# Filipe Marques Paulo Pinto de Albuquerque Editors

# Rule of Law in Europe

Rule of Law in Europe

Filipe Marques · Paulo Pinto de Albuquerque Editors

# Rule of Law in Europe

*Editors* Filipe Marques Lisbon, Portugal

Paulo Pinto de Albuquerque Law Faculty of Lisbon Catholic University Lisbon, Portugal

ISBN 978-3-031-61264-0 ISBN 978-3-031-61265-7 (eBook) https://doi.org/10.1007/978-3-031-61265-7

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#### **Preface**

This book gathers the vast majority of the speeches and communications given at the conference "Rule of Law in Europe", held in Lisbon, Portugal, on 9–10 December 2021, co-organised by *MEDEL – Magistrats Européens pour la Démocratie et les Libertés* (together with its Portuguese member associations *ASJP – Associação Sindical dos Juízes Portugueses* and *SMMP – Sindicato dos Magistrados do Ministério Público*) and the *Católica Lisbon School of Law* of the *Universidade Católica Portuguesa*.

The reasons that led MEDEL and the Católica Lisbon School of Law to organise this event are manifest—the Rule of Law crisis that Europe has been facing in the last decade, unforeseeable when the enlargement to the East took place in the beginning of the century, makes the debate on this foundational cornerstone of the European integration more urgent than it has ever been.

The treaties that set the foundations of the European legal system are based on theoretical concepts such as "common constitutional traditions" or "shared values", but no one thought these vague proclamations could be put to the test in the way they currently are.

Direct attacks against the independence of judges and prosecutors and open attempts of interference in the judiciary by the executive, all masked under a populist rhetoric, are pushing to the limit all the actors in the field—politicians; national and European judges; magistrates and lawyers from all European States.

At the same time, the force and validity of the rules on which European integration has been built in the last seven decades are also put to the test: questions of distribution of competence between national and European authorities arise, overlapping jurisdictions of national and European courts are constantly discussed, decisions of courts are increasingly based on general principles of law instead of positive norms.

In this context, this event tried to contribute to the debate on Rule of Law bringing together magistrates, politicians and academics, in order to have a multifocal dialogue although always juridical, not exclusively theoretical. We had the honour to count as speakers with the European Commissioner of Justice and the (at the time) Minister of Justice of Portugal and the Prosecutor-General of Spain; the Presidents of the Consultative Councils of European Judges and Prosecutors, of the Council of Europe; renowned members of the academia and magistrates from various European countries.

The Rule of Law is at the crossroad of political and juridical considerations and the ongoing debate in Europe clearly shows that "dual nature": the actors at the centre of the stage are not only the courts (CJEU and ECtHR), but also the political institutions (European Commission, Parliament and Council; the Committee of Ministers of the Council of Europe). It was therefore a deliberate option of the organisation to gather the inputs of all these players, so the texts that may be found in the following pages are of different nature—some of them offer a more academic perspective, while others may give more attention to the political implications of the debate. We believe that only through this dialogue between different actors of justice the Rule of Law may be truly and actively defended.

Another of the goals of the conference was to bring together the perspectives of the two main international courts acting in this field: the Court of Justice of the European Union and the European Court of Human Rights. The mutual influence of the jurisprudence of these courts is evident, so the joint analysis of their decisions is crucial for the complete understanding of the development of the Rule of Law crisis.

After reading these pages, there will certainly remain more unanswered questions than solid conclusions on the ways to move forward and the possible solutions to the current situation. In a way, that is precisely the ultimate goal of any open and sincere debate: to bring up new arguments and ways of thinking, forcing the participants to explore uncharted paths that had never before been revealed. If that will be the case, the *Católica Lisbon School of Law* will have accomplished its duty as academic institution and MEDEL will have achieved one of the goals established by its founding members in 1985—the establishment of a common debate among magistrates from different countries in order to support European community integration, in view of the creation of a European political union.

The organisers sincerely hope that the texts published in these pages will contribute to the further development of this debate and influence the jurisprudential and doctrinal work in this field.

Lisboa, Portugal Filipe Marques Paulo Pinto de Albuquerque

## **Introduction: Conference "Rule of Law in Europe"**

Didier Reynders

European Commissioner of Justice Brussels, Belgium<EMAIL_ADDRESS>
I would like to thank MEDEL and the Portuguese Catholic University for organising this conference.

It is a great honour for me to take part today.

This type of initiative plays an important part in fostering and promoting a rule of law culture.

Democracy, the rule of law and fundamental rights are the building blocks of the European Union.

The rule of law fulfils a special function when it comes to the values of the EU enshrined in Article 2 of the Treaty. To put it in the words of our President Ursula von der Leyen: It is the glue that binds our Union together. It guarantees the protection of all other fundamental values, on which our Union is founded.

It also plays a crucial role for the functioning of the EU, ensuring that Member States and their citizens can work together in a spirit of mutual trust.

Trust in public institutions, including in the justice system, is indispensable for the functioning of democratic societies.

Under the rule of law, all public powers act on the basis and within the constraints set out by law, in accordance with the values of democracy and fundamental rights. It also requires that exercise of such powers must be subject review by independent and impartial courts irrespective of political majorities.

But in Europe, over the past years, we have seen the erosion of some of our values in certain Member States. It shows that respect for the rule of law cannot be taken for granted, even within the EU.

To address these challenges, we have gradually developed and deployed a variety of instruments.

In 2020, a new tool was added to our rule of law toolbox—the annual Rule of Law Report.

It is conceived as a yearly process and aims at preventing problems from emerging or deepening. It also allows Member States to learn from each other, through an exchange of best practices.

On 20 July 2021, the Commission adopted the second annual Rule of Law Report.

This new edition further deepens the Commission's assessment. In particular, it follows up on the challenges that the first Report identified and those arising from the COVID-19 pandemic.

To prepare this report, we have collected written input from all Member States and received over 200 written contributions from a large range of stakeholders.

We also conducted virtual country visits during which we had over 400 meetings with national authorities, independent bodies and stakeholders.

This is crucial for deepening our country-specific knowledge.

I would like to thank MEDEL for its important contribution to the stakeholder consultation, and I invite you to take part in the consultation for the 2022 Report, which is ongoing.

As of next year our report will also come with specific recommendations to Member States.

It is important to make the best use of this Report as a basis for a genuine dialogue on the rule of law with a wide variety of actors, both at EU and national level.

We expect the findings of the 2021 report to further feed into discussions between Member States as they work to strengthen the rule of law.

And there is a political will to do this.

I welcome that the Portuguese and the Slovenian Presidencies have continued the dialogue on the basis of the Rule of Law Report in the General Affairs Council, with a horizontal discussion in October and a country-specific discussion on five Member States in November.

I am counting on future Council presidencies to continue this approach.

We also want the report to stimulate debate on national level. In this context, the engagement with parliaments is particularly important for the Commission.

I have presented the first annual Report in many national parliaments. And I will continue to do this also for the second Report—most recently, I have been to Vienna, Budapest, Warsaw and Paris.

I also held many exchanges with other stakeholders, including representatives of the judiciary and civil society organisations as part of these visits. They also have a vital role to play. By fostering discussions on the rule of law and explaining its importance to citizens, they can help build a rule of law culture in the Union.

I know that this is a challenge, and it will require the commitment of all public institutions as well as society at large.

Improving our knowledge of what is happening in all Member States is crucial for making the best possible use of our rule of law toolbox.

I assure you that the Commission remains fully committed to making use of all the tools at its disposal, as necessary to promote and uphold the rule of law.

Where critical situations have an impact on the judicial independence or the independence of regulatory authorities in a Member State, the Commission can launch infringement proceedings against a Member State. This is what we have done in the case of Poland for example.

The Commission will not hesitate to take further action to launch infringement proceedings in order to uphold the rule of law and judicial independence.

In recent years, we have also deployed other instruments, including measures under the European Semester, the annual cycle for aligning economic and fiscal policies in the Union.

In this context, the Commission has made several country-specific recommendations on justice reforms in some Member States, which were then adopted by the Council.

Member States should address these recommendations in their national recovery and resilience plans. These plans set out the reforms and investments they wish to implement when spending funds from the EU's 670 billon euro Recovery and Resilience Facility.

Since January this year, we also have the new Rule of Law Conditionality Regulation. This is an important achievement: for the first time, the Union will be able to protect its budget from breaches of the rule of law.

This Regulation complements other procedures to protect the EU budget under EU law, including OLAF and EPPO's investigations.

The Commission will use the conditionality regime if and when all conditions for its application are met to protect the EU budget.

We are fully committed to enforcing the Regulation and are actively working on its concrete implementation.

The Commission—as guardian of the Treaties—has a special responsibility and we will act, whenever our common values are put at risk.

But promoting and upholding the rule of law is also a common responsibility and there is work for everyone to do.

This is why the Rule of Law is also an important topic of discussion in the context of the Conference on the Future of Europe. We need to have this open discussion among European citizens to explore ways to strengthen the rule of law in our Union.

All EU institutions, Member States' institutions and authorities, courts, civil society organisations and academia also have their role to play in this context.

I thank you for your engagement, and I continue to count on your support.

Thank you for your attention.

#### **Introduction: The Rule of Law in Europe**

Filipe César Marques

Judge in Portugal, President of MEDEL (2017–2022) Lisbon, Portugal<EMAIL_ADDRESS>
I would like to start this conference with a special reference, because of its symbolism, given the subject of the debate that will follow. We have here with us Yavuz Aydin, a Turkish judge who was unlawfully dismissed following the purge carried out by the Turkish authorities and who was forced into exile. In his person, I wish to salute all Turkish magistrates, lawyers and jurists, particularly the members of YARSAV, the Turkish judges' association, a member of MEDEL, who were dismissed and have been persecuted, many of whom have been forced into exile in precarious conditions. I especially recall here Murat Arslan, President of YARSAV, to whom the Parliamentary Assembly of the Council of Europe awarded the Vaclav Havel Human Rights Prize in 2017, who has been in detention since 26 October 2016 serving a 10-year prison sentence, to which he was sentenced after a trial that did not meet any of the internationally recognised minimum standards of a due process. Dear Yavuz, with this greeting I reaffirm MEDEL's unwavering commitment to all those, in Turkey and beyond, who continue to fight for the return of the Rule of Law to your country.

On behalf of MEDEL, I would like to express my gratitude to our Portuguese associations, the Association of Portuguese Judges and the Portuguese Union of Public Prosecutors, for accepting the challenge of organising this conference.

To the Catholic University, in the person of its Rector, Professor Isabel Capeloa Gil, and of Professor Paulo Pinto de Albuquerque, I would like to express my gratitude for the enthusiastic way in which from the very first moment they welcomed the idea of this initiative and did everything they could to make it a reality, highlighting the work of the whole team that collaborated in the organisation, led by Filipa Paiva e Pona.

I would also like to thank you personally, Commissioner Didier Reynders, for the willingness you have always shown to participate in this conference, a testimony of your recognition of the importance of the topic we will be discussing here and of your commitment to defend the Rule of Law in Europe.

I dare to say that what we will discuss during these two days at this conference is the topic that will most shape the future of the European Union in the coming decades. In recent years, we have witnessed in several States an attack on the most basic principles that constitute the common foundations on which the Union has been built—the Rule of Law, independence of the judiciary, protection of minority rights, freedom of the press and freedom of expression.

Basic concepts such as the primacy of Union law, which were thought to be solidly accepted, have been called into question, endangering the whole complex edifice that has been built over the years and that has managed to make the European Union the most successful project of integration of sovereign nations that history has ever seen.

It is on this reality that we will reflect over these two days, trying to answer three questions: how did we get here? Where do we stand? What do we have to do to get out of this situation?

Let us be clear: it is not *only* Poland and Hungary that we will talk about at this conference. We could talk about Spain, where the renewal of the Superior Council has been blocked for over a thousand days due to a lack of political dialogue; about France or Germany, where there is no structure to guarantee the real independence of the Public Prosecutor's Office; about Romania, where the fight against corruption in the judiciary has led to solutions that the CJEU says may be contrary to EU law; about Portugal, where, contrary to all internationally established standards, judges do not represent at least half of the members of their high council and where, on the high councils, nonmagistrate members may still be politicians or practising lawyers and may therefore represent parties in legal proceedings and participate in the body that manages careers and punishes magistrates who handle those same proceedings.

But we also have to make it clear: it is *essentially* Poland and Hungary that we will be talking about at this conference. Because while there may be structural problems in all Member States, never before have we seen, as in these two, an organised and deliberate campaign to destroy the independence of the judiciary and subject it to the control of the executive branch. What we have been witnessing in both is the implementation of a populist strategy to destroy democracy from within, gradually and effectively using its own instruments, one of the most important steps of that strategy being the capture of the Judiciary. Nobody would have imagined a little over ten years ago that, today, two of the Member States of the European Union would not be considered functional democracies.

The defence of the common values of democracy and the rule of law is not, however, carried out only at the level of the EU institutions. That is why we will also look at what is happening at the level of the Council of Europe and the challenges it faces.

The European Court of Human Rights, one of the institutions that has most contributed to the sedimentation of a true culture of respect for human rights on the European continent, has been faced with new challenges in recent years. Faced with situations of total breakdown of the rule of law in the member states of the Council of Europe, the ECtHR has found it difficult to adapt and find adequate and timely responses to these situations. As we wrote in a collective article published on the occasion of Europe Day in May this year, it is at times like these that a court like the ECtHR is needed more than ever and perhaps the time has come to reflect on the ECtHR and what needs to be done to preserve its authority: reduce the excessive length of proceedings; seriously reconsider the criteria for assessing the existence of an "effective domestic remedy" or the requirements for issuing interim measures; rethink its funding model, freeing it from the threat of budget cuts resulting from unilateral decisions by member states dissatisfied with the judgments; rethink the selection processes for its judges, taking the choice out of the hands of governments.

Your Excellency, European Commissioner: less than two years have passed since in January 2020 you received in Brussels a MEDEL delegation chaired by me and we told you of our concerns about the situation of the Judiciary in several Member States. Never before like in these almost two years have the principles underpinning the rule of law been so tested. But also never before has there been such a large and united reaction by European magistrates in defence of this common heritage.

It is symbolic that we are holding this conference in Lisbon, where the Portuguese Judges' Association has its headquarters, an organisation that brought the case before the Court of Justice of the European Union, enabling it to state unequivocally for the first time that respect for the independence of the judiciary is a basic principle of EU law that must be respected by all States.

On 11 January 2020, judges from over 22 European States gathered in Poland and marched side by side through the streets of Warsaw, demanding respect for the separation of powers and the rule of law. Magistrates from countries with different judicial traditions and systems stated with one voice, unequivocally, that they were all, first and foremost, European magistrates. The thousands of citizens throughout Warsaw who followed the demonstration shouted one word: "Constitution".

At heart, they all—magistrates and citizens—spoke one language: the language of the rule of law. That is the only language that can truly unite the whole of Europe.

This conference is but a continuation of that January 2020 march—another step on the road that everyone—judges, prosecutors, lawyers and academics—wants to travel towards full respect for the rule of law and a truly united Europe.

On behalf of MEDEL, and with warm thanks to all the speakers who agreed to share their knowledge with us, I wish you all a good conference and good work.

## **Contents**

## **Notes on the Independence of the Judiciary**

João Caupers(B)

Nova School of Law, Universidade Nova de Lisboa, Lisbon, Portugal<EMAIL_ADDRESS>
The conditions under which these notes were prepared reflect the little time that could be devoted to their preparation. Circumstances inherent to my position drastically limited my availability to do better. This explains the erratic tone of my considerations, which I have not had time to organise and systematise properly. Added to this, of course, is the fact that I am not a professional judge, which makes it difficult to have a correct perception of the scale of the problem of the independence of judges, not because I am not aware of its decisive importance, but because I do not have the essential field experience.

The same circumstances explain why I have not been able to include a precise indication of sources in the appropriate places in these notes. I have used mainly documents from the European Commission, the Consultative Council of European Judges, Amnesty International and articles published in the Journal of International and European Law, to which I have added news from various European media. I ask your indulgence for any inaccuracies or errors resulting from possible cursory readings and hasty conclusions.

Taking article 203 of the Constitution of the Portuguese Republic ("CPR") as a starting point to approach judicial power, I will begin by stating that "courts are independent and subject only to the law". Our Fundamental Law is not limited to this proclamation; the main provision guaranteeing the independence of judges is the provision of article 216(1):

"Judges are irremovable and cannot be transferred, suspended, retired or dismissed except in cases laid down by the law".

Note that this reference to law refers, under the terms of Article 164(m), to the concept of parliament-made law, that is, to laws enacted by the Portuguese Parliament ("*Assembleia da República*").

This proclamation of the independence of the courts, accompanied by its main guarantee, is far from being an originality of the CPR. Choosing three countries whose legal systems are close to ours, we find very similar constitutional formulations - two prior to our Constitution and one subsequent. Article 117(1) and (2) of the Spanish Constitution of 1978 also emphasises the independence, subjection to the law and irremovability of judges. The same is true of the Bonn Basic Law, which also guarantees in Article 97 the independence, subjection to the law and irremovability of judges. For its part, Articles 101 and 107 of the Constitution of the Italian Republic of 1947 also emphasise judges' exclusive subjection to the law and their irremovability.

If this sample is representative of the European situation (and legal and constitutional tradition), as I believe it is, we may safely conclude that the independence of the judiciary, which is a fundamental guarantee of the rule of law, covers, as far as judges are concerned, three main vectors: their independence, their exclusive subjection to the law and their irremovability.

Let us discern these concepts. Independence should be taken to mean the judge's ability to decide freely - that is, based on his or her convictions, knowledge and experience - on all matters within his or her jurisdiction, not forgetting, of course, that the judge may not abstain from judging, which would constitute a denial of justice. The implementation of this freedom requires, on the one hand, that the judge is not subject to any kind of pressure, "suggestions" or threats - in short, interferences - from anyone, notably from the other powers of the State. On the other hand, it requires judges' immunity from criminal or civil proceedings aimed at holding them liable for decisions taken.

In this regard, the common practice of the Polish Supreme Court's Disciplinary Chamber to lift the immunity of judges in order to allow criminal proceedings to be brought against them is a regrettable method of trying to influence their decisions, and therefore worthy of criticism.

Independence is also jeopardised when state officials promote or allow repeated attacks in the media against judges and their decisions. This has been happening in Hungary, and also happened in Portugal not long ago, when constitutional judges were threatened with "legal sanctions" by members of the government and members of parliament at the time and by the press behind the coalition that supported them, for having decided to invalidate decisions taken by the government during the Troika's intervention in Portugal.1

The independence of judges is also undermined when a legislative amendment in Slovakia introduces the possibility of holding a judge liable for having issued a "legal opinion expressed in a decision unless a criminal offense has been committed thereby" - whatever this means, which is not clear from the English translation. In any case, the articulation of this norm with the one that defines the new crime of "bending the law" - which determines that this "bending of the law" occurs when the judge supposedly "applies the law arbitrarily" - creates a space of imprecision and doubt that one cannot but criticize. A more obtuse and obscure way of eroding the independence of judges could hardly be discovered.

It is further undermined when intrusive information about judges, particularly about their political past, is made public with the aim of discrediting them for having allegedly collaborated with an authoritarian regime, as is the case in Poland.

The independence of judges is once again impaired when a politically appointed body systematically contradicts a representative body of magistrates, as is the case in Hungary, in the context of the conflict between the National Judicial Office, linked to the government, and the National Judicial Council, an independent body, over the selection

<sup>1</sup> The threat of "legal sanctions", which was quoted in the press at the time, was generally understood, including by myself, to refer to disciplinary sanctions. This is understandable, since, within the framework of the national legal system, no matter how great the imagination and legal ignorance of the authors of the threat, other types of legal sanctions would certainly not be at issue: criminal sanctions (there was no criminal conduct in question), administrative sanctions (there was no administrate offence), political sanctions (motion of censure against the Government), sanctions under international law (retaliation, boycott of imports, freezing of bank deposits, etc.), financial sanctions (compensation responsibility), civil sanctions (compulsory measures).

of court presidents. It should be noted that the President of the National Judicial Office consistently overrules the selection of presidents promoted by the National Judicial Council and appoints interim presidents for the courts, who then remain in office.

The second criteria of independence - subjection to the law - implies that judges must respect and apply the legal norms in force, from different sources, deciding autonomously and in accordance with the principles and rules of interpretation and gap-filling in force in their legal system and with their conscience. We legal professionals know how common it is to diverge in the interpretation of the law. In Portugal, we say that "if you put three lawyers together in a room to discuss the interpretation of a norm, you will obtain four opinions".

A judge's autonomy to decide the applicable law is inseparable from his independence - and from his lack of liability. In countries which do not have binding precedents (as is the case in common law countries), however, there are admissible and legitimate instruments which, in the name of legal security and certainty in the application of the law, seek to reduce the divergent interpretations of judges by establishing the "good law". However, such mechanisms should be contained within the perimeter of the judiciary and, as far as possible, should not offend the autonomy of lower courts (appeals for the standardisation of jurisprudence, in Portugal).

The third criterion - the irremovability of judges - has several facets.

First, it entails that judges may not be transferred from one court to another except in cases expressly laid down by the law. Irremovability is disrespected when the composition of existing judicial panels is changed, as has been or is still being done in Poland, or when judges are unilaterally and compulsorily transferred from one court to another, as in Slovakia.

Second, irremovability implies that judges may not be suspended other than in cases laid down by the law, in particular for disciplinary reasons discovered during a due process procedure, which implies, at the very least, in addition to respect for the adversary procedure and the presumption of innocence, the possibility of appeal.

Third, it implies that judges may not be retired other than for reasons of age or certified health reasons, as established by law, or as a result of disciplinary misconduct for which they are convicted, after completion of a due process procedure.

Lastly, it implies that judges may only be removed from office for disciplinary reasons, also determined according to due process.

It should be noted that this requirement of due process in proceedings likely to affect the work of a judge is not always respected, as seems to be the case in proceedings before the Polish Supreme Court's Disciplinary Chamber.

In cases where a judge performs his or her duties for a predetermined period of time, the end of the term of office may not be brought forward except in cases laid down by the law. Bringing forward the end of the term of office for reasons of political expediency or convenience seriously jeopardises the judge's irremovability. This seems to be the situation in Slovakia after the last constitutional amendment.

My understanding of the legal framework of the independence of the judiciary - or the courts, or the judges, depending on one's preferred wording – leads me to make four other recommendations.

#### 4 J. Caupers

First, judges should not be appointed by, or with any intervention from, the Government, and should advance in their careers on the basis of merit, duly assessed by other judges or by a body on which they are represented.

Second, presidents of higher courts should be chosen by their peers, without any intervention from another sovereign body.

Third, the judiciary should have its own governing bodies.

Lastly, these bodies should not have the majority of their members appointed by the Government or according to political criteria. Regrettably, the latter seems to be occurring in Poland.

By way of an epilogue, I would like to leave a message to judges. To ensure their independence, in my view, judges should maintain a cautious distance from those who influence public opinion and should keep their opinions to themselves. I am not particularly fond of judges appearing on prime-time television answering journalists' questions on court problems. When a judge takes on the role of a commentator in the media or on social media, he is endangering his or her independence. The duty to inform the public should be performed in an institutional manner, by the appropriate governing bodies of the judiciary or by associations representing magistrates, and should not be used to feed gossip or satisfy morbid curiosity2.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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<sup>2</sup> When I wrote these lines, I was not yet aware of the work, which subsequently came into my hands, "Portuguese Judges' Pledge of Ethics, Principles for Quality and Responsibility", authored by the Portuguese Judges' Trade Union Association and published in Lisbon in 2009. It includes, on page 53, a principle which demonstrates that Portuguese judges are aware of this problem. This principle, relating to the duty of confidentiality, states that "judges shall refuse to make statements or comments which imply value judgements with regard to judicial or investigative proceedings, including on matters which it is reasonable to foresee may be the subject of proceedings".

## **EU Fiddling While the Rule of Law Burns**

Laurent Pech(B)

Full Professor of Law, Dean of Law and Head of the Sutherland School of Law, University College Dublin, Laurent Pech, Dublin, Ireland<EMAIL_ADDRESS>
Imagine a Country Where, Due to the Cumulative Effect of Repeated and Grossly Unconstitutional Legislative Changes Targeting the Judiciary, the Executive and Legislative Powers Can "Interfere Throughout the Entire Structure and Output of the Justice System";<sup>1</sup>

Imagine a country whose government routinely refuses to "publish and implement fully"<sup>2</sup> multiple rulings of the national constitutional court regarding judicial independence matters;

Imagine a country whose national authorities appoint an acting president of the constitutional court in manifest breach of the constitution;3

Imagine a country whose national authorities appoint several individuals to the constitutional court at 1.30am, a few hours before the same constitutional court was due hear a case regarding this very issue, to create an unconstitutional fait accompli;4

Imagine a country whose ruling party also forces a legislative change "in the early hours of Friday morning", even though the change "had not even been on the agenda" of the Parliament the day before, so as to void pending cases challenging the legality of the manifestly irregular judicial appointments made by the ruling coalition via a manifestly unconstitutionally re-established national council of the judiciary; J. Shotter (2019).

Imagine a country whose president openly disregards several freezing orders of the national supreme administrative court in order to force dozens of unlawful appointments to the national supreme court, in particular but not only to two new chambers which are themselves manifestly in violation of the right to an independent tribunal established by law;<sup>5</sup>

<sup>1</sup> European semester report for Poland, 27 February 2019, SWD (2019) 1020 final, p. 42: https://ec.europa.eu/info/sites/info/files/file\_import/2019-european-semester-countryreport-poland\_en.pdf

<sup>2</sup> European Commission, Reasoned Proposal in accordance with Article 7(1) TEU regarding the rule of law situation in Poland, para. 101.

<sup>3</sup> Ibid., para 102 et seq.

<sup>4</sup> PACE, The functioning of democratic institutions in Poland, Report Doc. 15025, 6 January 2020, para. 28.

<sup>5</sup> See ECtHR judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719; Judgment of 8 November 2021, Doli ´nska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819; Judgment of 3 February 2022, Advance Pharma SP. Z O.O v Poland, CE:ECHR:2022:0203JUD000146920.

#### 6 L. Pech

Imagine a country whose president's re-election was subsequently validated by the same individuals he unlawfully appointed to the supreme court in "blatant defiance of the rule of law"6 notwithstanding the obvious "risk of setting up an unlawful court";7

Imagine a country whose national authorities forcibly retire the president of a supreme court on the basis of a retroactive lowered retirement age notwithstanding the constitutional provision providing for a fixed term of six years;<sup>8</sup>

Imagine a country whose national authorities issue official instructions to ignore national supreme court's rulings; E. Ivanova (2018).

Imagine a country whose national authorities organise the mass dismissal of presidents and vice-presidents of ordinary courts "without any specific criteria, without justification and without judicial review";9

Imagine a country whose national authorities hide behind a patently unlawful decision of the captured office of the supposedly independent data protection authority J. Zajadło (2019) to refuse to comply with a final ruling of the national supreme administrative court to prevent the disclosure of information establishing the unlawful composition of the national council for the judiciary;10

Imagine a country whose prime minister equates independent judges with Naziera collaborators11 while the ruling coalition promotes a "vision" whereby judges are expected to be always "on the side of the state", with the conduct of judges being described as "dangerous" when they "turn against the legislative and executive authorities";<sup>12</sup>

Imagine a country where a secret "troll farm" is set up within a ministry of justice so as to organise smear campaigns via for instance criminal acts such as the provision of confidential and/or personal information to an anonymous Twitter account in respect of most vocal and/or senior judges who defend judicial independence M. Pankowska (2019)

<sup>11</sup> See Statement of the Board of Polish Judges Association Iustitia concerning the words of Prime Minister Mateusz Morawiecki, 24 April 2019: https://www.iustitia.pl/en/activity/inf ormations/3012-statement-of-the-board-of-polish-judges-association-iustitia-concerning-thewords-of-prime-minister-mateusz-morawiecki.

<sup>6</sup> See Doli ´nska-Ficek and Ozimek v. Poland, ibid., paras. 338 and 349.

<sup>7</sup> Ibid., para. 330.

<sup>8</sup> See W. Sadurski (2018) and Case C-619/18 Commission v. Poland (Independence of the Supreme Court), EU:C:2018:1021.

<sup>9</sup> European Commission contribution for the hearing of Poland on 11 December 2018, Council document 15197/18, 5 December 2018, p. 15. See also ECtHR judgment of 29 June 2021, Broda and Bojara v Poland, CE:ECHR:2021:1108JUD004986819 (removal by the Minister of Justice of vice-presidents of Kielce Regional Court did not respect their right of access to a court).

<sup>10</sup> See ENCJ letter to the speaker of the Poland's Sejm and the head of the chancellery dated 8 August 2019 asking for the publication of the support lists of the judicial members of Poland's KRS (National Council for the Judiciary) as ordered by the Supreme Administrative Court of Poland: https://www.encj.eu/node/534.

<sup>12</sup> Batory Foundation and European Stability Initiative, "Poland's deepening crisis. When the rule of law dies in Europe", 14 December 2019: https://www.esiweb.org/index.php?lang=en&id= 156&document\_ID=196.

all the while the government is claiming that they "have never undermined the legitimacy of the Supreme Court, ordinary courts or judges – individually or collectively"; 13

Imagine a country where authorities adopt a grossly unconstitutional law so as to give themselves the opportunity to discipline judges at will for the content of their rulings;14

Imagine a country where national authorities routinely harass and threaten judges for complying with ECJ orders and/or judgments; open disciplinary investigations against judges who submit requests for a preliminary ruling to the ECJ and actually suspend them and/or cut their wages for doing so; do the same against judges who apply EU and/or ECHR rule of law related judgments;<sup>15</sup>

Imagine a country where prosecutors are instructed to immediately report any judges doing so16 and where captured prosecutors also launch bogus criminal proceedings against judges disliked by the prosecutor general who is also simultaneously the minister of justice on the back of a legislation described by the Venice Commission as organising "a system with such wide and unchecked powers" that such a system "is unacceptable in a state governed by the rule of law";<sup>17</sup>

Imagine a country where prosecutors who participate to a congress of prosecutors during which abusive interferences with their independence were denounced, are subsequently investigated by those abusively interfering with their independence; M. Jałoszewski (2019).

Imagine a country where independent minded prosecutors are "posted to places that are far from where they live in circumstances that bear the signs of harassment",<sup>18</sup> what's more, in the midst of a pandemic and without any advance notice;

Imagine a country where the prosecutor general "wants to prosecute 1,278 judges"19 at once for signing a letter to the OSCE to highlight the planned holding of manifestly irregular presidential elections;

<sup>13</sup> Polish government document submitted to the Council dated 28 January 2019, "Summary of actions undertaken by Poland in order to address European Commission's recommendations concerning the reform of the Polish judiciary", pp. 5–6. This confidential document was revealed by Oko.press on 5 February 2019: https://oko.press/rzad-do-rady-europejskiej-komisji-i-pan stw-ue-arogancka-samoobrona-ujawniamy-dokument/

<sup>14</sup> See e.g. Iustitia, (2019). See also Case C-791/19, Commission v Poland (Disciplinary regime for judges), EU:C:2021:596 (holding i.a. that Poland's new disciplinary regime allows the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offence).

<sup>15</sup> See most recently, and without being exhaustive, M. Jałoszewski, (2021) Jałoszewski, (2021) M. Jałoszewski, (2022).

<sup>16</sup> See letter from Poland's National Prosecutor dated 16 December 2019 reproduced and translated by THEMIS: http://themis-sedziowie.eu/materials-in-english/a-letter-from-the-prosecutor-nat ional-to-subordinate-prosecutors/.

<sup>17</sup> Opinion on the Act on the Public Prosecutor's Office as amended, Opinion 892/2017, para. 97 (2016 Polish Act has created a system with 'wide and unchecked powers' which 'is unacceptable in a state governed by the rule of law as it could open the door to arbitrariness').

<sup>18</sup> Declaration of retired judges of the Constitutional Tribunal of 24 January 2021, Rule of Law in Poland, 25 January 2021: https://ruleoflaw.pl/declaration-of-retired-judges-of-the-constitut ional-tribunal-of-24-january-2021/

<sup>19</sup> M. Jałoszewski (2020).

Imagine a country where the same prosecutor general is investigating "several dozen old Supreme Court judges, including the former president of the Supreme Court" M. Jałoszewski (2021) and the current president of the criminal chamber of the Supreme Court so as to bring bogus criminal charges against them;

Imagine a country where a judge has been unable to adjudicate and see his pay cut by 25% for over 700 days following his attempt to implement a CJEU ruling; M. Jałoszewski (2020) and Rechters voor Rechters (2020) Imagine a country where national judgments reinstating unlawfully suspended judges are routinely ignored M. Jałoszewski (2021). And M. Jałoszewski(2022) and a special relief fund<sup>20</sup> has to be set up to provide financial assistance to judges suspended by an unlawful body on the basis of unlawful rules for inter alia adjudicating in compliance with ECJ and ECtHR rule of law related rulings;21

Imagine a country whose authorities routinely and deliberately provide misleading information and accounts to EU institutions,22 including to the ECJ as regards the actual aims of their so-called judicial "reforms" or the reality of their actions;23

Imagine a country where national authorities routinely violate rulings of the national courts applying ECJ and/or ECtHR judgments relating to judicial independence matters and consider them "non-existent" R. Lawson (2021);

Imagine a country whose national authorities make repeated use of an unlawfully composed and unlawfully presided<sup>24</sup> local puppet A. W˛adołowska (2020) constitutional court to give a veneer of legality to the systemic violation of national constitutional, EU and ECHR rule of law requirements; to find EU and ECHR fundamental provisions regarding the right to an independent tribunal established by law "unconstitutional" and do so in the name of the "rule of law" and the primacy of the national constitution, both of which are in fact repeatedly violated in plain sight See generally L. Pech, P. Wachowiec and D. Mazur (2021);

<sup>20</sup> http://www.domsedziegoseniora.pl/fundusz-pomocy/

<sup>21</sup> See in particular ECJ judgment of 15 July 2021 in Case C-791/19, Commission v Poland (Disciplinary regime for judges), EU:C:2021:596 and ECtHR judgment of 22 July 2021 in Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719.

<sup>22</sup> See e.g. Council of the EU, Report on the hearing held by the Council on 22 June 2021, 9 July 2021, 103346/21, pp. 3 and 4 versus the reality of the situation outlined in L. Pech and P. Bard, The Commission's Rule of Law Report and the EU Monitoring and Enforcement of Article 2 TEU values, Study for the European Parliament, PE 727/551, February 2022, p. 42.

<sup>23</sup> See e.g. L. Pech and S. Platon (2019) ("Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovability, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the "explanatory memorandum to the draft New Law on the Supreme Court" and on the basis of which one may have "serious doubts as to whether the reform of the retirement age" was not in fact made "with the aim of side-lining a certain group of judges of that court").

<sup>24</sup> See ECtHR judgment of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718 and European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021.

This country is not a fictional one. This country is a member state of the EU. This country is Poland under the rule of the Orwellian-named "Law and Justice" party.

As observed on 16 October 2019 by the then First President of Poland's Supreme Court, "The end result is that the rule of law in Poland is not simply at risk: it is being erased".<sup>25</sup>

What has been the EU's reaction in the face of this sustained, deliberate annihilation of judicial independence in a broad context of systemic dismantlement of all checks and balances making Poland's the most autocratising country in the world in 2020 according to the leading V-DEM Institute?26

Well, we have seen a grand total of five infringement actions launched by the Commission since the beginning of Poland's rule of law breakdown six years ago, with the Commission also activating Article 7(1) procedure in December 2017 on the back of which the Council has organised a grand total five formal hearings, that is, a grand total of one hearing per year on average.27

By contrast, Polish judges, have submitted a total of 40 preliminary ruling requests raising the most serious judicial independence issues, at the price of their careers, livelihood and safety.

Writing in 2018, I warned that the situation in Poland "has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU's internal market itself L Pech and P Wachowiec (2019)." This is no longer a mere threat but a clear and present danger.

Poland should now be considered, to borrow an expression from the financial world, as a country in default from a judicial independence point of view.

Following the "constitutionalisation" of lawlessness post 7 October 2021 via their puppet constitutional "court", Polish authorities should now be considered as having de facto positioned Poland outside the EU's legal order.<sup>28</sup>

Looking beyond Poland, the consolidation of the EU's first authoritarian member state, that is, Orban's Hungary,<sup>29</sup> has simultaneously created the foundation for the

<sup>25</sup> Public address at the conference of the Norwegian Association of Lawyers, "Restricting Judicial Independence and the Rule of Law in Poland", Oslo, 16 October 2019: http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/AllItems/2019.10.16\_ Referat%20PPSN%20w%20Oslo%20-%20wersja%20ang.pdf.

<sup>26</sup> V-Dem Institute, Autocratization Turns Viral. Democracy Report 2021, March 2021.

<sup>27</sup> For further details, see L. Pech and P. Bard, (2022) pp. 40–41 and pp. 50–53.

<sup>28</sup> See Editorial comments, "Clear and present danger: Poland, the rule of law & primacy" (2021) 58 Common Market Law Review 1635, p. 1643: "With this ruling [of 7 October 2021], Poland de facto positions itself in the outer margins of, or even outside, the EU's legal order.".

<sup>29</sup> V-Dem Institute, Autocratization Changing Nature. Democracy Report 2022, March 2022, p. 25: "Yet, six of the EU's 27 member states are autocratizing. With more than 20% of EU members autocratizing, the union is starting to face its own wave of autocratization (Fig. 16). Among the union members, Hungary and Poland are among the top autocratizers in the world over the last decade. Hungary turned into an electoral autocracy in 2018. Autocratization is now also affecting Slovenia, which is one of the top autocratizers in the world over the last three years (Fig. 15). Croatia, Czech Republic, and Greece are also newly autocratizing countries. In addition, the EU's neighbors on the eastern flank are becoming increasingly autocratic.".

progressive autocratic gangrenisation of the EU's decision-making processes, not to forget the EU institutions themselves.

On current trajectory, it is only a matter of time before the ongoing and worsening process of democratic and rule of law backsliding eventually triggers a knock-on process of legal disintegration, a process which is bound to accelerate further due to growing instances where autocratic forces use captured constitutional "courts" to disregard EU but also constitutional and ECHR requirements relating to judicial independence but also to disregard any value, right or body of rules disliked by the local autocrat.

One may only hope the Commission and the Council will stop denying this unforgiving reality and continuing to pretend for instance that the Union is a union of democracies and that dialogue coupled with reports will help address what is a "clear and present danger" L Pech and P Wachowiec (2018) for the survival of the EU legal order.

The President of the CJEU could not have been clearer when he publicly and unprecedentedly stated on 4 November 2021 that:

"[…] it is no exaggeration to say that its foundations as a Union based on the rule of law are under threat and that the very survival of the European project in its current form is at stake. […] while the EU does not impose any particular model on the judicial systems of the Member States, it does lay down red lines. Respect for those red lines and for the rule of law in general is the foundation for mutual trust. The European project – and the solidarity among Member States that this project entails – depends on that trust K Lenaerts (2021).

One may only hope the Commission and the Council will heed this unprecedented warning before we "reach a tipping point" L Pech and P Wachowiec (2020) and see the EU's interconnected legal ecosystem collapsing due to the accelerating destruction of the independence of the judiciary we are witnessing in Poland.

#### **References**

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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## **"Sentimento do Mundo" – On the Endless Battle for a Justice System**

Marc de Werd(B)

Amsterdam University, Amsterdam, Netherlands<EMAIL_ADDRESS>
#### **1 A Warning from the Past**

In the summer of 1787, New Yorkers were about to ratify a constitution for the US. In a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788 urged New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. The essays (commonly referred to as the Federalist Papers) were published anonymously, under the pen name "Publius," in various New York state newspapers of the time. On May 28, 1788, Alexander Hamilton published Federalist 78, titled "The Judicial Department." In this famous essay, he offered a powerful defense of judicial review. Hamilton argued that only a federal judge could guarantee constitutional rights and provide an effective check on state power. At the same time, Hamilton had to convince his political opponents that the unelected judiciary would never dominate the other branches of government. Drawing on the ideas of Montesquieu, he deliberately portrayed the judiciary as "the least dangerous branch of government". A branch that is inherently weak because it can control neither the country's financial resources nor the army.

Hamilton's reassurance to his opponents can easily be turned into a warning. The rule of law is rarely safe in the hands of politicians alone. The independence of the judiciary is a principle which, by its very nature, can only be poorly protected by legal provisions; such provisions can all too easily be changed by the legislature, or misinterpreted or even ignored by an ambitious government which feels secure and confident if it can count on a comfortable majority in parliament.

The practical relevance of Hamilton's insights should not be underestimated. Too often we take for granted the proper functioning of democracy and our legal system and the fundamental values that underpin them. Yet, the past five years have shown that even in Member States belonging to the European Union, judicial independence is no longer guaranteed. To everyone's surprise, we have witnessed the rapid erosion of the rule of law in Poland. It is hard to understand how quickly a great and admired country, which played a leading role in overcoming the former division between "Eastern" and "Western" Europe, could fall back in so little time. Who would have expected that, after the proclamation of the Universal Declaration of Human Rights in New York exactly 73 years ago tomorrow, the courts in Europe should remind the Member States once again of the principles of justice which are also the basis and the essence of the Council of Europe and the EU?

Alexander Hamilton's warnings are today more appropriate than ever. If, as we have seen in Poland, a Member State gets to the point where a government abuses an election victory by introducing LGBT-free zones for populist reasons, and judges are not supposed to protect the rights of the people concerned, then the judiciary indeed has become the least dangerous branch of government. These insights from the past expose the nasty face of a legal system that shows little interest in justice. On October 7th 2021 the Polish Constitutional Court further damaged the already fragile relationship with the EU and the other Member States, by denying primacy and precedence of EU law over national law.<sup>1</sup> But we can be equally concerned about the Hungarian case decided less than a month later by the Court of Justice.2 In this case the ECJ had to remind the Hungarian Supreme Court that no disciplinary proceedings can be brought against a lower national court on the sole ground that it has referred a question to the Court for a preliminary ruling under that provision. Even more disturbing, perhaps, is that the referring court had originally intended to draw the ECJ's attention to inappropriate external and internal pressure within the Hungarian judiciary.

#### **2 ECJ Case Law**

The sad conclusion today is that we are still in the midst of a crisis of the rule of law and not in its aftermath. Yet, there is also good news. For both courts in Europe have acted swiftly and built up an impressive body of case law in order to respond to the crisis in Poland. We should be grateful to the Portuguese Association of Judges for the opening move in Luxembourg. The case of Associação Sindical dos Juízes Portugueses3 gave the Court the opportunity to bring the independence of the judiciary in the Member States under the protective mechanism of the TEU. For the reasoning behind its judgment on judicial independence, it relied on its previous case law, which had always leaned heavily on the ECtHR's earlier findings in this regard. By doing so the court provided itself with the legal framework that it would apply six months later in its Celmer judgment4.

In retrospect, none of this was a coincidence. It is an open secret that in the Portuguese case the ECJ had sent a strong signal to Poland (and others) and was preparing for a future engagement with what might be independent Polish courts. The 'Celmer' case was in turn followed by a flood of judgments from the courts in Europe. Among these are landmark

<sup>1</sup> Constitutional Tribunal: The activities of the EU authorities, which extend beyond the limits of their competence that has been delegated by Poland are in conflict with the Constitution (communique) – Themis (themis-sedziowie.eu) I will not turn a blind eye to those Polish officials pointing out at the German Constitutional Court in Karlsruhe, that ruled in 2020 that the ECJ had acted beyond its competence in a case relating to the European Central Bank. It is true that the European Commission took legal action in June against Germany. But unlike the Polish government claims, the German court was not challenging the supremacy of the law or the court. What it did was questioning the way the ECJ had applied EU law. I will not take a stance on this matter, since it requires extensive reflection, but in my view this subject can legitimately be debated within the boundaries of existing European case law.

<sup>2</sup> Case C-564/19 (2021) ECLI:EU:C:2021:949.

<sup>3</sup> Case C-64/16 (2018) ECLI:EU:C:2018:117.

<sup>4</sup> Case C-216/18 (2018) PPU, ECLI:EU:C:2018:586.

decisions on the lowering of the retirement age of judges and public prosecutors (case C-192/18) and on the newly created Disciplinary Chamber of the Polish Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18)5.

In 2021 also the ECtHR stepped into the ring to stop the further backsliding of the rule of law in Poland. In a short period of time, it found numerous violations of the Convention. First in its Xero Flor judgment6, on the composition of the Polish Constitutional Tribunal, then in its Broda ruling7, on the premature termination of Polish court (vice) presidents. In the Reczkowicz case8 the court found, together with the ECJ, that the Polish Disciplinary Chamber did not meet the standard of a "court established by law", and in its Dolinska judgment9 it urged Poland (again) to take rapid action to resolve the lack of independence of the National Council of the Judiciary. An impressive long list of newly communicated cases from Poland, is waiting now for decision or judgment in the Strasbourg Court.

#### **3 Effects on the National Level**

The strong messages from both the Luxembourg and Strasbourg courts were welcomed in the Member States and satisfied moral indignation. In the following, the difficulties encountered by the national courts in applying the case-law of the Court, particularly in cases of surrender, will be discussed, as the consequences of the Polish crisis of the rule of law have become particularly apparent there.

In *Celmer* the ECJ instructed the national courts to make a multi-layered assessment in surrender cases. The executing authority must determine, specifically and precisely, whether there are substantial grounds for believing that a person will run a real risk if he is surrendered to a Member State. The Court does so on account of systemic or generalised deficiencies of the independence of the issuing Member State's judiciary, having regard to his or her personal situation, as well as to the nature of the offence in question, and the factual context, and – this is remarkable - in the light of "the information provided by the issuing Member State".

The court sets the bar very high in Celmer. Only to a very limited extent can an executing authority refuse to execute an EAW. In practice, requests for surrender from Poland are rarely refused. There is widespread concern, also among judges, that the Celmer test falls short. The Court 'responded' to these concerns last year but not to

<sup>5</sup> Also see the judgment in Joined Cases C-748/19 to C-754/19: EU law precludes the regime in force in Poland which permits the Minister for Justice to second judges to higher criminal courts; secondments which that minister – who is also the Public Prosecutor General – may terminate at any time without stating reasons.

<sup>6</sup> ECtHR, judgment of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland, ECLI:CE:ECHR:2021:0507JUD000490718.

<sup>7</sup> ECtHR, judgment of 29 June 2021, Broda and Bojara v. Poland, ECLI:CE:ECHR:2021:0629JUD002669118.

<sup>8</sup> ECtHR, judgment of 22 July 2021, Reczkowicz v. Poland, ECLI:CE:ECHR:2021:0722JUD004344719.

<sup>9</sup> ECtHR, judgment of 8 November 2021, Doli ´nska-Ficek an Ozimek v. Poland, ECLI:CE:ECHR:2021:1108JUD004986819.

everyone's satisfaction. It ruled that even in the case of established systemic shortcomings, a concrete assessment of the case is necessary. Such an assessment should not assume that there are substantial grounds for believing that a person would face a real risk of not receiving a fair trial following his surrender. (Joined Cases C-354/20 PPU and C-412/20 PPU).

In light of the strong position the ECJ takes on surrender (to Poland), the decision of the Vestfold District Court in Norway 0f 27 October 2021 is worth noting. The court refused surrender in that case on the grounds of general deficiencies in judicial independence in Poland. The Norwegian court adapted the Celmer test in that "the greater the general risk of a breach, the less specific grounds for a violation of the right to a fair trial should be required in the particular case".<sup>10</sup> According to the Norwegian court, the ECJ does not leave the national court sufficient discretion to provide effective legal protection in surrender cases; therefore, the Court's strict line is adjusted to a more realistic approach of a "real risk" of an unfair trial. The Vestfold judge's decision has been appealed in Norway. But it is certainly not the first time that a national court has disagreed with the ECJ on the level of legal protection in human rights matters.

It goes without saying that the Vestfold court goes far beyond the ECJ and that its ruling is, to put it mildly, not even in the spirit of the ECJ. But the Irish Supreme Court and the Court of Amsterdam have also asked the ECJ whether the shortcomings of the Polish judiciary are not such that they in themselves pose a real risk to the right to a fair trial.

It is important to point out here that a difference of opinion between judges is not in itself a cause for concern. On the contrary, I would call it a valuable feature of jurisprudence. Let us not forget that in many Member States the development of law is often initiated by lower judges. A reasoned dissent from a first instance court and the subsequent reconsideration by a higher court have an intrinsic value for the administration of justice. In this way, the law remains a living constitution.

In this connection, there is often talk of the famous 'dialogue' between judges at European and national level, but on closer inspection it is not yet very substantial. The preliminary ruling procedure is not in itself a dialogue if it is limited to a Q&A format. A real dialogue between courts presupposes reciprocity and requires a serious exchange of arguments, with a willingness not only to listen to each other but also to change position if necessary, on the basis of reasonableness and preferably conviction.

However, we have to conclude that this dialogue between judges, which should lead to progressive insight in surrender cases, does not function well. Exemplary is the fact that some national surrender judges do not find sufficient resonance with the ECJ on the workability of its jurisprudence. If true this is a serious matter. When signals come from member states that the ECJ provides insufficient guidance for effective legal protection and when its jurisprudence is called 'unrealistic', the Court cannot let this pass without providing a convincing counter argument.

<sup>10</sup> Vestfold tingrett - Kjennelse: TVES-2021–144871.

#### **4 How About us, National Courts?**

Let us not forget that dialogue with the ECJ also serves a legitimate self-interest of national courts. Involvement and responsibility in the development of the Court's jurisprudence also contributes to the credibility of judges at the national level and strengthens public confidence in judicial fairness and justice. After all, it is the national judges who have to apply European law as interpreted by the ECJ in concrete cases. This is sometimes not an easy task. For many in the Member States, it is difficult to grasp how a systemic weakness in another country's legal system can be 'remedied' in an individual case, under the Celmer test, by reassuring statements from authorities in that country who are themselves part of the problem. Justice should not demand the utmost of people's imagination.

Admittedly, the input of national judges into this dialogue is still very limited. That is a shortcoming and we need to change it. With an anticipated further integration of the Member States into the EU, the ECJ will have to rule much more than before on fundamental shortcomings in one of the Member States. In this respect, the ECJ cannot do without the critical input of national courts. If only for the sake of its legitimacy and the cooperation at national level that it needs. Therefore, dissent from the national courts should be valued positively and not considered too easily as rebellion or disobedience. This puts great responsibilities on the shoulders of national judges. They will have to develop a proactive and strategic attitude in order to contribute effectively to the development of European law.

Meanwhile, the ECJ is not to be envied in the role it has to play. It is quite understandable that it does not want to be tempted, as a judicial authority, to make a general political judgment on the rule of law in Poland. After all, a crisis of the rule of law in a Member State is essentially a political issue for the EU, not a legal problem to be solved first and foremost by judges, insofar as there is a role for judges here. The Court would certainly be stronger if the political European institutions not only spoke out strongly against violations in the Member States, but also took full responsibility for acting accordingly and effectively.

The crisis of the rule of law in Poland has led to a flood of preliminary references and cases before the European courts. The 'juridification' of the political problem with Poland plays into the hands of the Polish Government and is being misused as a negotiating tactic, leading to further destabilisation of the EU. The mere fact that these cases are 'sub iudice' should not become a false argument for European politicians to further postpone necessary decisions in the current crisis.

#### **5 Sentimento Do Mundo**

In 1940, the famous Brazilian poet, Carlos Drummond de Andrade, expressed his deepest concern and anxiety about what awaited him in the coming years. My reflection on the endless battle for a justice system could have the same sad effect. My reflection on the endless struggle for a legal system could have the same sad effect. But that is not my intention and it would also be wrong. For the inherent fragility of the legal system should not be confused with weakness. The sensation of vulnerability serves a purpose. It warns us of nearing danger, it defines what is essential, it encourages us to choose which side we are on, and it unites in times of crisis. The courts must protect the rights of the individual; the European political institutions must lead the community to a secure future. Let us respect their responsibilities, and above all, encourage them to put words into action.

What is heartening and reassuring today is that in the current crisis almost the entire European community is speaking out fearlessly about the protection of human rights. That is why I am tempted to read Carlos de Andrades' poem, in a spirit that may not quite reflect his sad feelings at the time. But why couldn't a poem, like the law, be a living document and help us move forward? After all, "two hands and the sense of the world" (as the poem reads) may not seem much, but it is certainly a good start to building Europe's promising future.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **The Twilight of the Gods: Independence of the Judiciary and the Rule of Law in Europe**

Paulo Pinto De Albuquerque1(B) and Alexandre Au-Yong Oliveira2

<sup>1</sup> Universidade Católica Portuguesa, Lisbon, Portugal<EMAIL_ADDRESS>
<sup>2</sup> Department at Centro de Estudos Judiciários, (National School of Magistrates, Lisbon), Lisbon, Portugal

#### **1 Introduction**

Gazing upon today's European judicial landscape, one may have the feeling that the final battle of the ancient gods of democracy is about to make itself heard. When that gaze extends itself through History, as the title of this paper suggests, we might even hear the notes of Wagner's *magnum opus* and all that comes with it, including the eternal return of the same, but strangely different. Different actors in different situations but with the same type of utterances.

Maybe the battle is already lost. Who knows? Not even the gods. So let us leave the land of the old gods (if possible) and let us look closer at what is happening across Europe, taking the independence (or lack of) of the judiciary as a symptom for the social unrest that anxiously awaits some kind of deliverance.

Attacks on the independence of the judiciary are self-evident in more than one European country and have been for almost a decade now. In some countries this collective event does not seem to be slowing its pace but maintaining its momentum or even increasing it. As we shall see, the two main European Courts, the European Court of Human Rights (hereinafter "ECtHR") and the Court of Justice of the European Union (hereinafter "CJEU) have been frequently confronted with these attacks and, albeit their natural differences, their discourse has much in common.

It should also be noted that, although the attacks have become more obvious in some countries than in others, we think that this common discourse should be used to strengthen judicial independence all across Europe and not only in this or that country. Maybe the real battle is against overlooking, where justice is concerned, that there is still much to do. If Democracy is to be not only morally superior but an important factor in improving our collective performance, it is required that all public institutions overcome their natural biases and partiality, in a continuous learning process. The institution of an independent justice system, even if it fails in this or that particular case, serves society as a whole. It does so by counteracting the volatile variations of individual sympathies with calmer and more stable points of view. The rules of law and our institutions embody those common values and remind each and everyone of us of the public interest. This interest is often more remote than our personal preferences and, due to that distance, is all the more impotent in the determination of our actions. It is by creating and maintaining tribunals, with their inherent independence and impartiality, that we make sure there are persons whose immediate interest is to uphold those laws when we go astray. In David Hume's wise words, it is "in the *execution* and *decision* of justice [that] men [and women] acquire a security against each others weakness and passion, as well as against their own".<sup>1</sup>

#### **2 A Positivized System of Natural Law**

As we all know, after the second world war and the atrocities of the Nazis, a process for the institutionalization of Human Rights took place all around the world, giving birth from within the United Nations to the Universal Declaration of Human Rights (1948). Shortly after, in Europe, the Council of Europe was established (1949). Two years later, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "ECHR") was opened for signature by the members of the Council of Europe (hereinafter "CoE"). As has been readily recognized, the institutionalization of Human Rights by the ECHR is even deeper than that of the Universal Declaration and, in trying to state basic rights clearly, "the ECHR goes into considerably greater detail than most such instruments".<sup>2</sup>

Furthermore, the European Union's primary law added strength to the ECHR, for entry into the Union and continuing membership thereof is conditional upon the commitment to due observance of human rights, as laid down in the ECHR and result from the constitutional traditions of the member states.<sup>3</sup> This commitment is reinforced by the Charter of Fundamental Rights of the EU (hereinafter "CFREU"), that came into force in 2009 along with the Treaty of Lisbon.4

Even for the most entrenched positivistic mindset, these forms of institutionalization of Human Rights have significantly transformed the old natural rights debate. If in 1945 Hans Kelsen could write that "Legal norms may have any kind of content"5 and that proposition could uphold its claim of validity at least in the realm of sovereign nation states, with the advent of the institutionalization of Human Rights at an international level and, in particular, at the European regional level or at the EU transnational level, such a claim can only be read in the context of the ECHR and EU primary law, its Treaties and the CFREU.

Where Europe is concerned, it then becomes obvious that no national law is legitimately binding, regardless of the amount of popular support the executive or the legislature have, if it is judged by the European Court of Human Rights (hereinafter "ECtHR")

<sup>1</sup> D. Hume (1739) 589.

<sup>2</sup> N. MacCormick (2007) 196.

<sup>3</sup> Cf. Article 6(3) of the Treaty of the European Union. Sustaining the interpretation exposed in the text, Neil MacCormick, ibid. To the same effect, judgement of the CJEU in Case C-791/19, Commission v. Poland [2021] ECLI:EU:C:2021:596, para 52.

<sup>4</sup> Article 52(3) of the Charter states, "In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection".

<sup>5</sup> H. Kelsen,(1945) p. 113. As is well known H.L.A Hart, as late as 1961, also stood by this bold assertion (H.L.A. Hart (1994) p. 207).

or by the Court of Justice of the European Union (hereinafter "CJEU") to infringe the rights enshrined in the aforementioned regional and transnational legal instruments. Of course this may cause some natural discomfort, for a previous democratic majority, which adopted or signed up for those legal instruments, may not be in accord with a future and present majority. Albeit this possible state of affairs, derived from the mere passage of time and sociological variations, the (institutional) fact remains that, as Mac-Cormick puts it, "Only states willing to cut themselves loose from the Council of Europe and the European Union, and to forgo the advantages that membership brings, can evade this positivized system of natural law".6 Of course, if these States do cut loose, that would leave their populations, in particular their minorities, even more exposed to the follies of power.

Notwithstanding such considerations, in the referred positivized system of natural law we "naturally" encounter in article 6(1) of the ECHR the fundamental right to a fair and public hearing by an "independent and impartial tribunal established by law". On the other hand, in the field of EU primary law, article 2 of the Treaty on the European Union (hereinafter "TEU") clearly states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the *rule of law and respect for human rights*, including the rights of persons belonging to minorities. These values are declared to be common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. As the CJEU has impressively stated, "it must be borne in mind that Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which, as noted in paragraph 127 above, are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States".7 Furthermore, according to the first paragraph of Article 49 of the TEU, the respect of these values and a commitment to promote them are necessary conditions to become a member of the EU. Article 19(1) of the TEU, obliges Member States to provide for remedies sufficient to ensure effective legal protection in the fields covered by Union law. To that effect, in accordance with article 47(2) of the CFREU, everyone is entitled to a fair and public hearing by an "independent and impartial tribunal previously established by law".

#### **3 The Separation of Powers and the Independence of the Judiciary and the Rule of Law, as Fundamental** *De Jure* **Principles**

Even taking into account the above-mentioned positivized system of Human Rights, a purely positivistic perspective may still be insufficient to understand the complexities at issue in the independence of the judiciary. We will try to make this point clear in what follows.

The independence of the judiciary is inevitably intertwined both with the principle of separation of powers and the rule of law, sometimes referred to as the *Rechtsstaat*, *l'Etat de droit* or law-state. As we all know, sinceMontesquieu, this most basic of principles was

<sup>6</sup> N. MacCormick (2007) p. 274.

<sup>7</sup> Case C-156/21, Hungary v Parliament and Council [2022] ECLI:EU:C:2022:97, para 232.

conceived to be essential to the maintenance of a free government and to avoid despotic power. It is hard to conceive an unbiased application of the Law without the separation of powers. It could be stated, in a Kantian vein, that the separation of powers is an *a priori* condition of the possibility of justice. However, where the principle of separation of powers is concerned, as noted by the CJEU, "the European Court of Human Rights has repeatedly stated that, although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction".8 It follows from the case-law of both these Courts (the CJEU and the ECtHR), in what is here relevant, that Member States have "discretion" as regards the principle of separation of powers. The principle is therefore not binding in itself as would be expected from the point of view of a positivist, who may even question if it forms part of Law at all.

On the other hand, according to the rule of law, laws should be previously enacted instruments of general application. Furthermore, these laws, so as to avoid arbitrariness and promote legal certainty, should be clearly defined and, as the ECtHR puts it, "foreseeable in [their] application".9 Obviously, it is not always easy to establish general rules in a clear and foreseeable manner. That is why it is difficult to conceive a legal system as a mere body of rules telling us, for example, if in situation X, then do P or Q. Many a time it is necessary to make the rule clear or even, when it was not thought of beforehand, to make the rule itself, deriving it from well-established principles.<sup>10</sup> Of course it is in these cases that the borders between the juridical and the political may become controversial and the rivalry for the power of decision most visible. This situation then begs the question on what differentiates Law from Politics.

In addition, the rule of law poses other important problems. First, the rules themselves, although clear and foreseeable, may be invalid. But invalid in relation to what standard, one may ask. On the other hand, if the rules pertain to a certain national system, one may ask who has the power to recognize their invalidity? Thirdly, rules may suffer changes in the middle of an ongoing case, by the hand of a strong legislature, by interpretations of national Constitutional Courts or even, as we shall see, by way of the Constitution-maker. This is where the mentioned system of positivized natural law and the primacy of the ECHR and EU law show themselves to be all the more problematic. Here, as may be recalled, for some authors, *de facto* acceptance of authority is the ultimate binding force or "rule of recognition" of Law.<sup>11</sup> As we shall also see, the acceptance

<sup>8</sup> Joined Cases C-585/18, C-624/18 and C-625/18 A.K. and Others [2019] ECLI:EU:C:2019:982, para 130.

<sup>9</sup> Guðmundur Andri Ástráðsson v. Iceland App no 26374/18 (ECtHR, 1 December 2020), para 238.

<sup>10</sup> R.M. Dworkin(1977).

<sup>11</sup> This rule of recognition, as is well known, cannot be valid or invalid. See H.L.A. Hart (1994), 107–110.

of the mentioned primacy is in fact problematic, at least for some Member States.<sup>12</sup> But, taken from a different perspective, if the ultimate test of what is the Law is not *de facto* acceptance but its *de jure* grounding in well-established principles that, although not positivized, form part of the Law, then its attractiveness and force lies within itself and not elsewhere in its mere acceptance. And therein lies its important difference from the Political.

#### **4 Independence and Impartiality: Institution-Agencies and Institution-Arrangements**

If independence means to be solely under one's own jurisdiction, in the case of the judiciary's independence, it cannot be understood without the principles of separation of powers and the rule of law. The independence of the judiciary is therefore necessarily a complex guarantee with a multiplicity of aspects. For example, the well known Recommendation CM/Rec(2010)12 of the Venice Commission,<sup>13</sup> wishing to promote the independence of judges by Member States of the CoE, divides itself into seven broad categories: (i) external independence; (ii) internal independence; (iii) Councils for the judiciary; (iv) Independence, efficiency and resources [of judges and judicial systems]; (v) status of the judge; (vi) Duties and responsibilities [of judges]; (vii) ethics of judges.14

On the other hand, in the case-law of the ECtHR, it is common to distinguish between "independence", including the appearance of independence, and "impartiality", including objective and subjective tests of evaluation.<sup>15</sup> From our point of view, "independence" has more of an objective character, more to do with institutional architecture (external and internal), that is to say the way the courts (the adjudicating bodies) have been constructed to relate to other "outside" bodies and between themselves. "Impartiality" is more related to personal qualities of the judge (bias). One may say that independence is a precondition of impartiality and that for a judge to be impartial or at least have an (objective) appearance of impartiality it is foremost necessary, but not sufficient, for her to be independent. Albeit these abstract distinctions, in actuality, it is admittedly difficult to isolate "independence" and "impartiality" so they are mostly conceived of as an *ensemble*. 16

<sup>12</sup> Maybe due to this problem, some decisions of the Courts observed below, in particular those of the ECtHR, instead of powerful utterances of juris dictio that aim at bringing about transformations in the institutional order, seem to fall short of the finishing line.

<sup>13</sup> The Venice Commission is the Council of Europe's advisory body on constitutional matters. The role of the Venice Commission is to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law. For more details *<* https://www.venice.coe.int/WebForms/pages/?p=01\_Presen tation *>* accessed 27 January 2024.

<sup>14</sup> Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, *<* https://search.coe.int/cm/Pages/result\_details. aspx?ObjectID=09000016805afb78 *>* accessed 27 January 2024.

<sup>15</sup> See Denisov v. Ukraine App no 76639/11 (ECtHR, 25 September 2018), paras 60–64.

<sup>16</sup> Cf. S. Guinchard (2021) 876.

In this paper we will first focus our attention on institution-agencies (or bodies),17 for example High Councils for the Judiciary or special disciplinary chambers, so as to make visible the courts perviousness to external forces. As we shall see, this potential influence occurs through the way these specific bodies, including special sections of the courts themselves, have been composed by the legislature or executive. Here our focus will therefore be on the institutional agencies concerning the judiciary that at least in appearance open it up to the influence of other powers, in particular to the legislature or executive, but also to any other *de facto* powers (for example, political parties, the media, corporate entities or even experts).

We will then move on to institution-arrangements, in particular rules that are directly aimed at the judge as a professional and a person, such as disciplinary offences, criminal proceedings and personal liability, thus relating to the status of the judge and the inherent principles of irresponsibility and irremovability. Obviously, institution-agencies and institution-arrangements are more often than not bundled together, for the agencies act through the legal arrangements that have been enshrined in the laws of the land and thus serve as power tools or institutional weapons, to be wielded between their holders, whatever the specific motivation or strategy may be.

Thirdly, we will focus our attention on what seems to us to be a highly atypical procedure, enacted through the ordinary law and the national Constitution, to silence one single judge in Hungary, due to his defence of the independence of the judiciary.

Last but not least, we further deepen our analysis relating to the appointment of judges to strategic courts, in particular, to Courts of Appeal and Constitutional Courts, that is to say to positions in the adjudicating bodies themselves.

Of course, the essential purpose of the guarantee of independence of the judiciary is to avoid any risk of pressure on the content of judicial decisions and thus to dispel, in actuality and in the minds of individuals and the public, any reasonable doubts as to the imperviousness of the judges concerned and their neutrality with respect to the interests before them. Although the immediate effect of the lack of judicial independence may be the lack of public trust in the judicial system,18 when combined with other phenomena, like encroachments on the freedom of the press and the downgrading of certain citizens based, for example, on their gender, sexual orientation or religion, the long-term effect becomes the elimination of difference and freedom and the occultation of the true nature of power. On the other hand, by not ensuring an independent judiciary (courts and public prosecution), the state forfeits the means that may serve to fight, inter alia, high-level corruption. Without independence, instead of the judiciary assuming its "natural" place in the play of checks and balances, it becomes the extension of a friend or foe policy. Through the bridling of the multitude, democracy a ghost in the shell, justice a charade.

<sup>17</sup> Obviously we are here indebted to Neil MacCormick's legal theory.

<sup>18</sup> Evidently this lack of trust may be caused by other factors, like the inefficiency of the courts, for example when handling high level corruption cases. These kinds of factors also have a high potential to cause public dissatisfaction and may be used as triggers for the interference of a given executive. Inefficiency may be due, among others, to the lack of resources afforded to the judiciary, legal loopholes or human mistakes.

#### **5 Institution-Agencies: The Indirect Control of the Judiciary Through the Composition of Related Bodies**

It is quite common in Europe to find Councils of the judiciary with important powers, in particular, concerning the appointment, disciplining and dismissal of judges. Due to the sensitive nature of these functions, the composition and mode of appointment of the members of Councils of the judiciary, in view of accessing their independence, have been questioned in cases before the ECtHR and the CJEU.

A clear-cut case in this respect was *Oleksandr Volkov v. Ukraine,*<sup>19</sup> adjudicated by the Fifth Section of the ECtHR. The same standards for evaluating the independence of these bodies were later reiterated by the Grand Chamber of the same Court in the case *Denisov v. Ukraine*. <sup>20</sup> In the first of these cases, the applicant, a Supreme Court Judge, had been dismissed from the post of judge by a recommendation of the High Council of Justice later confirmed by Parliament. In the second case, the applicant had been dismissed from the position of president of a court of appeal also following a recommendation of Ukraine's High Council of Justice in disciplinary proceedings.

While evaluating if the Ukraine's High Council could be considered a "independent and impartial tribunal" under article 6(1) of the ECHR, the ECtHR found very serious structural deficiencies in the composition, modes of appointment and administrative and financial workings of that institutional agency.

Where the deficiencies concerned the composition of the High Council, the ECtHR underlined the small minority of judges represented in the High Council in contrast with half of the High Council being composed of members directly originating from the political or prosecution authorities. In particular, of a total of twenty members, in addition to the Minister of Justice and the Prosecutor General being *ex officio* members, six members were chosen by Parliament and by the President of the Republic (three each) and two were chosen by the All-Ukrainian Conference of Prosecutors. Only three members were chosen by judges, in addition to the President of the Supreme Court being an *ex officio* member.<sup>21</sup> But, as further pointed out in *Oleksandr Volkov,*<sup>22</sup> even if half of the members of the High Council were to be judges, that fact alone would not be enough to guarantee the independence and impartiality of that body. On this point the ECtHR stressed the importance of judges being appointed by their peers and not by external powers.<sup>23</sup>

The ECtHR further noted that the weighty presence of elements originating from prosecution authorities was a manifest vulnerability of the High Council, in view of the functional role of prosecutors in domestic judicial proceedings, namely where criminal

<sup>19</sup> Oleksandr Volkov v. Ukraine App no 21722/11 (ECtHR, 9 January 2013).

<sup>20</sup> Denisov v. Ukraine (n 14).

<sup>21</sup> The remaining six members were designated by the Assembly of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal Educational Establishments and Scientific Institutions.

<sup>22</sup> Oleksandr Volkov v. Ukraine (n 18), para 112.

<sup>23</sup> According to the Venice Commission's Recommendation CM/Rec(2010)12, not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.

investigations are concerned. Indeed, underscoring the presence of authorities responsible for criminal investigations in a body where the disciplining of judges is an important part of the job, might not be such a good idea.

Finally, the ECtHR pointed out that the fact that members of the disciplinary body participated in the final determination of disciplinary cases, after playing an important role in the preliminary inquiry of those same cases, could also cast doubt on the impartiality of those members.

In another case, *Ramos Nunes de Carvalho e Sá v. Portugal*, first brought before a Chamber of the ECtHR (Fourth Section), the independence and impartiality of the Portuguese High Council of Judges (*Conselho Superior da Magistratura***,** hereinafter**,**CSM), was also evaluated in connection with disciplinary procedures.24 Here, the Chamber concluded that the independence and impartiality of the CSM "may be open to doubt".25 These doubts were related to the fact that the CSM was composed by the President of the Supreme Court and another 7 judges elected by their peers, in contrast with 9 members of which 2 were designated by the President of the Republic and 7 elected by Parliament (in accordance with Article 218 of the Constitution of the Portuguese Republic). In this respect, the Chamber underlined "the majority of non-judicial members appointed directly by the executive and legislative authorities".<sup>26</sup> This reasoning is in line, it must be noted, with Recommendation no 6 of the evaluation report on Portugal by the Group of States against Corruption (GRECO), adopted on 4 December 2015, where it was recommended that "the role of the judicial councils as guarantors of the independence of judges and of the judiciary is strengthened, in particular, by providing in law that not less than half their members are judges elected by their peers".<sup>27</sup>

The case of *Ramos Nunes de Carvalho e Sá v. Portugal*, on the request of the Portuguese Government, was subsequently adjudicated by the Grand Chamber of the ECtHR.<sup>28</sup> However, on the specific point of the alleged lack of independence and impartiality of the CSM, the Grand Chamber considered that it lacked jurisdiction to adjudicate on it, due to the untimely manner in which this particular complaint had been brought to the Court.<sup>29</sup> In spite of this, it is interesting to hear Judge Pinto de Albuquerque on this matter, in his concurring opinion: "It is my firm belief that the CSM's composition, according to the constitutional framework from 1982 to 1997 and the subsequent presidential practice of appointing one judge, is in line with the role of judicial councils as guarantors of judicial independence. The moral authority and political representativeness of the President of the Republic are in and of themselves a solid guarantee of a

<sup>24</sup> Ramos Nunes de Carvalho e Sá v. Portugal Apps nos 55391/13, 57728/13 and 74041/13 (ECtHR, 21 June 2016).

fair balance between the democratic and judicial components in the Portuguese judicial governance body".30 To fully understand this statement, it helps to recall that the Portuguese President of the Republic is elected by universal and direct suffrage (in contrast with systems where the President is chosen by Parliament) and is therefore conceived of as an autonomous body (from the executive and legislative).<sup>31</sup>

Despite the position of Pinto de Albuquerque regarding the CSM, this judge, together with judges Yudkivska (Ukraine), Vuˇcini´c (Montenegro), Turkovi´c (Croatia), Dedov (Russia) and Hüseynov (Azerbaijan), were of the opinion that the decision of the Grand Chamber had fallen short in respect of the lack of independence of the Judicial Division of the Portuguese Supreme Court, regarding its jurisdiction on appeals against disciplinary decisions taken by the CSM. To put it into context, the decisions of this High Council were subject to an appeal to the Judicial Division of the Supreme Court. The President of the Supreme Court could thereby participate in the decisions of the High Council under appeal and, although not participating in the referred Judicial Division, could determine, to a certain extent, the composition of that division. Due to the shortcomings of this institutional architecture, the appearance of impartiality could not be said to have been obtained and the composition of the tribunal (in this case the Supreme Court viewed in its relation to the CSM) did not pass the test of objective impartiality. Indeed, hierarchical or other links could not be ruled out *a priori*, even if no subjective bias was to be found in the specific members of the adjudicating body. The dissenting opinion therefore stressed the importance of complete institutional integrity of the bodies whose powers included the disciplining of judges, starting at the level of objective appearances.32 This separate opinion further underlined that the High Council was simultaneously the body with jurisdiction to decide on disciplinary actions concerning Supreme Court judges, that is to say that the judicial review of disciplinary sanctions was performed by judges who were also under the disciplinary jurisdiction of the body whose decisions were being reviewed. As had been noted in*Oleksandr Volkov* this also jeopardised the "independence and impartiality" of the reviewing court. On this last point, however, the Grand Chamber considered that the standards applied in *Oleksandr Volkov* should not be applicable to the case at hand for no serious issues had been established in terms of structural deficiencies or an appearance of bias within the Portuguese CSM. This last argument comes somewhat as a surprise for, as we may recall, earlier in its reasoning, the Grand Chamber had considered that it had no jurisdiction to rule on the alleged lack of independence of the CSM.33

At this point it will be interesting to turn our attention to the EU and case-law of the CJEU, starting with the Grand Chamber's judgement of 19 November 2019, in the preliminary ruling procedure under Article 267, Joined Cases C-585/18, C-624/18 and

<sup>30</sup> Ramos Nunes de Carvalho e Sá v. Portugal (n 27), concurring opinion of Judge Pinto de Albuquerque, para 21.

<sup>31</sup> See J. J. Gomes Canotilho (2003) 620.

<sup>32</sup> Ramos Nunes de Carvalho e Sá v. Portugal (n 27), joint partly dissenting opinions of Judges Yudkivska (Ukraine), Vuˇcini´c (Montenegro), Pinto de Albuquerque (Portugal), Turkovi´c (Croatia), Dedov (Russia) and Hüseynov (Azerbaijan), paras 4–7.

<sup>33</sup> Ibid, para 9.

C-625/18, *A.K. and Others*. <sup>34</sup> The questions to be answered here by the CJEU, by referral of the Polish Supreme Court, the *S˛ad Najwy˙zszy,* were primarily related to the creation of a new Disciplinary Chamber within that "same" Supreme Court. This new Disciplinary Chamber had been provided with a somewhat extensive jurisdiction, including not only the exclusive jurisdiction to adjudicate on disciplinary proceedings concerning Supreme Court judges, but also for proceedings in the field of labour law and social security and those regarding the already controversial issue of the retirement of those judges.35 Not surprisingly, at the centre of the main proceedings, were cases related to the compulsory retirement of three Supreme Court judges.

The issues relating to the (lack of) independence of this new Disciplinary Chamber were, in turn, connected to the question of the (lack of) independence of the Polish High Council for Justice, the *Krajowa Rada S˛adownictwa* (hereinafter "KRS"). This connection with the KRS was necessarily raised for the judges of the new Disciplinary Chamber were all, without exception, to be appointed by the President of the Republic by proposal of the KRS.

It should be noted that the CJEU, due to the very nature of the preliminary ruling procedure (where it is only called upon to resolve problems of interpretation concerning EU Law), did not have the power to declare that the KRS was not independent and that this lack of independence necessarily affected the independence of the new Disciplinary Chamber, for that power belonged to the national courts. Within its legitimate powers, however, the CJEU did not miss the chance to advance legal interpretations that would allow the referring Court to form a correct understanding on this issue.<sup>36</sup> Indeed, on the point relating to the concept of an "independent and impartial tribunal", foreseen in the second paragraph of Article 47 of the CFREU, the CJEU underlined that the interpretation of that concept should safeguard a level of protection that does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights.37 In its understanding of the independence and impartiality requirements, the CJEU therefore aligned itself with the case-law of the ECtHR, stressing the importance, *inter alia*, of the mode of appointment of the members of a given body, the existence of guarantees against outside pressures, and the appearance of independence.

<sup>34</sup> Joined Cases C-585/18, C-624/18 and C-625/18 (n 7).

<sup>35</sup> The CJEU on the 24 July 2019, in an infringement procedure under Article 258 TFEU, declared that the Republic of Poland, by lowering the retirement age of the judges of the S˛ad Najwy˙zszy (Supreme Court, Poland), notably without any transitional provisions and, at the same time, giving discretionary powers to the President of the Republic to allow certain judges to continue in duties after the new retirement age, had failed to ensure effective legal protection in the fields covered by Union law as foreseen in second subparagraph of Article 19(1) TEU (Case C-619/18, Commission v Poland [2019] EU:C:2019:531). On the unequal treatment of women and men where the retirement age of Polish judges and Public Prosecutor's were concerned, see Case C-192/18, Commission v Poland [2019] ECLI:EU:C:2019:924.

<sup>36</sup> On the CJEU's assertion of its own powers on the subjects of the rule of law and the independence of the judiciary, under Article 19(1) of the TEU, beginning with the case Associação Sindical dos Juízes Portugueses (Case C-64/16, EU:C:2018:117), see A. T. Pérez (2020).

<sup>37</sup> Joined Cases C 585/18, C 624/18 and C 625/18 (n 7), para 118.

In this context, and regarding the role of the KRS in the appointment process - a role that, in the absence of judicial review of its decisions, surely necessitated its own independence -, the CJEU could not but underline certain alleged facts that clearly indicated risks of influence from the legislature and the executive. In the first place, as it was newly composed (following amendments to the law in late 2017), the KRS was formed by reducing the ongoing four-year term in office of the former members of that body. In other words, the KRS had been expunged of its former members. Secondly, whereas previously the 15 members of the KRS belonging to the judiciary were elected by their peers, they were now elected by a branch of the legislature. In sum, members directly originating from or elected by the political authorities now amounted to 23 of the 25 members of that body.<sup>38</sup>

The CJEU also stressed the potential for irregularities, which could have adversely affected the process of appointment of certain members of the newly formed KRS, namely the lack of transparency and possible illegality of the election.39 In this regard, according to the CJEU, particular attention should also be taken to the actual conduct of the newly formed KRS, specially its silence regarding the independence of the judiciary, in spite of very controversial ongoing legislative reforms.40 In addition to that silence, according to what was stated by the referring court, the KRS, or members thereof, had instead publicly criticised members of the *S˛ad Najwy˙zszy* (Supreme Court), including for having referred questions to the CJEU for a preliminary ruling.

A little more than a year after this ruling (2 March 2020), in Case C-824/18, *A.B. and Others*, <sup>41</sup> another preliminary ruling procedure, the Grand Chamber of the CJEU was confronted with similar issues concerning the KRS. This case related not to disciplinary issues but to appeals lodged before the referring court, the Polish Supreme Administrative Court, by candidates for judicial positions within the Civil and Criminal Chambers of the *S˛ad Najwy˙zszy* (Supreme Court). These candidates were now challenging resolutions by which the KRS did not accept their applications and, instead, submitted, to the President of the Republic, other candidates for appointment to those same positions.

As pointed out in this case, the act by which the KRS put forward a candidate for appointment to a position of judge at the Supreme Court was an essential condition for such a candidate to be appointed. The situation was even more problematic due to the fact that neither the decisions of the KRS nor of the President of the Republic were subject to an effective judicial review. In effect, regarding the appeal regime applicable to the resolutions of the KRS (forwarded to the referring Supreme Administrative Court), it was constructed in such a way to be a mere travesty of a right. Indeed, any individual appeal did not prevent another candidate to be appointed for the same vacancy if all the other candidates had not also appealed, including the successfully proposed candidate. In other words, candidates would have to appeal against their own interests for the appeal to have any real effect.

<sup>38</sup> Joined Cases C 585/18, C 624/18 and C 625/18 (n 7), para 143.

<sup>39</sup> Ibid, paras 43 and 143.

<sup>40</sup> It should be recalled that according to Article 186(1) of the Polish Constitution, the KRS "shall be the guardian of the independence of the courts and of the judges".

<sup>41</sup> Case C-824/18, A.B. and Others [2019] ECLI:EU:C:2021:153.

These issues were all the more important because the recent legal reforms (for the most part advanced during 2018) included a law that reduced the retirement age of the judges of the Polish Supreme Court, from 70 to 65 years, while making the possibility of continuing to hold office beyond that age subject to authorisation by the President of the Republic.<sup>42</sup> Put in simple and concise terms, by compulsively retiring judges of the Supreme Court and, at same time, giving powers to the KRS (which was now under the influence of the legislature and the executive) to propose new judges for positions in the Supreme Court as well as judges to sit in the Disciplinary Chamber (which, in its turn, had the power to adjudicate on cases related to the compulsory retirement of Supreme Court judges), the Government was turning the highest ordinary court of the land, at least in appearance, if not in substance, notoriously pervious to outside influence. The Supreme Court would therefore lose any hope of being an independent and impartial tribunal within the meaning of EU Law and the ECHR.

Lastly, it should also be mentioned that the jurisdiction of the referring Supreme Administrative Court to adjudicate on cases of appointment of judges to the Supreme Court was subsequently declared unconstitutional by the Polish Constitutional Court, entailing the termination of all pending cases. This decision led to a further amendment of the Law on 26 April 2019, that stated that there was to be no future right of appeal in individual cases regarding the appointment of Supreme Court judges. In other words, the powers of the referring Court to decide on the ongoing cases had been taken away, including the power to pose preliminary questions to the CJEU. These new (institutional) facts obliged the CJEU to go even further in its interpretation of EU Law, leading it to state that the Constitutional Court's judgment did not call into question the need for judicial review of appointments to judicial positions at the Supreme Court and, in particular, of the resolutions of the KRS adopted in the framework of such a process. Moreover, noted the CJEU, in light of the principle of primacy of EU Law, not even constitutional provisions could be allowed to undermine the unity and effectiveness of EU Law and, if need be, the jurisdiction of the referring Court should thus be maintained, in spite of the Constitutional Court's decision and subsequent amendments of the law depriving it of that same jurisdiction.

The principle of primacy of EU Law was reaffirmed by the Grand Chamber of the CJEU in its judgement of the 6 October 2021, in the preliminary ruling case C-487/19, also regarding Poland. In this case, at issue in the main proceedings was a decision to transfer a judge to a lower capacity, that is, from a position of appeal to functions of first instance. That decision had been taken by a president of a court appointed, through the use of discretionary powers, by the Minister of Justice. Furthermore, the judge to be transferred belonged to the former composition of the KRS and was known for public criticisms of the ongoing judicial reforms. The transfer decision was contested by the targeted judge before the KRS, who brazenly ruled that there was no need to adjudicate on the case. The concerned judge then appealed the KRS´s (non) ruling to the Supreme Court, just to find that his case was to be decided by the newly created Chamber of Extraordinary Control and Public Affairs. At this point the appellant requested that the judges of that Chamber be recused for they did not offer sufficient guarantees of independence and impartiality. Indeed, those judges had been appointed to the Chamber,

<sup>42</sup> On this particular aspect see Case C-619/18, Commission v Poland (n 34).

following a resolution of the KRS that, in turn, had been subject to an appeal by candidates whose applications had been ignored in the very same way as in the proceedings underlying Case C-824/18*, A.B. and Others*. In spite of the pending appeal against the appointment of the judges to the Chamber, a single judge of that Chamber dismissed the case on inadmissibility grounds, without even having access to the respective case-file (that was at the court adjudicating on the recusal application). Here, the CJEU expressively stated that the primacy principle entailed that an order given by a "court" should be considered null and void if it could not be considered to have emanated from an "independent and impartial tribunal previously established by law".<sup>43</sup> In short, if the legislature were to create so-called "courts" to bypass the rule of law, the orders emanating from such puppet entities should be considered of no legal value by the "real" courts.

Coming back to the case-law of the ECtHR (in judgements given by the First Section), due to what has already been described, it may come with little surprise that both the aforementioned Disciplinary Chamber and Chamber of Extraordinary Review and Public Affairs of the Polish Supreme Court have been found not to be "tribunals established by law".<sup>44</sup>

As the patient reader most certainly has gathered by now, all these highly technical juridical discussions echo the hammering of godly instruments forged not out of steel, but with equally devastating effects for the integrity of the institutional agencies whose purpose is to uphold the rule of law. But let us further ourselves even more into the mist of the surrounding battlefield.

#### **6 Institution-Arrangements: The Intimidation of the Judiciary Through Disciplinary Offences, Criminal Responsibility and Personal Liability**

The considerations relating to the KRS, put forth in cases *A.K. and others* and *A.B and others*, were reiterated by the Grand Chamber of the CJEU, on 15 July 2021, in Case C-791/19, *Commission v. Poland*. <sup>45</sup> The principle novelty here being that the judgement was no longer related to a preliminary ruling procedure but to an action brought against Poland by the Commission, under Article 258 of the TFEU, regarding that Member State's failure to fulfil its obligations under the Treaties. This CJEU judgement further analysed other legal provisions of the ongoing reforms, most notably, the possibility of the content of judicial decisions, including decisions to make a preliminary ruling request, to be considered disciplinary offences.

Where disciplinary regimes were concerned, it was not overlooked by the CJEU that these are necessary exceptions to the principle of irresponsibility, which, in justified extraordinary cases, may contribute to the accountability and effectiveness of the judicial system. The problem was the lack of clarity of the provisions concerning what was to

<sup>43</sup> Case C-487/19, W. Z. [2021] ECLI:EU:C:2021:798. ˙

<sup>44</sup> See, respectively, Reczkowicz v. Poland and Doli ´nska-Ficek and Ozimek v. Poland, Apps nos 43447/19, 49868/19 and 57511/19 (ECtHR, 22 July 2021 and 8 November 2021).

<sup>45</sup> Case C-791/19, Commission v. Poland (n 3).

be understood as a disciplinary offence, in particular regarding judicial decisions. In effect, instead of opting for the concept "obvious and gross violations of the law", already consolidated in its meaning by the existing case-law of the Polish Supreme Court, the national legislature had now opted for the expression "obvious violation of the law", eliminating thereby the term "gross". This less demanding condition, specially when applied to mere "findings of error" in judicial decisions, therefore raised particular concerns regarding the new disciplinary regime forming a part of a system of political control of the content of judicial decisions.

The clear determination of what should be considered a disciplinary offence was all the more important in the context of the ongoing legal reforms that included, as we have seen, the early retirement of Supreme Court judges, a new composition of the KRS with powers to propose new judges for positions in the Supreme Court and choose the judges who were to sit in the new Chambers, in addition to powers now conferred upon the President of the controversial Disciplinary Chamber to discretionarily designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts.

Various disciplinary proceedings relating to preliminary ruling requests, in the short time after the creation of the new disciplinary bodies, had already been brought against Polish judges. In addition, a Polish judge had been suspended for ordering the *Sejm* (the Lower House of the Polish Parliament) to produce documents relating to the process for appointing the members of the KRS in its new composition. In addition, the defence rights of the judges submitted to disciplinary proceedings, such as the right to be heard and of access to a lawyer, had been significantly restricted by the new laws.

The CJEU thus explicitly declared that these legal reforms were all failures of the Republic of Poland to fulfil its obligations under the Treaties, in particular, to guarantee the independence and impartiality of its justice system.

As we all know by now, the story of the crisis of the rule of law in Poland is still far from seeing an end to it. If the above mentioned legal reforms undermining the imperviousness of Justice and opening it up to the influence of the executive and legislative were not already enough, at the time of writing, still pending is Case C-204/21, *Commission v. Poland*. <sup>46</sup> What's at stake in this action, brought on the 1 April 2021, is the exclusive jurisdiction conferred upon the Extraordinary Review and Public Affairs Chamber to examine complaints based on the lack of independence of a judge or tribunal, therefore preventing other national courts to review compliance with the EU standards of independence and impartiality. Simultaneously, such a review when done by another domestic court may be classified as a disciplinary offence. This action also seeks to declare that the Republic of Poland has further failed to fulfil its EU obligations by conferring decision-making powers to the Disciplinary Chamber of the Supreme Court (whose independence and impartiality are allegedly not guaranteed), regarding cases which have a direct impact on the status and tenure of office of judges and assessors (trainee judges), such as allowing judges and assessors to be criminally prosecuted or detained, in addition to cases relating to the retirement, employment and social insurance of Supreme Court judges.

<sup>46</sup> Case C-204/21, Commission v. Poland [2021], report not available at the time of writing.

With all these recent reforms, including specific criminal provisions for judges and prosecutors, one cannot but have the impression - however hard it is to admit in relation to a EU Member State - that the situation in Poland has certain traces that remind us of the Turkish judicial crisis that began in 2016 and where more than 4500 judges and prosecutors have been sacked and at least 2450 jailed.47

Apparently to counteract such dangerous tendencies, in case C-204/21, the Vice-President of the CJEU ordered, on the 14 July 2021,<sup>48</sup> interim measures determining the suspension of new powers conferred to the Extraordinary Review and Public Affairs Chamber and the Disciplinary Chamber.

However, on the very same day the Polish Constitutional Tribunal adjudicated that, insofar as the CJEU acts *ultra vires* (exceeding its scope of powers) and thereby imposes obligations on the Republic of Poland by prescribing interim measures pertaining to the organisational structure of Polish courts, certain provisions of the Treaties are deemed inconsistent with the Polish Constitution and are thereby not covered by the principles of precedence and direct application.<sup>49</sup> Shortly afterwards, in line with the Constitutional Tribunal's decision, the Republic of Poland, alleging that the order of the 14 July was contrary to the Polish constitutional order, requested the CJEU to cancel it. The CJEU promptly dismissed this request on the 6 October 2021,<sup>50</sup> recalling once again that not even national laws of constitutional level could undermine the principle of primacy of EU Law. In turn, on the day after (7 October 2021) the Polish Constitutional Tribunal adjudicated on an application lodged by the Polish Prime Minister, asserting that certain provisions of the EU Treaties (mainly article 19(1), second subparagraph, TEU), were inconsistent with Poland's Constitution, for the following reasons: 1) such provisions allow the EU authorities to act outside the scope of competences conferred upon them by the Republic of Poland in the Treaties; 2) under those provisions the Polish Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; 3) they prevent the Republic of Poland to function as a sovereign and democratic state.51 Indeed, according to the Polish Tribunal's reading of the Treaties, the EU, namely the CJEU, has no competence regarding the organisational structure of Polish Courts.<sup>52</sup> On the other hand, the Constitution of the Republic of Poland, expressing the sovereignty of the Republic and its national identity, establishes the framework of the legal guarantees for the independence of judges. It follows that

<sup>47</sup> These judges and prosecutors (and their families), had no right to a trial (not even an unfair one) and whose property was confiscated, were thereby condemned to being social outcasts. On this subject, see J. I. Matos (2021).

<sup>48</sup> Order of the Vice-President of the Court [2021] ECLI:EU:C:2021:593.

<sup>49</sup> Judgement of the Polish Constitutional Tribunal, ref n P 7/20 *<* https://trybunal.gov.pl/en/hea rings/judgments/art/11589-obowiazek-panstwa-czlonkowskiego-ue-polegajacy-na-wykony waniu-srodkow-tymczasowych-odnoszacych-sie-do-ksztaltu-ustroju-i-funkcjonowania-kon stytucyjnych-organow-wladzy-sadowniczej-tego-panstwa *>*, accessed 27 January 2024.

<sup>50</sup> Order of the Vice-President of the Court [2021] ECLI:EU:C:2021:834.

<sup>51</sup> With two dissenting votes, filed respectively by Judge Piotr Pszczółkowski and Judge Jarosław Wyrembak.

<sup>52</sup> Judgement of the Polish Constitutional Tribunal, ref no P 3/21 *<* https://trybunal.gov.pl/en/hea rings/judgments/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatuo-unii-europejskiej *>*, accessed 27 January 2024.

where the decisions of the CJEU are concerned, in particular, allowing domestic courts to bypass the national legal order, including its Constitution, so as to review the legality of the procedure for appointing a judge or to determine the defectiveness of the national process of appointing a judge and, as a result, to refuse to regard such a person as a judge, the legal provisions of the Treaties, as interpreted by the CJEU, are inconsistent with the Polish Constitution. In sum, Poland's constitutional standards regarding the organisation of its courts may not be replaced with the CJEU's interpretative guidelines and, if this is to be the case, such case-law is subject to assessment by the same Tribunal to evaluate its conformity with the Polish Constitution.