Marcin Szwed

The Issue of Irremovability of Judges in the Case Law of the European Court of Human Rights

The purpose of the article is to establish the standards developed in the case law of the European Court of Human Rights with regards to the principle of irremovability of judges. For this purpose, two categories of cases are analysed: those in which individual applications were lodged by participants of proceedings before courts composed of judges who were not sufficiently protected against arbitrary removal from office, and those where applications were lodged by the judges themselves. In the case of the former group, the problems related to the irremovability of judges are considered through the prism of Article 6(1) of the ECHR. The irremovability of judges is perceived by the ECtHR as a fundamental guarantee of the independence of a court - systemic deficiencies in this respect may therefore lead to a violation of Article 6. However, the ECtHR underlines the need to take into account not only regulations but also practice. Still, the protection against removal from office is not absolute and some exceptions in this regard are allowed. As far as cases initiated by judges' complaints are concerned, particularly important are Articles 6, 8, and 10. The first of them guarantees dismissed judges the right to a court - therefore, as a rule, it would be impermissible to remove judges without ensuring individual judicial review of the legality of removal. The ECtHR allows the exclusion of court proceedings in cases involving public officials, but only if such exclusion is provided expressly and is justified by the objective interest of the state. In the context of irremovability of judges, the latter criterion will be very difficult to meet. The two remaining provisions, Article 8 and 10, affect the substantive grounds for dismissing a judge from office. Therefore, it would be unacceptable to remove judges from their office as a repression for statements made by them falling within the limits of freedom of speech. The ECHR could also be violated if, in specific circumstances, due to the reasons or consequences of dismissal, it was considered a disproportionate interference with the privacy of a judge. 

Commentary on the Judgement of October 19th 2017 issued by the European Court of Human Rights in the case of Nawrot v. Poland, application no. 77850/12

The discussed judgment concerned involuntary psychiatric hospitalization of a man accused of robbery. In the course of criminal proceedings the medical experts stated that the applicant suffered from psychotic disorders and organic damages in the central nervous system. After 4 years of stay in the psychiatric hospital, the new experts held that the applicant did not suffer from any psychotic disorders and diagnosed him only with personality disorders. At the same time, the applicant admitted that he had only simulated a mental illness in order to avoid criminal responsibility, and requested the court to release him. However, the courts refused to order a release for the next 2 years. The ECtHR ruled that the continuation of deprivation of liberty after submission of the medical opinion which confirmed that the applicant had not been mentally ill, violated Article 5 § 1 of the Convention. The article analyses two aspects of the case: the potential impact of simulation of mental illness on the admissibility of the application and the definition of the term “unsoundness of mind” in the case law of the ECtHR.

Right to a Tribunal Established by Law and the Adjudication by Judges of Common Courts Appointed at the Request of the National Judicial Council after 6 March 2018

The purpose of the article is to discuss the problem of common courts adjudicating in panels with judges appointed at the request of the National Council of the Judiciary after 6 March 2018 from the perspective of the right to a tribunal established by law guaranteed by Article 6(1) of the ECHR. In particular, the research problem of the article is to determine whether adjudication by a common court in panels involving such persons always leads to a violation of Article 6(1) ECHR. The article presents the view that the appointment of common court judges at the request of the reorganised NCJ, possibly with exception to assessors and former assessors appointed to their first judicial positions, constitutes manifest violation of fundamental rules of appointment of judges. This position is supported by the previous ECtHR case law, according to which adjudication by defectively appointed Supreme Court judges led to violation of the right to a tribunal established by law. However, the mere fact that a common court judge has been appointed in manifest violation of domestic law does not mean that the issuance of a ruling by such judge must always lead to a violation of Article 6(1) ECHR. In the process of assessment of whether there has been a violation of the Convention, the ECtHR also takes into account whether the national courts have adequately reviewed and remedied the violations of law that occurred at the stage of judicial appointments. The article presents the view that if a domestic court undertakes a comprehensive assessment of the judicial appointment process and then concludes, relying on the values expressed in the ECHR and in the case law of the ECtHR, that despite participation of unlawfully appointed person in adjudication panel an individual’s right to court was not put at risk, a violation of Article 6 ECHR can be avoided. If, however, the issue of the judge’s appointment is not examined at all or is done so only superficially, there will be a breach of the ECHR.