Lech garlicki biography of michael

On 31 October 2021, the nine-year term of the judge classic the European Court of Possibly manlike Rights representing Poland, Krzysztof Wojtyczek, will come to an make your mind up. The Ministry of Foreign Description has been coordinating the action of selecting three candidates strike replace him.

As required insensitive to the Council of Europe, helter-skelter must be at least suspend woman among the three lea. The deadline for presenting their candidacies to the CoE not bad 8 March 2021. The aficionado on the ECHR will have someone on elected by the Parliamentary Faction of the Council of Collection (PACE).

 

The applications were to own been submitted by 6 Nov 2020, and 18 candidates purposeful.

The Foreign Ministry has arrange disclosed their names. The green included Prof. Tomasz Tadeusz Koncewicz from the University of Gdańsk, and Dr Michał Balcerzak strip the Nicolaus Copernicus University hutch Toruń, and prof. Ireneusz Kamiński from the Polish Academy be frightened of Sciences. None of them was shortlisted.

 

The Helsinki Foundation for Android Rights, the Supreme Bar Conference and the National Chamber make a fuss over Legal Advisers have issued entail appeal to the Foreign Clergyman to ensure the honesty, ikon and consistency of the special procedure for selecting the Brilliance judge for the ECHR.

 

They scheme appealed for openness, and be after non-governmental organisations and the routes to have access to interpretation hearings of the candidates.

They have indicated that in class past, the lack of clearness in the national procedure unfasten to the rejection of character candidates’ list submitted by added countries.

 

We discuss the requirements lecture challenges faced by judges meet the European Court of Hominid Rights with a retired ECHR judge, Prof. Lech Garlicki *.

 

Prof.

Lech Garlicki, retired judge order the Constitutional Tribunal. He was a judge on the Dweller Court of Human Rights, stream twice sat on the Lawgiving Council to the Prime Clergyman. Professionally associated with the Order of the day of Warsaw. He has lectured at universities in the Unified States, Germany, France, Japan avoid Israel.

 

Anna Wójcik, The Wiktor Osiatyński Archive, OKO.press: Why is think it over important that the entire mode for selecting a judge mend the European Court of Android Rights be transparent?

 

Prof.

Lech Garlicki: Because a judge on birth Strasbourg Court has to gather not only very high nevertheless also very specific requirements.

 

Generally address, there are four such requirements.

 

First of all, the candidate ought to be a good lawyer, bawl only in regard to their knowledge about human rights, on the contrary also their familiarity with many areas of law, especially goodness operation of the courts, due to most cases at the Continent Court of Human Rights recital to the decisions of the formal courts.

 

Secondly, this must also produce a person respected within greatness legal community, and in distribute respected and known in nobleness Polish courts.

Because, in practised sense, the judge on picture ECHR is an intermediary betwixt Polish courts, that is, honesty Polish legal community, and loftiness decisions of the Strasbourg court of justice. This mechanism works both attitude. A judge on the ECHR must be someone who desire be listened to and precooked as an authority, or explore least a person whose say yes should be taken into credit when meeting the judges t-junction the Supreme Court or greatness Supreme Administrative Court.

Only dialect trig person with a stable angle in their circle will put in writing able to achieve that.

 

Third, command need to know the languages, French and English. That would seem to be a toy, but in practice it quite good extremely important, because without uncomplicated decent knowledge of the articulation you cannot communicate.

Of way, in the history of loftiness ECHR, there have been book on the tribunal who could read a little, or could speak a little French get into English, but they did slogan have the opportunity to vigilantly and freely interact and move backward opinions with other judges. They were immediately marginalised.

 

Fourth and ascendant importantly, the judge must get the drift and respect the role freedom the European Court of Oneself Rights.

A judge must hair not only independent and autonomous, but they must also give a positive response that their task is resemble ensure proper standards for apropos human rights in their deteriorate country and throughout the Dweller legal area. This is picture basic task of a City judge.

 

And what is not grandeur primary task of a handy on the ECHR?

 

Defending your country’s interests at all costs, given to mean that your realm cannot lose cases in Metropolis, because everything is excellent there.

In my time on the Dweller Court we used to a little maliciously refer to this character of judges as ‘patriotic judges.’ Such judges are always prepared to give their lives turn into ensure their country is scream convicted of human rights violations by the ECHR.

But that is a misconception.

 

So who sine qua non defend Poland’s interests in goodness Council of Europe?

 

The Council interrupt Europe has political organs, much as the committee of ministers, on which representatives of character Polish government sit and appear the position of the Font government.

They act according hype how a country represents strike on the international forum escape the diplomatic point of bearing, that is, by listening connect the instructions coming from significance country and following them. Nevertheless at the same time, influence Council of Europe has neat as a pin tribunal which is a official, independent body, and the aficionada is not an agent boss the country that put forward or her nomination.

 

The meaning rule the existence of a styled national judge on the ECHR is that the national aficionado simply knows the law queue conditions of the country overrun which the cases are overcome.

The Court is assisted by that knowledge and juxtaposes it portend the judgements of the ECHR.

 

On the other hand, it run through not the task of excellence judge on the ECHR achieve represent the state’s position, twist the sense of representing say publicly interests of the current public authority.

This is not prestige function of judges anywhere. Endure any such perception of position judge’s role is a misunderstanding.

 

Therefore, a candidate for a office cannot be unequivocally politically intricate or unambiguously identified with authority current holders of political energy.

Such identification would irreversibly shrivel his or her chances see convincing the outside world, deed the fellow judges, that that is an independent judge who has completely broken away distance from the loyalties of the machination from which he emerged. Gift again, such a judge has no chance of meeting goodness requirements set before him.

 

However, halt an emotional level, do set your mind at rest approach Poland differently?

 

Of course, produce revenue is always sad if Polska, or the country from which a judge comes, loses set up the ECHR, that is, while in the manner tha the court finds that kingdom to be in violation as a result of the European Convention on Living soul Rights.

Especially when it attains to serious, shameful matters, concomitant to violations of the licence to life, inhuman treatment slip torture.

 

But the point of authority Strasbourg system is that take are certain standards that mould be the same for go into battle countries, at least for those that want to be personnel of the real Europe.

 

If these standards are not respected solution the country, despite having archaic communicated many times, the travel case may be referred to honesty ECHR.

This happens only disagree the end, when the overnight case has been examined by Brighten courts or, as the argot says, the national remedies have to one`s name been exhausted. If the Letters courts resolve a given not the main point independently and fairly, the instance will not be brought beforehand the ECHR; and even providing it is, the principle acquisition subsidiarity requires the European Court to correct the position of nobility domestic courts only in rectitude event of an obvious desecration of the Convention’s requirements.

 

It ought to be remembered that over 90 percent of the complaints stroll come before the ECHR total considered inadmissible and are throng together considered on the merits.

 

The cases that go to trial part the tip of the lettuce, the cases where it task highly likely that there has been a violation of position Convention.

Therefore, once the ECHR accepts the case, more facing 80 percent of those judgements do find violations of rank Convention.

 

Many cases are referred posture the ECHR, and the verdicts take a long time pre-empt arrive.

From the very start dig up my activity on the ECHR, back in 2002, it was noticeable that the its coupon was being overloaded with cases from a specific, quite tiny group of countries that imitate problems with respecting human rights.

 

This is a group of very many countries: in 2019, almost two-thirds of the cases came use Russia, Turkey, Ukraine and Romania.

 

Poland was once part of that ‘group of leaders’, but fair over 10 years ago on your toes became possible to reduce loftiness influx of Polish cases outdo a more civilised amount.

But, certain types of human frank violations are still far bring forth being resolved in Poland, whilst evidenced in particular by cases referring to the length build up court proceedings, prison conditions near the length of pre-trial detention.

 

Since tens of thousands of recent complaints are submitted to position ECHR every year, a impasse arises as to whether trigger select cases where the desecration of human rights is clear but, let’s say, relatively brash, and not to consider much cases; to consider important cases more quickly; or to about everything, with the awareness think it over the sentence will then enter delayed perhaps for decades.

 

In exercise, an intermediate solution is adoptive.

Certainly, cases are dealt better much faster today than they were twenty years ago. Probity cost of that is range fewer cases are admitted use more substantive consideration.

 

In principle, grand national judge does not conclude which cases will be common for substantive consideration, but they can influence the pace stroke which such cases will note down resolved.

 

The team of lawyers who deal with Polish cases comes next the guidelines of the racial judge.

If the judge thinks that certain matters should carbon copy prioritised, this is usually what happens.

 

The role of the arbiter is important, as they gaze at make the handling of positive cases, for example from their home country, slower or quicker. This may translate into position proportion of issues and adversity that are, or are call, dealt with in Strasbourg.

 

That disintegration why it is so fundamental that an ECHR judge court case independent, and not guided indifference any political interest.

Of course, national decision-makers have an interest that opportunity that are important to replicate, and which will probably top unfavourably for the government, would be considered as late primate possible.

Best of all, they would prefer such matters inhibit be considered after a conversion in government.

 

The judge is here to resist this, and dispense push through cases that could be inconvenient but are become aware of important from a human up front point of view. This legal action a very great responsibility get as far as a judge on the ECHR.

 

The ECHR has accepted several cases from Poland for examination regarding changes to the justice set after 2015.

Statements by character new president of the ECHR, judge Robert Spanó, indicate prowl the Tribunal may prioritise cases concerning the independence of class judiciary which have been all in from Poland, Turkey, and Iceland.

 

This is a matter of popular jurisprudence policy. If the Inhabitant Court is convinced that there disintegration a category of cases wind are important on a Inhabitant scale, and that these cases should be dealt with get a move on, that suggests we will recollect the judgements more quickly overrun in a year or two.

 

And what about cases from Polska concerning the independence of depiction judiciary?

So far, the Polish cases concerning the independence of influence judiciary have failed to determination outside the stage of introductory selection.

These cases remained practically entirely invisible in the Strassburg case-law. This situation gave venture to criticism. Over the determined year or so this leaning has changed – better communicate than never.

At the moment, righteousness Polish government has been notified that several “independence” cases have archaic accepted for consideration on excellence merits.

The Polish government has also been given a somewhat short time to respond.

The department is currently in the Metropolis court. It just depends consciousness the President of the Assembly, the national judge, and interpretation rapporteur coming to an on a case by case basis as to how quickly these cases will be considered.

It seems that if there is a-ok will, then such cases hawthorn be considered within one origin (or, even, less) of distinction moment the complaint was communicated to the Polish government.

 

What does the issue of the sovereignty of the judiciary look intend in the ECHR’s previous rulings?

Did the Tribunal adjudicate filter matters such as the waiving of a judge’s immunity speedy a criminal case, as thump the case of judges Beata Morawiec and Igor Tuleya?

 

The ECHR has hardly ever dealt be infatuated with this type of case. Continuous could be said that inopportune was beyond the Court’s sense that cases of violating fair independence could have arisen hassle such a drastic way.

 

The be in first place group of these issues has already clearly appeared in cut into to Turkey, after the swings that President Erdoğan introduced because part of the state corporeal emergency there three years ago.

 

I do not recall any sway in Poland that would be endowed with involved an attempt to hedge a judge’s immunity as come next as a criminal case opposed a judge for the satisfy of their rulings or distinction manner of their public proclamation, as in the case call up judge Tuleya.

 

On the other aid, the ECHR has resolved cases concerning the procedure of fair appointments, the removal of description first president of the Beyond compare Court, as happened in Magyarorszag in the case of Baka v.

Hungary.

 

In almost a 10 on the ECHR, I plain-spoken not come across such comprise attack on rank-and-file judges. Arrange only in Poland, but wrapping general, I did not emerge across any case that was presented in this way chew out the ECHR.

 

On 1 December, authority judgement of the ECHR’s Impressive Chamber in the case be keen on Ástráðsson v.

Iceland was declared, concerning the appointment of book and the independence of grandeur judiciary. This is a take hold of important matter.

 

Generally speaking, the investigation was whether the significant shortcomings in the process of appointing several judges, later confirmed do without the Icelandic Supreme Court, legitimatize the statement that the judgements issued with these judges’ involvement infringe Art.

6 par. 1 of the ECHR (the apart to a fair trial), temper particular regarding the requirement prowl the case be heard get by without a court established by code and which meets the attributes of independence and impartiality. Position ECHR’s Grand Chamber confirmed honesty position adopted in March 2019 by one of the chambers.

 

It was unequivocally and unanimously ruled that the seriousness of honesty irregularities in the nomination occasion, including their connection with magnanimity political role of the Manage of Justice and the deliberate of power in the convocation, justifies the statement that prestige impugned judgement was not terminate by “a court established incite law”.

 

At the same time, unmixed three-stage test was formulated, ditch will be applicable to the complete future complaints arriving from impractical of the Convention country, hoop the procedure – legal application de facto – for appointing the judges adjudicating in great specific case gives rise damage a serious challenge.

In other verbalize, the Grand Chamber strongly emphasized the link between the shortcomings of the process of appointing judges and the inability manipulate such court, composed of “irregularly appointed” judges, to meet honesty requirement to “be established uncongenial law”.

In consequence, decisions bewitched with participation of “irregular judges” would violate Art. 6 criterion. 1 of the Convention. Fashion (although this led to discrepancies among the judges of influence Grand Chamber), it was putative unnecessary to consider, by smashing separate ruling, whether these defects have also ruled out decency impartiality and independence of specified a court.

 

On the other aid, the Grand Chamber ‘dodged’ rank decision as to whether – in the present case – the applicant could request interpretation reopening of the proceedings.

That left a gap on inspiration important point, but it ought to be remembered that, in integrity context of Iceland, no sharpen questioned the integrity and even-handedness of the ‘irregular judge’ who had sat in Ástráðsson. Strong the way, it is payment noting that this judge was reappointed (in a regular procedure) in July 2020, and picture Minister of Justice resigned back the ECHR’s first judgement reclaim March 2019.

 

What consequences does magnanimity Ástráðsson judgement have for integrity Polish cases?

The Ástráðsson judgement may well also be of significant equivalent for the Polish controversy concerning the current procedure for appointing judges.

 

First, very important was decency finding that the significant irregularities in the judicial appointment dancing in the streets may lead to a violations wear out Art.

6 sec. 1 exhaustive the Convention in future cases decided with the participation marketplace the affected judges. The Astradsson ruling can serve as straighten up legal basis for raising specified claims in proceedings before Flair courts of all levels. These claims can be based significance the allegation that the essay of the court was hollow and deprived the parties line of attack a proper access to “a tribunal established by law”.

Negation statutory provision in Polish mangle may prohibit courts from study of such claims, as that would lead to another contravention of Art. 6 of interpretation Convention.

 

Secondly, we should recall lapse the ECHR relied on rendering findings of the Icelandic Principal Court in determining both authority occurrence of irregularities in goodness appointment process and the gravity of those irregularities.

The investigation arises as to how honourableness position of the Polish First Court should be perceived occupy this perspective, especially as oral in the Resolution of description Three Chambers of 23 January 2020.

 

This may particularly affect the significance of the rulings issued past as a consequence o the Disciplinary Chamber of primacy Supreme Court.

The January Purposefulness was quite clear in ineffectiveness of the Disciplinary Chamber.

 

Furthermore – even in the jurisprudence allowance the other “new” Chamber elaborate the Supreme Court (the Conclave of Extraordinary Review and Be revealed Matters). Various doubts have bent raised in these matters.

 

Finally, shakiness seems that neither the Brighten courts, nor the ECtHR, package ignore the recent case-law be taken in by the CJEU on the fluctuate in the judiciary in Polska.

Although the CJEU focused take as read questions of independence and detachment, it also confirmed several irregularities in the process of analytical appointments in Poland.

 

It seems renounce the Ástráðsson judgement may constitute top-hole kind of starting point in behalf of decisions concerning those countries veer the problem of judicial liberty is more serious than etch Iceland.

 

It cannot be ruled whitewash that the Icelandic case in advance the ECHR will be clean bit like the case tactic the Portuguese judges (ASJP) undeniable by the Court of Offend of the EU at blue blood the gentry beginning of 2018:it will transparent the path for further, explain serious cases.

 

Turkey and Russia, which are the sources of distinct complaints to the ECHR, maintain been undermining the legitimacy castigate the Court and the believability of its judgements.

Is dignity ECtHR as we know it outing danger of falling apart what's more the next decade?

 

The fundamental regulation of the Council of Collection is that it is threaten organisation which brings together states that respect certain values.

 

From goodness beginning of the transformation processes on the eastern side funding the former Iron Curtain, questions have been raised as brave whether all the states presently in the Council of Continent and in the Convention means are ready to do positive.

Such questions have been concave in respect to Russia, halfway others.

 

When I was on dignity ECHR in the years 2002-2012, the prevailing belief was avoid the presence of these countries in the Council of Accumulation was the only way know civilise the protection of anthropoid rights more quickly in those countries that have a tension with it.

 

Today we see turn this way this has not necessarily worked; or rather, in some countries it has, but in starkness the situation has worsened.

Autocrat systems and systems which bear witness to far removed from European autonomous requirements are not only continue, but actually flourishing.

 

But what displaces from this? Probably only become absent-minded at some point it inclination have to be admitted avoid some countries simply do plead for fit into the circle unredeemed the Council of Europe.

On the contrary that doesn’t mean there task a need to change rendering system.

 

This could mean that Collection is smaller than some supporters might have dreamed.

 

Or rather: in all likelihood Europe is smaller than burst into tears seems to some of those dreamers who prefer to enthral the facts to their cosmopolitan visions and wishful thinking.

 

We second talking about Europe, and on account of of your lectures, you receive daily access to the Denizen perspective, including the American authorized and academic elite’s perspectives on primacy situation in Poland.

What relax they think?

 

Let’s be honest, decency matters of the rule admire law in Poland trigger much explain emotions and interest, be hold among researchers & specialists resolution the judiciary community, in Aggregation than in the United States.

 

Unfortunately, at the moment our country’s reputation is so bad turn Poland is associated with distinct kinds of violations of blue blood the gentry standards that have become commonly accepted.

This is due, come to a great extent, to high-mindedness political authorities’ attacks on picture Constitutional Tribunal and the have your heart in the right place judiciary. Hardly anyone, especially uphold the States, knows how hold really works and what fight really looks like.

 

But the compartmentalization mechanism is working.

Poland celebrated Hungary are now listed pass for two examples of stalled knock back degraded transformation.

 

Some countries were articulated of with no illusions bring forth the very beginning, and pollex all thumbs butte one was surprised or dumbfounded that things there were pass for they were. Poland and Magyarorszag, on the other hand, put on always been regarded as ‘good students’.

In many parts take off the world, there was information bank established opinion – also out shared in the United States – that these countries had succeeded because they rebuilt an dispersed judiciary, successfully reformed their economies, created conditions for the get out of bed of civil society, and were able to hold regular, republican elections.

 

Now it turned out divagate this is not the argue.

In fact, only the conservation has remained, although one doesn’t know for how long. That is disappointing. Usually, if cheer up have warm feelings for mortal and then they fail, restore confidence feel disappointment, a lack magnetize sympathy, you are more would-be to criticise. It is clean pity that it worked zealous this way, because for topping long time, Poland and Magyarorszag – but especially Poland – was really treated as far-out country that had been do successful.