A Polish judge who was a member of the Polish National Council of the Judiciary (NCJ) has had his term cut short based on the controversial law adopted in December 2017 that introduced new rules on the election of the 15 members of the NCJ. The judge has complained that he has been unable to exercise his right to a court hearing while seeking remedy against the termination.

Judge makes complaint after all 15 NCJ members removed

The applicant, Jan Grzęda, is a judge of the Supreme Administrative Court. In January 2016, he was elected a member of the National Council of the Judiciary. According to the Constitution, his term of office should have lasted for four years, but in December 2017, the Polish parliament, or Sejm, passed a law which terminated the mandate of all 15 judges sitting on the NCJ. The legislators justified this step by citing the need to implement the judgement of the Constitutional Tribunal of 20 June 2017, which had ruled that the provisions setting out the rules of electing NCJ members appointed by the judiciary and introducing “individual” terms of office for each elected member of the NCJ were unconstitutional.

The new law introduced a completely different model for the election of judges to the NCJ. From that moment on, they were to be appointed not by other judges, but by the Sejm. Since the law did not provide the prematurely recalled members of the NCJ with any remedy against their dismissal, Judge Grzęda turned directly to the European Court of Human Rights (ECtHR), lodging an application in which he complained of a breach of Convention Article 6(1) (right to a court) and Article 13 (right to an effective remedy).

HFHR writes to Strasbourg Court

In its amicus curiae brief, the HFHR referred to three important problems in the case:

– The irrevocability of judicial members of the NCJ

– The conformity of the shortening of the term of office without a remedy with the standards of the rule of law

– The fact that a constitutional complaint cannot, in the current circumstances, be considered an effective domestic remedy.

HFHR noted that neither the Polish constitution, nor other laws applicable as of the date of the applicant's election, had allowed for the dismissal of a judge appointed to serve on the NCJ. Moreover, according to the jurisprudence of the Constitutional Tribunal, shortening the term of office of a constitutional body would only be allowed in exceptional cases.

Not providing a remedy to dismissal incompatible with rule of law

Dismissing a judge from the NCJ and also failing to provide him with a judicial remedy is incompatible with the principle of the rule of law because, alongside other changes introduced by the December 2017 law, it undermines the independence of the Council and, given the crucial powers vested in the NCJ, also affects the independence of the judiciary. In this respect, the HFHR noted that among other things a recent judgement of the Court of Justice of the European Union, in which it pointed to the fact that the incumbent NCJ being formed after the pre-term expiry of tenure of its former judicial members, should be considered when assessing the Council's independence and its impact on the independence of the judiciary.

Arguing compliance with tribunal decision also unfounded

The Foundation also emphasised that the shortening of the term of NCJ members could not be justified by an effort to comply with the judgement of the Constitutional Tribunal issued in June 2017, as the Tribunal made no indication whatsoever that NCJ members elected on the basis of unconstitutional regulations must be immediately dismissed. HFHR also noted the number of controversies raised by the judgement itself, including the fact that it was delivered by a panel including two improperly appointed persons.

Constitutional complaint no longer an effective mechanism

Finally, referring to the effectiveness of the constitutional complaint as a legal remedy, the HFHR stressed that in the current circumstances, given the widely discussed problems relating to the presence of improperly appointed persons on the Tribunal’s panels, irregularities surrounding assignments, and a significant decrease in the number of constitutional rulings, the constitutional complaint could no longer be considered an effective mechanism. Furthermore, regardless of the above institutional problems encountered by the Polish constitutional court, the constitutional complaint could not provide any protection to the dismissed members of the NCJ, as it would not lead to their reinstatement to the Council.