts of legislation that undermined the rule of law and the system of checks and balances in Poland over the last years.
AP1 (Applicant): The undemocratic and short-sighted reference of the judiciary resulted also in violation of rights of persons who were in their official capacities engaged to the betterment of the Polish state and the protection of the rule of law.
AP1 (Applicant): Today we respectfully request the Honourable Court to acknowledge the violation of Mr.
AP1 (Applicant): Grzenda's Convention Rights, manifested in shortening of his constitutionally guaranteed term of office in the NCJ with no right to appeal, and to remedy this wrongdoing in such a way as to send a clear message of support for the rule of law and the independence of the judiciary.
Robert Spano (JudgeP): Thank you very much indeed to the representatives of the applicants.
Robert Spano (JudgeP): I also confirm that both video and audio were adequate throughout.
Robert Spano (JudgeP): I now turn to the third party intervener, the Commissioner of Human Rights of the Republic of Poland, Mr. Filipek.
TP1 (ThirdParty): Thank you, President, distinguished members of the Court.
TP1 (ThirdParty): The Commissioner for Human Rights welcomes the Court's decision to give priority to applications concerning changes in the Polish judicial system and to consider them as a matter of urgency.
TP1 (ThirdParty): Indeed, time is of essence to stop and reverse unlawful changes in the judiciary and bring the situation back into line with the rule of law standards of Polish Constitution, Convention and EU law.
TP1 (ThirdParty): Although this case is, in concreto, an individual application, it relates to issues of the highest systemic importance.
TP1 (ThirdParty): The changes in the National Council of the Judiciary, henceforth the Council, that affected the applicant and subsequent actions taken by domestic bodies have undermined the separation of powers and credibility of judicial nomination procedures.
TP1 (ThirdParty): They have impeded effectiveness of judicial review and weakened the protection of human rights.
TP1 (ThirdParty): When considering this case, the Court will necessarily be reflecting on judicial independence as basic premise for the rule of law, from which the whole Convention draws inspiration and which is inherent in all the articles of the Convention.
TP1 (ThirdParty): I respectfully submit, on behalf of the Commissioner for Human Rights, four specific points for your consideration.
TP1 (ThirdParty): My first point refers to the need to ensure Council Judge members' protection against arbitrary removal.
TP1 (ThirdParty): The protection of Council Judge members should be derived first from their status as judges as such and second from the crucial function which the Constitution entrusts to the Council.
TP1 (ThirdParty): This protection should be equivalent to the protection against removal offered to adjudicating judges.
TP1 (ThirdParty): The following elements should, we submit, be jointly taken into account.
TP1 (ThirdParty): The Council has been entrusted with the role of guaranteeing the independence of courts and judges.
TP1 (ThirdParty): Hence, the status of this body and of its members must ensure that it is capable of carrying out this mission.
TP1 (ThirdParty): This has been also articulated in the rulings of the Court of Justice of the European Union, in particular in the AK judgment, paragraph 138 and subsequent, the independence of Supreme Court judgment, para 116, and the suspension decision of the disciplinary chamber of the Supreme Court, para 69 and subsequent.
TP1 (ThirdParty): The Constitution requires that the majority of Council members be judges to ensure that persons with attributes of independence have a decisive say in it.
TP1 (ThirdParty): For this reason, judges' independence should equally be guaranteed within the Council.
TP1 (ThirdParty): The Council directly influences the status of judges.
TP1 (ThirdParty): It nominates for judicial positions.
TP1 (ThirdParty): It participates in judges' promotion, dismissal, and early retirement.
TP1 (ThirdParty): It is therefore essential that there is no gap in the protection of judicial independence at this juncture of the State's structure.
TP1 (ThirdParty): The independence of judges must be absolute.
TP1 (ThirdParty): It must not be interfered with under any circumstances.
TP1 (ThirdParty): The independence of judges is also indivisible.
TP1 (ThirdParty): Office holders should be protected in all situations of public activity to which they are assigned as judges.
TP1 (ThirdParty): It cannot be assumed that before noon, while adjudicating, a judge is independent, while in the afternoon, when carrying out other public tasks, yet also as a judge, he or she may be subject to pressure or external influence.
TP1 (ThirdParty): Were this to occur, participation in the Council of judges would have no added value.
TP1 (ThirdParty): And the basic premise upon which the notion of a judicial council is founded would be undermined.
TP1 (ThirdParty): It is therefore clear that judge members should not have been removed in the first place.
TP1 (ThirdParty): Yet this has happened.
TP1 (ThirdParty): And this leads on to my second point.
TP1 (ThirdParty): A judge member must have access to a court to challenge the premature termination of his or her mandate.
TP1 (ThirdParty): Under national law, judicial members of the Council enjoy a constitutionally guaranteed right to set a four-year term.
TP1 (ThirdParty): This four-year term can only be terminated on the grounds set out in the law at the time of the election.
TP1 (ThirdParty): The legislature cannot, during the ongoing term of office, introduce new grounds for premature interruption of tenure, which would result in retroactive annulment of the right to a full term, as indicated in Baga, Judgment, paragraph 110.
TP1 (ThirdParty): Yet this is exactly what happened in Poland.
TP1 (ThirdParty): The mandate of judge members was terminated by a legislative amendment in 2018.
TP1 (ThirdParty): It produced ex lega effect and prevented them from having access to judicial review.
TP1 (ThirdParty): This cannot be reconciled with your court's case law.
TP1 (ThirdParty): For example, as indicated in paragraph 114 in the Kvesny case.
TP1 (ThirdParty): My third point concerns the role of the defective, partially captured constitutional tribunal.
TP1 (ThirdParty): The government seeks to justify changes to the Council by invoking a ruling of the Constitutional Tribunal of 2017, case K5-17, confirmed in 2019, case K12-18.
TP1 (ThirdParty): This argument should be rejected and the rulings disregarded.
TP1 (ThirdParty): The current Constitutional Tribunal does not offer a genuine constitutional review of the law.
TP1 (ThirdParty): Instead it is used to legitimize action of national authorities which are in breach of the Constitution.
TP1 (ThirdParty): It departs from previous rulings with no real justification.
TP1 (ThirdParty): Both rulings involve persons appointed in manifest violation of the Constitution, who are unlawfully appointed to positions that have not been vacant.
TP1 (ThirdParty): This alone disqualifies these rulings.
TP1 (ThirdParty): Your court has already held in Xerof law that participation of such a person in the adjudicating panel violated Article 6 of the Convention, since such a body was not established by law.
TP1 (ThirdParty): My fourth point addresses the consequences of changes made to the Council in 2018.
TP1 (ThirdParty): The Constitution specifies that although the Council is composed of representatives of all three branches of government, the judiciary forms a large majority within it.
TP1 (ThirdParty): 17 out of 25 seats are for judges, and 15 judge members are elected by their peers.
TP1 (ThirdParty): This was confirmed by the Constitutional Tribunal in 2007, case K25-7.
TP1 (ThirdParty): The premature termination of the Council's term of office and the election of new judge members no longer by judges but instead by the same was a manifest breach of the Constitution.
TP1 (ThirdParty): This is not only the Commissioner's assessment.
TP1 (ThirdParty): It has been jurisprudentially confirmed by the Polish Supreme Court.
TP1 (ThirdParty): Indeed, the Court of Justice of the European Union, in two consecutive judgments, pointed to these changes as relevant circumstances assessing the Council's independence.
TP1 (ThirdParty): AK judgment para 143 as confirmed in its AB judgment of 2 March this year para 131.
TP1 (ThirdParty): These conclusions were also shared by the Supreme Administrative Court in its recent rulings of 6 May 2021.
TP1 (ThirdParty): The Court overturned the controversial resolution of 28 August 2018 in the part in which the new Council recommended appointments to the Supreme Court.
TP1 (ThirdParty): These changes in the Council's composition are widely considered unconstitutional.
TP1 (ThirdParty): Yet these very changes give the ruling majority capacity to reconstitute the Council's composition at will so as to influence the judicial appointment procedure and grant it de facto, the ruling party, a discretionary power to appoint judges in Poland.
TP1 (ThirdParty): As a consequence, the political majority has been able to influence the content of judicial decision in a part of the Polish judiciary.
TP1 (ThirdParty): The ultimate goal appears to be, first, to exclude any genuine review of the actions of the ruling majority, secondly, to protect arbitrary decisions of the government.
TP1 (ThirdParty): In the context of nominations to the Supreme Court, Advocate General Tamczew one month ago concluded in his opinion that the act of appointment by the President of the Republic following a defective procedure before the new Council constituted a flagrant, deliberate breach of law.
TP1 (ThirdParty): Moreover, in a series of decisions of 15 July 2020, the Supreme Court itself characterized the new appointment practice of the Council and the President as, and I quote, a special transfer window in the Polish legal system when the appointments to serve in the Supreme Court were handed out in flagrant and manifest violation of the constitutional standard and in full awareness of all parties' concerns.
TP1 (ThirdParty): My concluding remarks on behalf of the Commissioner for Human Rights, I wish to make three short submissions.
TP1 (ThirdParty): First, the proper functioning of the domestic justice system necessitates independence and objectivity of the Council.
TP1 (ThirdParty): Crucial for the fulfillment of the Council's mission is the participation of independent judges who must be guaranteed adequate legal protection in the exercise of their function within the body for the entire term for which they were elected.
TP1 (ThirdParty): Second, the early termination in 2018 of the term of office of the then judicial members of the Council was an aberration of this general principle.
TP1 (ThirdParty): The methodology already adopted by the Court of Justice of the European Union, namely the cumulative assessment of all relevant circumstances, see AK judgment para 152, and the identification of true aims of the ruling majority, see AB judgment para 138, and independence of the Supreme Court judgment para 87, reveal the full picture.
TP1 (ThirdParty): The changes in the Council in 2018 were indeed part of a planned strategy to take control of the process of appointing judges and by so doing influence the content of judicial decisions.
TP1 (ThirdParty): Third, the set changes violated the Constitution and created a permanent state of unlawfulness, undermining all acts of the Council, including judicial nominations.
TP1 (ThirdParty): Attempts to legitimize the changes with rulings of the Constitutional Tribunal remain ineffective.
TP1 (ThirdParty): The Tribunal rendered them in an unlawful composition and indeed the Tribunal itself has abdicated its function in upholding the Constitution.
TP1 (ThirdParty): I thank the members of the Court for their attention.
Robert Spano (JudgeP): Thank you very much, Mr. Filipek.
Robert Spano (JudgeP): Again, I confirm that video and audio were fine.
Robert Spano (JudgeP): I now turn to my colleagues on the bench for questions to the parties.
Paul Lemmens (Judge): I have questions to both parties.
Paul Lemmens (Judge): One question about the situation that has nothing to do with the Section 6 of the Act of 2017.
Paul Lemmens (Judge): The second question is specifically about the situation created by Section 6 of that Act.
Paul Lemmens (Judge): The first situations before and after the amending Act.
Paul Lemmens (Judge): And I would like to know more about the possibilities for the premature termination of the mandate of a member of the National Council of the Judiciary.
Paul Lemmens (Judge): What are the grounds for a premature termination?
Paul Lemmens (Judge): There are a number of grounds that are listed in the Act.
Paul Lemmens (Judge): I know them.
Paul Lemmens (Judge): But I'm wondering whether there are possibilities for other, whether there are other grounds for termination relating, for instance, to the fact that the member is not actively participating or that he has been convicted for a crime or something else.
Paul Lemmens (Judge): Are there possibilities for a premature termination based on an explicit decision to be taken?
Paul Lemmens (Judge): And if so, who would take such a decision?
Paul Lemmens (Judge): And would there be a possibility for a member of the NCJ to contest such a decision before it has been taken and or after it has been taken?
Paul Lemmens (Judge): So I would like to know how that was before the Section 6 Act, before the Act of 2017, and also how it is now.
Paul Lemmens (Judge): Maybe it's the same situation.
Paul Lemmens (Judge): Secondly, Section 6 of the Act of 2017 terminates Mr. Grzęda's term of office and of his colleagues' Ekslege.
Paul Lemmens (Judge): The applicant twice stated and very clearly here before us that there was no possibility to challenge this provision before the Constitutional Court.
Paul Lemmens (Judge): And I would like to ask the government whether the government fully agrees with that statement.
Paul Lemmens (Judge): And I have another question relating to this Section 6 of the Act of 2017.
Paul Lemmens (Judge): We have heard a lot about the applicability of Article 6, paragraph 1.
Paul Lemmens (Judge): We have heard that for the applicant, there was a dispute about the unconstitutionality of the Act.
Paul Lemmens (Judge): The applicant states that the Act violated the Article 6 and 187 of the Constitution.
Paul Lemmens (Judge): He also states that there was a civil right, a right to serve a mandate for four years.
Paul Lemmens (Judge): All that I understand, and my question is not about that.
Paul Lemmens (Judge): But there is also a complaint about Article 13.
Paul Lemmens (Judge): And here I would like to know what is the alleged violation of the applicant's rights and freedoms as set forth in the Convention.
Paul Lemmens (Judge): In other words, from the point of view of Article 13, we are not dealing with civil rights anymore.
Paul Lemmens (Judge): What are the rights and freedoms that the applicant would have invoked?
Paul Lemmens (Judge): And how would these rights and freedoms exactly have been violated by the Act?
Robert Spano (JudgeP): Thank you very much. Judge Yüksel.
Saadet Yüksel (Judge): In your observations and presentation, you state that the exclusion of the members of the NCJ from the right of access to a court is systematically corroborated on the ground of the act, the acting question.
Saadet Yüksel (Judge): And you provide examples regarding the permanent members of the Council's Bureau.