1 Introduction

One of the characteristic features of European illiberal democracies is the limitation of judicial independence.Footnote 1 This limitation can involve both structural changes in the organisation of the judicial system and subjecting individual judges to various forms of harassment.Footnote 2 Consequently, judges in illiberal states may face disciplinary sanctions, criminal charges or even removal from office. Simultaneously, due to the weakening of national human rights and rule of law protection mechanisms, these judges often lack access to effective remedies at the national level. In this context, the role of international courts, such as the European Court of Human Rights, becomes increasingly significant.

In recent years, the Court has issued numerous judgments addressing violations of individual judges’ rights.Footnote 3 Among the Court’s key judgments in this area are those in the cases of Juszczyszyn v. Poland Footnote 4 and Tuleya v. Poland.Footnote 5 The applicants in these cases were independent Polish judges subjected to harassment by disciplinary authorities during the Prawo i Sprawiedliwość (PiS) rule (in 2015-2023). This article discusses the most critical conclusions of both judgments. It also underscores the significance of the Polish authorities limiting judges’ rights in bad faith. The article then explores the potential evolution of case law under the European Convention on Human Rights in recognising a subjective right under Article 6 ECHR for judges to have their individual independence safeguarded and respected by the State. Finally, the problems with non-implementation of the two judgments are also discussed.

2 The legal background to both cases

To fully grasp the rulings of the European Court of Human Rights in the Juszczyszyn and Tuleya cases, it is essential to examine two reforms implemented under the PiS government. The first reform addressed the procedure for appointing judges, while the second focused on the system of disciplinary responsibility for judges.

Article 179 of the Constitution states that ‘judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.’ The National Council of the Judiciary (NCJ), a constitutional body comprising 25 members, includes executive and legislative representatives, and 15 judges elected from within the judiciary. The Constitution, however, does not clearly specify the electors of these 15 judges. Until 2017, it was widely accepted that judges themselves should have this electoral responsibility. In 2017, the Constitutional Tribunal, in a panel including an unlawfully elected member,Footnote 6 changed this interpretation.Footnote 7 Consequently, the law was altered, transferring the power to elect NCJ judges to the Sejm and ending the current Council members’ terms.Footnote 8 This reform, although upheld by another ruling of the Constitutional Tribunal issued in an unlawful composition,Footnote 9 sparked significant controversy Footnote 10 and its consistency with the Polish Constitution and the European standards continues to be challenged by Polish courts,Footnote 11 the European Court of Justice Footnote 12 and the European Court of Human Rights.Footnote 13

Another significant change was in the judges’ disciplinary responsibility system. In 2018, the Disciplinary Chamber of the Supreme Court was established as the authority for hearing disciplinary cases, including those involving judges. This Chamber, composed solely of judges nominated by the reorganised National Council of the Judiciary, was criticised for not meeting the independence and legal establishment standards, as confirmed by rulings of the European Court of Human Rights Footnote 14 and the European Court of Justice.Footnote 15 The Chamber operated until 2022, when it was replaced by the Chamber of Professional Liability.Footnote 16 Additionally, the Parliament revised the rules for appointing disciplinary commissioners (judges who perform the prosecutorial role in the disciplinary proceedings against other judges), significantly increasing the Minister of Justice’s authority in these matters.Footnote 17

These reforms were connected to each other. Numerous courts began scrutinising judicial appointments based on the Supreme Court, CJEU, and European Court of Human Rights jurisprudence. However, such scrutiny was seen by authorities as an illegal challenge to the President’s power to appoint judges, often resulting in disciplinary actions and suspensions for the judges involved.Footnote 18

3 The facts of cases

The first case discussed is that of Judge Paweł Juszczyszyn, a District Court judge in Olsztyn, seconded to the Olsztyn Regional Court. In November 2019, Juszczyszyn presided over an appeal against a judgment issued by judge appointed on the request of the reorganised National Council of the Judiciary. Questioning the legality of this appointment, Juszczyszyn requested the Sejm Chancellery’s Head to provide endorsement lists for the National Council of the Judiciary’s judicial candidates. Subsequently, the Minister of Justice revoked his secondment, and disciplinary proceedings were initiated against him for alleged misconduct and abuse of power in connection with his order. The Disciplinary Chamber initially found no grounds for suspension, but on appeal, it suspended Mr Juszczyszyn with a 40% salary cut. The suspension lasted until 23 May 2022, when it was lifted by a new resolution of the Disciplinary Chamber.

The Tuleya v. Poland case involved Judge Igor Tuleya of the Warsaw Regional Court. The applicant was known for his public criticism of the Government’s actions threatening the rule of law. Moreover, in the past he issued rulings which were disfavoured by the ruling party officials. Between 2017 and 2018, disciplinary commissioners initiated preliminary inquiries into his actions, like public statements in media and submission of preliminary references to the CJEU. In January 2018, the prosecutor opened a criminal investigation concerning the alleged unauthorised disclosure of information from the pre-trial proceedings by Judge Tuleya. The investigation was connected to the fact that Judge Tuleya, as a judge presiding the court’s bench, allowed media to be present during the court’s session which considered the prosecutor’s decision to discontinue proceedings concerning the possible crimes committed in course of controversial session of the Parliament in December 2016. In February 2020, prosecutors sought to lift his immunity for charges warranting imprisonment. Initially dismissed, the request was approved in November 2022 by the Disciplinary Chamber, leading to suspension of Mr Tuleya and his salary reduction by 25%. In November 2022, the Chamber of Professional Liability overturned this decision and on that basis the President of the Regional Court in Warsaw reinstated Mr Tuleya.

4 European Court of Human Rights judgments

In the judgments of 6 October 2022 (Juszczyszyn) and 6 July 2023 (Tuleya), the European Court of Human Rights (ECtHR) ruled that there were violations of Articles 6 and 8 of the European Convention on Human Rights (ECHR) in both cases. Furthermore, in the case of Judge Juszczyszyn, the European Court of Human Rights found a violation of Article 18 in conjunction with Article 8, and in Judge Tuleya’s case, a violation of Article 10 ECHR was identified.

The Court recognised that Article 6 ECHR, which guarantees the right to a fair trial, was applicable in both cases.Footnote 19 The applicability in Judge Juszczyszyn’s case was evident, as the European Court of Human Rights had previously applied Article 6 ECHR to similar disciplinary cases involving judges.Footnote 20 However, Judge Tuleya’s case posed a more complex issue as the European Court of Human Rights had to determine whether the proceedings to waive his immunity constituted a criminal case within the meaning of Article 6. The Court concluded affirmatively.Footnote 21 It took into account that Judge Tuleya had been charged with serious offences under the Polish Criminal Code. Moreover, in the case law of the Polish courts, proceedings for the waiver of immunity are regarded as repressive proceedings to which the guarantees applicable to criminal trials should be applied accordingly. Also, the penalty threatening the judge was severe. The European Court of Human Rights also took into account that, in ruling on the waiver of the judge’s immunity, the Disciplinary Chamber had assessed that there was sufficient suspicion that the judge had committed a criminal offence.

The violation of Article 6 in both cases resulted from the same fact: adjudication by a Disciplinary Chamber that was defectively composed, compromising the right to have their cases heard by a tribunal established by law.Footnote 22 This aligns with the European Court of Human Rights’s previous judgment in Reczkowicz v. Poland, in which it found that the judges of the Disciplinary Chamber had been appointed in manifest breach of domestic law because the motions for their appointment were submitted by the politicised National Council of the Judiciary.Footnote 23

In terms of Article 8 violations, the European Court of Human Rights found that the suspension of both judges impacted their private lives. In Judge Juszczyszyn’s case, the suspension and the disparaging remarks made about his professionalism and ethics in the Disciplinary Chamber’s resolution likely harmed his reputation.Footnote 24 The 40% reduction in his salary and the over two-year suspension from practicing law were also significant considerations.Footnote 25 For Judge Tuleya, the violation of privacy resulted from the preliminary inquiries initiated in his cases and his suspension and waiver of his immunity by the Disciplinary Chamber.Footnote 26

In both cases, the Court concluded that the actions of authorities did not comply with the requirement of interference ‘in accordance with the law’ under Article 8. For Judge Juszczyszyn, the illegality stemmed from his suspension by a Disciplinary Chamber that was unlawfully composed.Footnote 27 Moreover, the Court held that the interpretation of law regulating grounds for disciplinary liability adopted by the Disciplinary Chamber was unforeseeable: the applicant was suspended because of the judicial action he had taken, and this, by the standards of judicial independence, would only be permissible in exceptional cases.Footnote 28 In the case of Judge Tuleya, the Court held that the initiation of the preliminary inquiry concerning the submission by the applicant of a preliminary reference to the CJEU violated EU law.Footnote 29 Moreover, with regards to the interference resulting from the resolution of the Disciplinary Chamber, requirement of ‘in accordance with the law’ was violated for similar reasons as in the case of Judge Juszczyszyn.Footnote 30

Regarding Article 18, the European Court of Human Rights found a violation in Judge Juszczyszyn’s case, both individually and in conjunction with Article 8. The Court observed that while the government justified the restriction of his rights as necessary for the judiciary’s proper functioning, the underlying intention was to deter Judge Juszczyszyn from scrutinising the status of judges appointed by the reorganised, politicised National Council of the Judiciary. Obviously, this motivation was found incompatible with the Convention.Footnote 31

In Judge Tuleya’s case, the European Court of Human Rights identified a violation of Article 10, which protects freedom of expression. The European Court of Human Rights considered that some of the preliminary inquiries instituted in the applicants’ cases were explicitly related to his exercise of freedom of expression.Footnote 32 The waiver of the applicant’s immunity and the suspension of his immunity were ostensibly justified by criminal charges but, according to the Court, they were actually aimed at punishing him for his critical statements against the Government’s actions threatening the judicial independence.Footnote 33 There was therefore an interference with the applicant’s freedom of expression. At the same time, this interference was not lawful. The resolution in the applicant’s case was issued by the unlawfully constituted Disciplinary Chamber and the preliminary inquiries were undertaken in a procedure that did not provide adequate protection against arbitrariness.Footnote 34 In addition, the interference with the applicant’s freedom of expression served no legitimate purpose - the authorities’ real motivation was to create a chilling effect to discourage the applicant from publicly criticising actions of the Government undermining the independence of the judiciary.Footnote 35

5 Comments

5.1 Introduction

Given that the cases of Judges Juszczyszyn and Tuleya involved clear violations of the principles of judicial independence, European Court of Human Rights’s rulings in these could hardly be considered surprising.

From the legal perspective, the rulings under consideration did not revolutionise European Court of Human Rights case law. Notably, in Judge Tuleya’s case, the application of Article 6 to judge immunity proceedings and the explicit requirement for ‘in accordance with the law’ under Article 10 ECHR to include EU law compliance introduced some novelty. Even though the Court included the EU law in its analysis of legality of interferences in some of its previous judgments,Footnote 36 adopting such an approach in the context of judicial independence is important, as it could potentially enhance the, already strong, jurisprudential dialogue between the European Court of Human Rights and the CJEU in this area. Moreover, such interpretation would allow judges to seek protection of their rights before the European Court of Human Rights more effectively in situations where the CJEU has previously determined a state’s infringement of the EU law in the relevant scope.

However, for the most part, these judgments primarily build upon principles established in earlier European Court of Human Rights case law. Nevertheless, it is important to address two pertinent issues in both cases: first, the impact of the authorities’ bad faith in imposing restrictions on judges’ freedoms and rights; and second, whether the ECHR acknowledges a subjective right for judges to have their individual independence safeguarded and respected by the State.

5.2 Article 18 and the importance of bad faith on the part of the authorities

The common element in the cases of Judges Juszczyszyn and Tuleya was the authorities’ restriction of judges’ rights in circumstances which clearly indicated a political motivation. Therefore, restrictions of freedoms and rights of applicants were imposed in bad faith, as they were aimed at achieving objectives incompatible with the rule of law, a fundamental value of the Convention.

The meaning of good and bad faith of states in European Court of Human Rights case law has been analysed by, among others, Spano Footnote 37 and Çalı.Footnote 38 Spano has pointed out that in the coming years the Court will be increasingly guided by the so-called process-based review. This approach implies that the Court pays more attention to the quality of decision-making processes in states.Footnote 39 In accordance with the principle of subsidiarity, those states whose authorities act in good faith and are ‘structurally capable’ to apply the Convention standards fairly can count on a greater deference of the Court.Footnote 40 On the other hand, warned Spano, States that violate the rule of law, do not respect the independence of judiciary or oppress political opposition ‘cannot expect to be afforded deference under process-based review’.Footnote 41 Çalı noted that the European Court of Human Rights’s broader consideration of whether the authorities’ interferences in the sphere of individual freedoms and rights were undertaken in good or bad faith (primarily within the context of Article 18 of the Convention), could lead to the formation of a trend which she described as ‘variable geometry’.Footnote 42 It assumes that ‘whether a state is found in violation of the Convention and how this violation is classified (standard or in bad faith) depends on the attitudes of domestic institutions to the Convention and the degree to which the Court is convinced that states do not operate with illegitimate purposes when restricting Convention rights’.Footnote 43 She drew attention to the possible problems that such an approach might entail, including, inter alia, the risk of accusations of politicisation and double standards being levelled at the Court, or the difficulty of credibly demonstrating that states were indeed driven by a ‘hidden agenda’.Footnote 44 The opportunities and dangers of using Article 18 ECHR to condemn human rights violations committed in bad faith were also pointed out by Helfer. Among the potential benefits, he included the exposure and condemnation of ‘the range of repressive measures deployed by populist regimes’ while the dangers included the risk of backlash from populist politicians who may use such rulings to attack international bodies.Footnote 45

However, as Heri rightly observed ‘we should not write off Article 18 purely because of the risk of backlash from populist regimes’.Footnote 46 Indeed, taking into account the good or bad faith of the authorities is necessary to ensure that the Court correctly applies the Convention when assessing restrictions on freedoms and human rights in illiberal states. The European Court of Human Rights has always stressed that Convention rights must be effective in practice, not just in theory,Footnote 47 ‘and that in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation’.Footnote 48 Therefore, the Court must be able to unmask what Sajo refers to as ‘ruling by cheating’ Footnote 49 in illiberal democracies.

In the context of the two judgments of the Court discussed here, the issue of bad faith (even though the Court did not use this term explicitly) on the part of the Polish authorities resonated most strongly in the Juszczyszyn judgment, in which the Court found a violation of Article 18 ECHR.Footnote 50 As already mentioned, this provision prohibits interference with an individual’s rights for the pursuit of purposes not permitted by the Convention. Its violation may occur not only when the interference serves solely an impermissible purpose, but also when it serves both permissible and impermissible purposes, with the latter being dominant.Footnote 51 In the past, the Court has found violations of Article 18 primarily (but not exclusively) in connection with Article 5 ECHR.Footnote 52 In 2021, however, it found a violation of Article 18 in conjunction with Article 10 in Miroslava Todorova v. BulgariaFootnote 53 which concerned the imposition of severe disciplinary sanctions on a judge for her criticism of actions of the government and the Supreme Council of Judiciary. It was therefore clear from this judgment that a restriction of a judge’s rights for purposes incompatible with the principles of the independence of the judiciary and the rule of law, could violate Article 18 ECHR.

The Court presented a similar approach in the case of Judge Juszczyszyn. In identifying the ulterior purpose of the authorities, the European Court of Human Rights took into account all the relevant circumstances of the case, which included both the individual context (the applicant’s suspension as the culmination of previous steps taken against him) and the systemic context determined by the totality of government actions aimed at limiting the independence of the judiciary.Footnote 54 The Court also took into account its previous jurisprudence in cases concerning the crisis of the rule of law in Poland, as well as the jurisprudence of the CJEU and the positions and statements of many international bodies.Footnote 55 On that basis, the Court had no doubt that the predominant purpose for which the interference with the applicant’s rights was carried out was to ‘dissuade him from assessing the status of judges appointed upon the recommendation of the recomposed National Council of the Judiciary by applying the relevant legal standards, including those stemming from Article 6 § 1 of the Convention’.Footnote 56

However, the European Court of Human Rights took into account the bad faith of the authorities not only in the context of considering the allegation of violation of Article 18 in the Juszczyszyn case. In both judgments, including the Tuleya case, this issue formed a background against which all allegations were examined. For example, in both cases, the Court indicated that the applicants did not need to file a constitutional complaint before approaching the European Court of Human Rights, as this measure would lack ‘realistic prospects of success’ in light of previous case law of the Constitutional Tribunal legitimising controversial changes in the National Council of the Judiciary.Footnote 57 In Judge Tuleya’s case, the Court also emphasised on several occasions the need to consider the measures taken against the applicant in the broader context of the case determined, inter alia, by the totality of the authorities’ actions leading to systemic violations of the independence of the judiciary in Poland and the applicant’s open criticism of such moves.Footnote 58 It was the consideration of this broader context that allowed the Court to determine that Judge Tuleya’s case was not a simple criminal or disciplinary case, but in fact an unacceptable attempt to put pressure on the judge, contrary to the principles of judicial independence.

Thus, in both judgments, the Court unmasked the hidden objectives of the authorities, pointing out their incompatibility with the principle of the rule of law. The approach presented by the European Court of Human Rights in the judgments analysed here should, moreover, be seen against the background of its broader case law concerning the rule of law crisis in Poland. Significant here is, in particular, a passage from the Grzęda v. Poland judgment, in which the Court noted the following: ‘the whole sequence of events in Poland (see paragraphs 14-28 above) vividly demonstrates that successive judicial reforms were aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Tribunal in December 2015, then, in particular, remodelling the National Council of the Judiciary and setting up new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline. (...). As a result of the successive reforms, the judiciary - an autonomous branch of State power - has been exposed to interference by the executive and legislative powers and thus substantially weakened. The applicant’s case is one exemplification of this general trend’.Footnote 59

The Court’s consideration of this broader context in cases such as Juszczyszyn, Tuleya or earlier Żurek,Footnote 60 enabled the Court to see the true nature of the interferences with the rights of the applicant judges and thus to find a violation of the Convention. The finding that the authorities’ actions were in fact taken in bad faith significantly limited the Government’s ability to successfully invoke the principle of subsidiarity. The Court cannot be required to give credence to the findings and interpretations of bodies such as the Disciplinary Chamber or the Constitutional Tribunal, when their functioning was precisely the result of these overall reforms of the authorities aimed at controlling the courts and judges. Nor could the Government portray the reforms it is introducing as falling within the margin of appreciation, since actions taken to limit the independence of the courts and subject them to political control violate the founding principles of the European Convention on Human Rights and as such inherently fall outside the margin of appreciation granted to States.

5.3 The subjective right for judges to have their individual independence safeguarded and respected by the State

The second issue worth noting when analysing the two European Court of Human Rights judgments in question is the possibility of deriving from the European Convention on Human Rights the subjective right for judges to have their individual independence safeguarded and respected by the State.

There is no doubt that the key problem in the cases of Judges Juszczyszyn and Tuleya was the interference by the authorities with their independence. Formally, however, the basis of the complaints in both cases was not a violation of judicial independence as a value in itself, but a violation of the right to a court, to privacy and of freedom of expression. This was because, although the Convention grants individuals the right to have a case heard by an independent court, it does not explicitly express the subjective right of judges to have their independence protected. In other words, independence is part of the subjective right of a party to judicial proceedings, not of a judge.

For this reason, in its jurisprudence to date, the Court has considered cases involving various types of interference in the sphere of judicial independence from the perspective of provisions of the European Convention on Human Rights governing specific freedoms and rights, usually Articles 6, 8 and 10.Footnote 61 Significantly, the European Court of Human Rights has tended to interpret the scope of these provisions rather broadly. Indeed, it accepted that ‘it would be a fallacy to assume that judges can uphold the rule of law and give effect to the Convention if domestic law deprives them of the guarantees of the Articles of the Convention on matters directly touching their individual independence and impartiality’.Footnote 62 The Court therefore took the view that the various cases concerning the employment relationship of judges fell within the scope of Article 6 ECHR in its civil aspect, and that the exclusion of access to a court would only be permissible in wholly exceptional cases.Footnote 63 In the context of Article 8 ECHR, for example, the Court theoretically requires a demonstration that a particular interference relating to an individual’s professional life had ‘very serious’ consequences and affected the applicant’s private life ‘to a very significant extent’.Footnote 64 In practice, however, it has found violations of this provision even in cases that can hardly be considered extreme.Footnote 65

On the one hand, such an interpretation enables the Court to protect more effectively the principle of the rule of law. However, on the other hand, an overly expansive interpretation of the Convention’s provisions may lead to some inconsistencies in the Court’s jurisprudence.Footnote 66 It is worth noting in this context the dissenting opinions delivered by Judge Wojtyczek (together with Judge Paczolay, in the Juszczyszyn case) in both cases. The Polish judge pointed to certain inconsistencies in the interpretation of Article 8 ECHR by the Court. In Juszczyszyn, Judge Wojtyczek pointed to the applicant’s failure to show that the disciplinary measures taken against him had seriously affected his private life.Footnote 67 In Tuleya, on the other hand, he drew attention to the case law of the European Court of Human Rights according to which the mere bringing of criminal charges against someone cannot be considered an interference with rights protected under Article 8 ECHR.Footnote 68 And even though I do not fully share these objections, I do see a certain problem with the reasoning of the European Court of Human Rights regarding qualifying the mere undertaking a preliminary inquiry in the case of Judge Tuleya as an interference with his privacy.Footnote 69 I have doubts whether the threshold of severity of consequences for private life has been exceeded in this case.

Even leaving aside the issue of a potentially over-expansive interpretation of the Convention, by concentrating on violations of Articles 8 or 10, as Kosař and Šipulová have pointed out in relation to the Baka and Erményi Footnote 70 cases, the Court might overlook the core issue in such instances – which comprises the rule of law and judicial independence.Footnote 71 The question therefore arises as to whether it would not be preferable for the Court to explicitly recognise that the subjective right for judges to have their individual independence safeguarded and respected by the State can be derived from Article 6 ECHR.

It is worth noting that as early as 2016, in a concurring opinion to the Grand Chamber judgment in the Baka case, an interpretation deriving from Article 6 ECHR the subjective right for judges to have their individual independence safeguarded and respected by the State was proposed by Judge Linos-Alexander Sicilianos.Footnote 72 Judge Sicilianos argued that in order to protect the rule of law and to safeguard rights of individuals to have their cases heard by independent courts, States must be obliged to provide adequate safeguards protecting judicial independence. Such an obligation corresponded with the subjective right of a judge to judicial independence. According to Judge Sicilianos, such a subjective right is inherent in Article 6 of the Convention.

Leloup has recently suggested a similar interpretation.Footnote 73 He posits that safeguarding a substantive right on the part of judges to have their independence protected and respected is justifiable, partly on the basis of the principle of subsidiarity.Footnote 74 This principle emphasises the crucial role of domestic judges in upholding the rights and freedoms enshrined in the Convention. However, for judges to be able to perform this function, their own independence should be adequately safeguarded. Moreover, Leloup argues that recognising a subjective right on the part of judges under Article 6 § 1 of the Convention would enable the Court to directly address complaints about infringements on judicial independence.Footnote 75 This approach would eliminate the need to invoke other substantive rights under the Convention. It would also broaden the Court’s scope not just to focus on the independence of the courts as institutions but also to tackle issues concerning threats to the independence of individual judges.Footnote 76

In my view, the arguments cited by both authors are convincing. Deriving a subjective right on the part of judges from the European Convention on Human Rights would be justified in the light of the principle of the rule of law, which is a value underlying the whole Convention.Footnote 77 The rule of law principle justifies viewing a judge’s right to respect for and protection of his independence as a correlative of the individual’s right to a court of independent jurisdiction. The latter, after all, cannot be effectively realised if the independence of individual judges is not effectively protected. Of course, it is already possible for individuals to claim in applications to the European Court of Human Rights that their right to a court has been violated because, for example, their case was decided by a judge who was not protected from removal from office. However, very often judicial independence may be threatened or damaged, even on a large scale, in circumstances in which it would be very difficult to prove a concrete impact on the independence of a judge adjudicating in the particular case of a concrete applicant. Likewise, it is questionable whether all forms of interferences with judicial independence of would qualify as violation of rights of individual judges guaranteed by Articles 8 or 10 of the European Convention on Human Rights.Footnote 78 For example, the arbitrary transfer of a judge from one department to another within the same court, without reducing their salary and without formally charging them with disciplinary offences (which may affect their good name), but in circumstances clearly suggesting political motives, may violate the principle of judicial independence, but does it also constitute an infringement of privacy?

By recognising the existence of the subjective right for judges to have their individual independence safeguarded and respected by the State, the European Court of Human Rights would gain the opportunity to address various interferences in the sphere of judicial independence, without the need for an expansive interpretation of the substantive provisions of the Convention. In addition, it would thus be able to address the actual essence of cases of harassment against judges and unequivocally conclude that, by applying certain measures against a judge, the State has breached its obligations to respect the independence of the judiciary. This could also contribute to strengthening this independence in European states.

The right of judges to have their independence respected and protected by public authorities is no longer merely a matter of consideration in the legal literature. Indeed, there are currently a number of proceedings pending before the Court of Human Rights in which the Court has explicitly asked the government and the applicants about the possibility of deriving such a right from Article 6 ECHR.Footnote 79 If the Court adopts such an interpretation of Article 6, it will be necessary to clarify the scope of the right in question, the obligations of the State arising from it and the rules limiting it. Certainly, the subjective right of judges should be interpreted in the light of the main purpose of Article 6 which is to protect the right of individuals to have their cases heard by an independent and impartial tribunal established by law. This right should therefore not be regarded as a privilege of judges, but as a necessary guarantee of the independence of the judiciary. This in turn means that judges could not rely on this right to protect themselves from the proportionate and reasonable effects of measures taken by the State authorities to ensure the proper protection of individuals’ right to a court. As Leloup observed, ‘judicial independence, despite its crucial importance, cannot be seen to imply an absence of judicial accountability’.Footnote 80 Instead, subjective right of judges should be directed primarily at protecting against interferences which are arbitrary and undertaken in bad faith.

6 Implementation of the judgments

The judgments in Juszczyszyn and Tuleya show that the European Convention on Human Rights can be used to protect the rights of judges. However, whether this protection is effective depends not only on the content of the judgment handed down by the European Court of Human Rights, but also on how that judgment is implemented in practice.

The judgment in Tuleya became final on 6 October 2023, which means that the deadline for its execution did not pass until January 2024. Consequently, at the time of writing, no information was yet available on the execution of this judgment at the individual level. However, the enforcement should seemingly involve the payment of the just satisfaction awarded by the European Court of Human Rights and the cessation of further harassment of the judge - including the discontinuation of the criminal proceedings against him. More information can be found on Judge Juszczyszyn’s situation. In this case, the government paid the reparation awarded by the European Court of Human Rights.Footnote 81 Nonetheless, it is difficult to consider that full implementation has taken place. After the applicant returned to adjudication, he was forcibly transferred by the president of the court from the civil division to the family juvenile division of the court. Furthermore, the disciplinary authorities undertook investigative actions concerning, for example, the applicant’s public statements and his questioning of the legality of the appointments of judges at the request of the so-called new National Council of the Judiciary.Footnote 82 For this reason, in a decision of December 2023. The Committee of Ministers of the Council of Europe ‘urged the authorities to immediately provide the applicant with full restitutio in integrum, through putting an end to any ongoing acts of reprisal and erasing their negative consequences’.Footnote 83

Neither of the two judgments has been implemented at the general level. In the above-mentioned decision of December 2023, the Committee of Ministers indicated that a reform of the disciplinary system for judges would be required to implement the Juszczyszyn ruling, so that liability for the content of a judgment would only be allowed in exceptional cases. It would also be necessary to ensure that the prerequisites for disciplinary action were interpreted and applied in a predictable manner, and that disciplinary proceedings themselves provided adequate procedural guarantees and were not conducted in a protracted manner. The Committee’s view was that the authorities should also consider a broader reform of the disciplinary system in order to reduce the influence of the executive and the risk of undue pressure on proceedings. The Committee also pointed out the need to ensure that all disciplinary proceedings against judges were conducted before courts that meet the requirements of Article 6 ECHR. This last recommendation should also be read against the background of the Committee’s recent interim resolution on the implementation of the Reczkowicz judgment.Footnote 84 In this, the Committee pointed to the need to restore the independence of the National Council of the Judiciary by returning to a model in which it was the judges themselves who elected the members of the National Council of the Judiciary; and also to regulate the status of defectively appointed judges and the rulings they issued. The Committee has not yet had time to comment on the implementation of the Tuleya judgment, but all of the above recommendations can be considered valid in this case as well.

Unfortunately, no such changes have taken place so far. There has been no restoration of the independence of the National Council of the Judiciary,Footnote 85 nor has the status of the judges appointed at the request of the current National Council of the Judiciary and the rulings issued by them been regulated. Some changes to the disciplinary system for judges were introduced in June 2022. The new law abolished the Disciplinary Chamber and replaced it with the Chamber of Professional Liability. The latter Chamber’s composition remains objectionable (mainly due to the presence of so-called ‘neo-judges’ in it), although, in general, its jurisprudence is more respectful of the principle of judicial independence than the activities of the Disciplinary Chamber. A provision was also introduced according to which erroneous interpretations of law, the submission of a preliminary reference to the European Court of Justice or an examination of the requirements of independence within the framework provided by the law do not constitute a disciplinary tort. However, the reform did not repeal provisions introduced in the infamous ‘Muzzle Law’Footnote 86 and so questioning of status of unlawfully appointed judges may still be classified as a disciplinary offence by disciplinary commissioners.

The main reason for the non-implementation of the judgments in both cases was the lack of political will on the part of the PiS government, which ruled in Poland until December 2023. However, in the elections held in Autumn 2023, a coalition of liberal-democratic groupings won and formed the government appointed by the President on 13 December 2023. The new authorities quickly announced that the implementation of the European courts’ judgments and the restoration of the rule of law were among their priorities.Footnote 87 Unfortunately, this process will not be easy to implement. Reversing the effects of the PiS reforms, which are not in line with European standards, will in many cases require legislative changes, and these may be hampered by the President and the Constitutional Tribunal. The former is vested with a veto, the rejection of which requires a qualified majority of 3/5, which the ruling coalition does not have, while the Constitutional Tribunal has already demonstrated on numerous occasions that it cannot be treated as an independent and impartial body.

7 Conclusions

The judgments in the Juszczyszyn and Tuleya cases confirmed that judicial independence was being violated during the PiS government by subjecting independent judges to harassment in order to put pressure on them. The two judgments can therefore be seen as an unequivocal condemnation by the Court of such actions.

Both judgments can be seen as the development of a long-established line of jurisprudence directed at protecting the rights of judges from interferences that threaten their independence. Particularly important was the Court’s recognition that the Polish authorities had the objective of creating a chilling effect to deter judges from challenging reforms that violated standards of judicial independence. Such an approach, involving the Court looking ‘beyond appearances’ in order to ascertain the real, albeit ulterior, motivations of those in power, is necessary especially in the case of interference in the sphere of judicial independence in states of so-called illiberal democracies.

It can be expected that the approach seen in these two judgments will be continued and developed in subsequent cases concerning the rule of law crisis in Poland. There are a number of proceedings pending before the Court initiated by applications brought by Polish judges subjected to various types of harassment during the period of the PiS government. It is possible that these cases will even lead to a significant development in the jurisprudence of the European Court of Human Rights by deriving from Article 6 ECHR the subjective right for judges to have their individual independence safeguarded and respected by the State.

Although both judgments have not yet been properly implemented, especially at the general level, the declarations of the new governing coalition, which took over the government in December 2023, inspire a certain optimism and allow one to believe that the most serious threats to judicial independence will finally be eliminated and that cases such as those of judges Tuleya or Juszczyszyn will not be repeated. The full restoration of the rule of law in Poland, including the restoration of respect for the independence of the judiciary, will not, however, be an easy task, and not only because of the risks in the form of a presidential veto or rulings by the Constitutional Tribunal. It will also be a major challenge to balance properly the conflicting values and interests that may speak in favour of different ways of solving the problems that have arisen, as well as to build citizens’ trust in the judiciary after many years of crisis and deepening legal chaos.