The European Court of Human Rights (ECtHR) has ruled that removing a judge from office solely due to a defect in the appointment of a judicial council violates Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR), noted Dr. Łukasz Bernaciński of the Ordo Iuris Institute. This means that the government’s proposed so-called “rule of law” bill breaches the Convention.
The legislative process is currently underway regarding the so-called rule-of-law bill drafted by the Ministry of Justice. The proposal concerns judges nominated after 2018 through the restructured National Council of the Judiciary (KRS).
What Does Waldemar Żurek’s Bill Propose?
The draft legislation provides, among other things, for the annulment of the legal force of KRS resolutions adopted after 2018 that contained motions for judicial appointments (with the exception of motions concerning the group of so-called “beginner judges”).
Individuals who, prior to their appointment as judges based on resolutions of the improperly constituted KRS, held another judicial position would return to their previous posts. Until new competitions are conducted, they would be delegated to perform judicial duties in their current courts (with the exception of the Supreme Court).
Under the Ministry’s proposal, individuals who were not judges before their appointment would be allowed to return to their former professions (e.g., prosecutor or attorney) or assume the position of court referendarz (judicial clerk). The judicial positions they currently occupy would, upon the entry into force of the law, become vacant and new competitions would be held.
Criticism of the Bill
Numerous bodies have criticized the bill’s provisions, including the Helsinki Foundation for Human Rights, which argues that the draft violates constitutional provisions and fails to take into account the recommendations of the Venice Commission. The “automatic” assessment of judges appointed after 2018 has also been criticized by the Ombudsman, Professor Marcin Wiącek.
Dr. Łukasz Bernaciński of the Ordo Iuris Institute pointed to a judgment delivered on Thursday by the European Court of Human Rights in the case of Simoncini v. San Marino.
“The ECtHR held that removing a judge from office solely because of a defect in the appointment of a judicial council violates Article 6 (right to a fair trial) of the European Convention on Human Rights,” Bernaciński noted.
He added that this means “parliament cannot settle by statute a dispute that belongs to the courts” and that “only a court, in a judgment in an individual case, may override the principle of irremovability of judges.”
“The government’s proposals violate the European Convention on Human Rights — this will not end the dispute; it will deepen the chaos,” assessed Dr. Łukasz Bernaciński.