The right of access to a court (for judges)

The right of access to a court has been a particularly active strand of case law in the last few years. This seems to be especially the case for the right of access for domestic judges. For them, that right is one of the few Convention rights that they can rely on – in the absence of more direct options such as a subjective right to invoke their judicial independence – to challenge measures that affect their status or career. The right of access to a court has thus become an increasingly relevant right in rule-of-law related cases. This not only becomes clear from the Grzęda case, but also from other recent cases such as Żurek,Footnote ²¹ Broda and Bojara,^{Footnote 22} Gumenyuk,^{Footnote 23} Bilgen,^{Footnote 24} Eminağaoğlu,^{Footnote 25} Baka ^{Footnote 26} and to a certain extent Loquifer.Footnote ²⁷

Yet, this recent case law is not particularly easy to disentangle and is quite dense overall.Footnote ²⁸ It would thus have been helpful for the Grand Chamber to step in and authoritatively bring some clarity to the matter. Yet, the Grzęda judgment did not do that. As pointed out by judge Lemmens in his concurring opinion, not only did the Court fail to seize the opportunity brought by the case, the majority opinion even contained some confusing applications of the established principles.Footnote ²⁹

As was mentioned above, an application regarding the right of access to a court can essentially be divided into three distinct steps: (1) is there a right? (2) if so, is this right of a civil nature (the Eskelinen test)? and (3) if it is, has Article 6(1) ECHR actually been violated? For each of those three steps the Grand Chamber has made some odd choices which seem to disregard – or even implicitly run counter to – the principles that were established in recent case law and, all things considered, fails to provide a convincing reasoning.

As to the question whether Mr Grzęda could rely on a right to serve the full four-year term of his mandate, the Court’s starting point was that Article 187(3) of the Polish Constitution provided for and therefore protected the four-year term of elected members of the National Council of the Judiciary.Footnote ³⁰ A few paragraphs further on, the Court reiterated that, having regard to that provision of the Constitution, domestic law provided elected judges with an arguable right to serve their full term of office.Footnote ³¹ One could expect that those considerations sufficed to conclude that Mr Grzęda could rely on a right, at least an arguable one. In previous cases, like Broda and Bojara, Loquifer and Baka, the existence of such a provision in domestic law, establishing a certain mandate for a predetermined term, indeed sufficed to find an arguable right, clear and simple.Footnote ³²

However, rather than simply stop there and consider this matter solved, the Court then spent several pages dismissing all the counterarguments by the Polish government. In doing so, it ventured into particularly contentious regions of the interpretation of the Polish Constitution, including the case law of the Constitutional Tribunal. Because of this, it was also forced to take a side on the diverging interpretations between the Supreme Court and Constitutional Tribunal of Poland, which in turn made it raise doubts about the legality of the Constitutional Tribunal in its current composition. As also pointed out by judge Lemmens, all of this goes much further than needed.Footnote ³³

It is not immediately apparent why the Court found it necessary to discuss the matter so exhaustively. One potential reason could be that judgment K 5/17 of the Constitutional Tribunal made clear that Mr Grzęda was appointed for a term of office in a way which was not originally intended by the Constitution. Understood that way, the interpretation by the Tribunal would essentially invalidate Mr Grzęda’s right and as such the Court had to find a way around it.Footnote ³⁴ Yet if that is indeed the reasoning of the Court, it does not immediately seem to be very well supported by the rest of the judgment. At three separate points in its reasoning, it referred to the text of Article 187(3) of the Polish Constitution in order to point out that it provided at least an arguable right to complete the four-year mandate.Footnote ³⁵ Nowhere does it link the ‘arguability’ of that right to the validity of the individualised system of appointment that was prescribed in Polish legislation and which was found to be unconstitutional by the Constitutional Tribunal in its 2017 judgment. On the contrary, at the end of its reasoning, the majority opinion indicated that the ‘arguability’ of Mr Grzęda’s right to finish the four-year mandate, starting at his 2016 election, could not be affected by subsequent developments.Footnote ³⁶ Thus, if one reads the judgment, it would seem that the content of Article 187(3) of the Polish Constitution sufficed on its own to provide Mr Grzęda with an arguable right, similar to those in earlier judgments. While the nature and scope of the right guaranteed by Article 187(3) of the Polish Constitution may certainly be the topic of debate,Footnote ³⁷ it is strange that the Court spent so much time refuting all other substantive arguments of the Polish government concerning the existence rather than mere ‘arguability’ of the subjective right of judicial members of a judicial council to a four-year term of office.

Turning then, to the question of whether the right in question was of a civil nature, the Grand Chamber found it necessary to further develop the first Eskelinen criterion, since it was not entirely apt in all situations. It held that the first criterion may also be fulfilled when the exclusion is of an implicit, rather than an explicit, nature, provided that it stems from a systemic interpretation of the applicable legal framework.Footnote ³⁸ One should really not underestimate the gravity of that statement, as it nuances – arguably even overturns – many years of established case law. Ever since the judgment of Vilho Eskelinen itself, the Court has been very clear on the fact that national law must have expressly excluded access to a court for the post or category of staff in question.Footnote ³⁹ There are many cases to be found in which the Court concluded that the first Eskelinen criterion had not been met because no provision in domestic law ruled out access to a court, at least not expressly.Footnote ⁴⁰ In fact, it has admitted itself that in the majority of its cases, it did not find the Eskelinen test fulfilled since there was no express exclusion.Footnote ⁴¹

The Grand Chamber’s new approach in Grzęda thus marks an important lowering of the threshold for states to try to refute the applicability of Article 6(1) ECHR in disputes concerning civil servants. In itself this is not necessarily a bad evolution as it arguably better respects the spirit of the domestic legal framework. It is not uncommon that domestic legislation does not intend to provide for judicial review for certain disputes, without, however, explicitly excluding such an option. By also allowing the exclusion to follow implicitly from the entirety of the legislative framework, the Court now creates an opening for such situations.

Yet, in a very peculiar turn of events, after establishing this new understanding of the first Eskelinen criterion, the Grand Chamber did not pursue the matter any further, since it found that, in any case, the second criterion was not met. Nevertheless, one may have expected that the question whether the first condition of the Eskelinen test had been satisfied in Mr Grzęda’s case was exactly one of the main reasons why this case was brought to be decided by the Grand Chamber, so it could clarify and unify the methodology for applying the first condition of the Eskelinen test in future cases concerning the rights of a person who is employed in a ‘public service’. By shying away from this issue, the Grand Chamber failed to provide any guidance on how to apply this understanding in concrete cases. As pointed out by judge Lemmens, it equally left open the important question about the temporal aspects of this issue, namely whether account should be taken of the remedies that were available before the 2017 amending legislation or those available after. As he mentioned, the former would indeed seem like the most convincing option. The applicant would be left with little protection if the legislative amendment that allegedly interfered with the applicant’s right could at the same time expressly or implicitly refuse access to a court and as such lead to the inapplicability of Article 6(1) ECHR. This also seems to be the point of view taken by the Court in the later judgment of Gloveli.Footnote ⁴² Yet, by evading this matter, the Grand Chamber neglected to give any guidance on those important and difficult questions, leaving the various sections of the Court that will deal with subsequent cases on the matter, as well as the national courts, to chart their own course.

As mentioned above, the second Eskelinen criterion requires that the exclusion of access to a court be justified on objective grounds in the state’s interests. According to the prevailing case law, two separate possibilities exist here. Either the Contracting Party shows that the subject matter of the dispute at issue is related to the exercise of state power, or that it has called into question the special bond of trust and loyalty between the civil servant and the state. As far as the first option is concerned, there is little to find in the judgment, or in the European Court of Human Rights’ case law in general for that matter. There are not many judgments in which the Court has clearly clarified what must be understood as the exercise of state power. While in older case law the Court seemed to still accept that disputes concerning judges could be seen as disputes about the exercise of state power,Footnote ⁴³ more recent jurisprudence seems to grant less leeway. The Court now mostly reiterates – also in cases concerning judges –Footnote ⁴⁴ that the mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. This was also the short – perhaps even curt – response from the Grand Chamber in the Grzęda judgment.Footnote ⁴⁵ Since the Polish government did not invoke the second option – the bond of trust and loyalty – one could expect that the matter was handled and that the second criterion had not been met. However, the Court then spent over 30 paragraphs on the rule of law, the importance of judicial independence, the existing international standards in that regard, the legislative amendments in Poland, and the judgments of the Polish Supreme Court and Constitutional Tribunal, only to then – rather abruptly – come to the conclusion that the second criterion had not been met. When one reads the judgment, it is not very clear why all those considerations were required to conclude that the exclusion of access to a court was not justified by reasons in the state’s interests, or that they even necessarily led to that conclusion. As pointed out by judge Lemmens, the reasoning here took the Court far away from the mere examination of whether the right invoked by Grzęda was a civil one.Footnote ⁴⁶

It would seem that those considerations could easily have been avoided if the Court had relied more directly on its recent case law. In several recent judgments, the Court has discussed the issue of the bond of trust and loyalty between judges and the state. In those cases, it held that the employment relationship of judges with the state must be understood in the light of the specific guarantees essential for judicial independence.Footnote ⁴⁷ Rather than loyalty to the holders of power, they are beholden only to democracy and the rule of law. In those other cases, those considerations sufficed for the Court to conclude that the exclusion of judicial review of disputes about the career and status of judges had not been justified by objective reasons in the state’s interests.Footnote ⁴⁸ In Grzęda, the Court expanded this reasoning from disputes about the career and status of judges in their adjudicatory role to their other roles as well. It held that, given the importance of judicial councils, the same considerations should apply as regards the tenure of judges who are elected to serve on such councils because of their status and in view of the need to safeguard judicial independence. It continued by saying that judicial independence should be understood in an inclusive manner and apply not only to a judge in his or her adjudicating role, but also to other official functions that a judge may be called upon to perform that are closely connected with the judicial system.Footnote ⁴⁹ That paragraph can actually be seen as the key consideration in the entire judgment. By making a bridge between the adjudicating role and other official functions of a judge, the abovementioned case law on the bond of trust and loyalty between judges and the state would seem to apply equally to Grzęda’s mandate in the National Council of the Judiciary, leading to the conclusion that his removal could not be seen as serving an objective ground in the state’s interest.Footnote ⁵⁰

Turning then, finally, to the merits of the case, the same sort of remark can essentially be made. In most cases concerning the right of access to a court, the mere fact that domestic law provided no possibility to obtain a judicial review sufficed for the Court to find that the essence of that right had been violated.Footnote ⁵¹ Again, however, the Grand Chamber devoted several paragraphs to the principle of judicial independence and the general context of the Polish judicial reforms. At the same time, it did not mention anything on the seemingly inevitable conclusion to be drawn from the finding of a violation, namely that Grzęda should then have had the right to challenge the 2017 legislative amendment, something that would arguably contradict decades of clear case law. This point was also raised by judge Wojtyczek in his dissenting opinion and we will turn to it later in this case note.

All things considered, the Grzęda judgment is unnecessarily verbose, at times confusing and at some points simply unconvincing. Many of the points that the Court struggled with could have been avoided by relying on principles that had already been established in recent case law. The right of access to a court is not an easy strand of case law and the Eskelinen test almost inherently requires the Court to delve into the domestic legal framework and national jurisprudence. It is no wonder that that might lead to very technical discussions on what national law does and does not say and it is understandably not easy for the Court to do this. Yet, that is exactly why it is so striking that the Court chose not to take a road that would have avoided those contentious issues. As a matter of fact, the Żurek judgment, which came out a couple of months later, can be seen as a case in point that the Grzęda case could be dealt with in a more concise and convincing manner. That case was essentially a carbon copy of the Grzęda case, in which another judicial member of the National Council of the Judiciary complained about the loss ex lege of his mandate in the council.Footnote ⁵² Unsurprisingly, the Court’s first section faithfully followed the principles that the Grand Chamber had set out a few months earlier in Grzęda, but it applied them in a much more succinct manner. For each of the three steps mentioned above, the Chamber was considerably more brief than the Grand Chamber and threw much of the unnecessary ballast in its reasoning overboard. Generally speaking, it is to be hoped that Grzęda does not reflect how the Court will deal with such applications in the future, but will be remembered as an overambitious Court, trying to give a clear message regarding the Polish judicial reforms, but choosing a bad case for doing so.

The judgment’s implications for the principle of judicial independence

While the Grzęda case only concerns a complaint about the right of access to a court, the principle of judicial independence is omnipresent in the judgment.Footnote ⁵³ The Grand Chamber spends ample time reminding everyone of the importance of that principle, not only for individual judges, but also for judicial councils. As such, the Grzęda judgment brings some important developments to the case law on judicial independence. In what follows, this case note will point to three such developments.

The first – and perhaps most significant – addition to the jurisprudence is the expansion of the principle of judicial independence from the adjudicatory role of judges to other official functions that they may be called upon to perform that are closely connected to the judicial system.Footnote ⁵⁴ The Court argued that, given the important role played by judicial councils, the same considerations should apply as regards the tenure of judges, who are elected to serve on those councils because of their status and in view of the need to safeguard judicial independence. It seems that the Court found inspiration for that point of view in the opinions of the Consultative Council of European Judges.Footnote ⁵⁵ Yet, this ‘inclusive’ vision of judicial independence goes further than the membership of a judicial council. There is a wide variety in functions that judges may be tasked to perform outside of their traditional adjudicatory role. This can range from the membership of bodies of judicial governance, such as judicial councils, appointment committees, or disciplinary bodies, over discussions with the political branches about the budget of the judiciary, to commenting on draft legislation that may affect the judiciary – which was the case in Baka and Żurek.

In Grzęda, the Grand Chamber gave a welcome reminder that the duty to respect judicial independence does not stop at the core adjudicatory task of judges, but also has a role to play in those more ancillary aspects of the judicial function. Yet, in this regard it is noticeable that the Court takes pains to limit its reasoning to the judicial members of the judicial council and one might wonder whether the same would hold true for non-judicial members. And if not, how that distinction can be justified? Does the Court then not introduce two separate classes of council members? The even more intriguing question, already highlighted above, is what ‘other official functions’ of a judge, beyond their membership in a judicial council, require the same degree of protection as the adjudicative role. The position of a court president? Anything else? The Grand Chamber provides no guidance on these vexing issues.

This brings us to a second point, namely the independence of judicial councils. The Court spent many paragraphs on the importance of safeguarding those bodies from encroachment by the legislative and executive powers, again with reference to international soft law instruments. It also repeated that it is recommended that no less than half of the members of such councils should be judges chosen by their peers, though without reference to any of its earlier case law in which it had expressed such a view.Footnote ⁵⁶ Importantly, the Court then made clear that while the Convention itself does not require member states to establish a judicial council, when they do create such a body, the Contracting Parties are under an obligation to ensure its independence from the political branches of government. In what can only be seen as a thinly veiled dig at the Polish government, the Court put it even more sharply and said that while states are free to adopt a judicial council model as a means of ensuring the independence of judges, what they cannot do is instrumentalise that body to undermine their independence.Footnote ⁵⁷

It is certainly not the first time that the Court has made mention of standards of independence for judicial councils. Nevertheless, in the past it did so virtually exclusively in cases where such councils have disciplinary powers and where a domestic judge, as the applicant, complains about a violation of his or her right to a fair trial by an independent and impartial court or tribunal during the disciplinary proceedings.Footnote ⁵⁸ In Grzęda, however, the Court discusses the independence of judicial councils in a much more abstract way, stressing the importance of such bodies for judicial governance and the independence of the judiciary in its entirety. It does so by pointing out the key role of the National Council of the Judiciary for the appointment and promotion of judges and making the connection between the integrity of the appointment process and the requirement of judicial independence.Footnote ⁵⁹

The third development in the case law relates to the idea of subsidiarity. At the very end of its assessment of the second Eskelinen criterion, the Court considered it appropriate to emphasise the importance of the principles of subsidiarity and shared responsibility, especially now that Protocol 15 has officially entered into effect. The principle of subsidiarity imposes a shared responsibility between the Contracting States and the Court, with national authorities and courts having to interpret and apply domestic law in a manner that gives full effect to the Convention.Footnote ⁶⁰ It then stressed that the Convention system cannot function properly without independent judges and that the Contracting Parties thus have the crucial task of ensuring the independence of their judiciary.Footnote ⁶¹

While this connection between the idea of subsidiarity and the importance of safeguarding the independence of the domestic judges has already been made in legal literature,Footnote ⁶² it is a novelty in the Court’s case law. It is difficult not to see the influence of current President Spano shine through here. In a well-known 2018 article, he argued that the ideas of subsidiarity and process-based review can only be granted if the national decision-makers are structurally capable of fulfilling that task and if the foundations of the domestic legal order are intact. As such, states that do not respect the rule of law and do not ensure the impartiality and independence of their judicial systems, cannot expect to be afforded deference under process-based review.Footnote ⁶³ In a later article he wrote that it is self-evident that the principle of subsidiarity within the Convention system is devoid of any meaningful content if the member states do not secure in law and practice the existence of independent, impartial and effective courts so as to safeguard fundamental rights.Footnote ⁶⁴ With the judgment of Grzęda, those important ideas have now obtained some footing in the case law of the Court.

When one takes a look at the three aspects of the case that have just been pointed out, it becomes apparent that they all point in a similar direction. They move away from the right of the individual to an independent and impartial judge and look at judicial independence in a more structural way, permeating the domestic judiciary in its entirety. While it is certainly too soon to say that Grzęda has created an enforceable general duty on states under the Convention to guarantee the independence of the judiciary on an abstract, structural level, and a subjective right for judges to their independence, it may be an indication that the Court is willing to move more in that direction. If that is indeed the case, that would undeniably be a major evolution in the Court’s case law. As the case law stands now, the right to an independent court is there only for the parties to a dispute and cannot be relied on by judges themselves to try to enforce their own independence. That is the reason why domestic judges, such as Grzęda, must rely on other Convention rights to indirectly safeguard their independence, such as the right to private life,Footnote ⁶⁵ the freedom of expression,Footnote ⁶⁶ and more recently also the right of access to a court.Footnote ⁶⁷ If the Court were to read such a structural obligation for the respect of judicial independence in the Convention, it would offer domestic judges a more direct route via which to protect their independence, thereby greatly increasing the effectiveness of the Court in rule of law cases.Footnote ⁶⁸ Arguably, the Convention already offers a sufficient legal basis for such a structural understanding of judicial independence. When one combines Articles 1, 13 and 35 of the Convention, it is clear that all Contracting Parties are required to provide for effective domestic remedies on their territory for Convention-related complaints. The Court has furthermore repeatedly clarified that a remedy is only effective if it is independent.Footnote ⁶⁹ While Article 13 ECHR does not require a remedy to be of a judicial nature,Footnote ⁷⁰ in practice it is the judiciary that will provide the required remedy under that provision in the overwhelming majority of the cases. Taken together, those provisions can be understood as containing an obligation for all Contracting Parties to guarantee a structurally independent judiciary, in order to provide the applicants with the required effective remedies.

The Strasbourg Court and judicial self-governance

As stressed above, while the Court has addressed judicial councils in its previous case law, in Grzęda it went much further and resorted to several general remarks on their composition and role that may have far-reaching repercussions for domestic judicial governance well beyond Poland.Footnote ⁷¹

More specifically, the Grand Chamber’s understanding of judicial councils rests on five arguments. First, the very raison d’être of judicial councils and their main task is safeguarding judicial independence.Footnote ⁷² Second, judicial councils must be protected against encroachment by the legislative and executive powers.Footnote ⁷³ Third, no less than half of the members of such councils should be judges.Footnote ⁷⁴ Fourth, these judicial members of judicial councils should be chosen by their peers.Footnote ⁷⁵ And finally, judicial members of judicial councils should enjoy the same protection as in their judicial function.Footnote ⁷⁶

In fact, all five of those arguments are problematic. This is even more troubling since – as was pointed out above – only the last argument was necessary to decide the Grzęda case. The lengthy discussion of the first four arguments was unnecessary obiter dictum. To make things worse, the majority makes these far-reaching conclusions on judicial governance when it discusses whether the right invoked by the applicant is one of a ‘civil’ nature, rather than in the merits of the complaint.Footnote ⁷⁷

Let us look at these arguments in reverse order. The fifth claim that, given the important role played by judicial councils, the same considerations should apply as regards the tenure of judges, who are elected to serve on those councils because of their status and in view of the need to safeguard judicial independence, is controversial. While considerations of judicial independence are pertinent regarding the non-adjudicatory roles of judges as well, that does not automatically mean that judges should enjoy the same level of judicial independence for such extrajudicial activities, even if they concern administration of justice in the broad sense. That is also reflected in many jurisdictions that allow for revocation of appointed or elected members of the judicial council by the appointing or electing body.Footnote ⁷⁸ In Poland itself, it was not only the relevant assembly of judges that could prematurely terminate the term of office of a judicial member of the National Council of the Judiciary (albeit only in the pre-2011 era);Footnote ⁷⁹ the President of the Republic could also at any time dismiss the individual he appointed to the Council.Footnote ⁸⁰ The recent 2020 constitutional amendment in Slovakia also stipulated that all nominating bodies, from all three branches of government, may recall ‘their’ members of the Slovak judicial council.Footnote ⁸¹ The fact that the European Court of Human Rights decided not to address this issue, despite it being crucial for an accurate understanding of the role of judicial councils, is a major flaw in the Grand Chamber judgment,Footnote ⁸² because if a term of a judicial council member cannot be shortened by a statute after debate in the Parliament, it is difficult to argue that it can be revoked by her nominator immediately.

Moreover, since the Court took pains to limit its reasoning to the judicial members, it created a dangerous dichotomy between judicial and non-judicial members of the judicial council. If the role of the judicial council as a whole is to protect judicial independence, then all members of the judicial council should enjoy the same security of tenure, perhaps with the exception of the ex lege members of the judicial council whose membership in a judicial council is derived from other functions.Footnote ⁸³ This distinction between judicial and non-judicial members is not persuasive and actually even runs counter to the position of the Consultative Council of European JudgesFootnote ⁸⁴ and de facto also the Court’s own position in Loquifer.Footnote ⁸⁵

The third and fourth arguments are interrelated. In contrast to what the European Court of Human Rights claims, relying on various supranational standards,Footnote ⁸⁶ there has never been consensus that no less than half of the members of judicial councils should be judges.Footnote ⁸⁷ Several important examples in Europe, such as the French Conseil Supérieur de la Magistrature and the Portuguese Conselho Superior da Magistratura only have a minority of judges. There is actually an emerging consensus that judicial councils with a majority of judges yielded problematic results in many jurisdictions in Central and Eastern Europe, as such councils are prone to judicial corporativism.Footnote ⁸⁸ The concept of judicial councils composed of a majority of judges thus has been increasingly questioned not only by governments with potentially sinister intentions, but also in good faith by scholarsFootnote ⁸⁹ and civil society in several transitional democracies.Footnote ⁹⁰ Even the Venice Commission started to acknowledge that public confidence in the justice system would suffer if a council for the judiciary is perceived to act out of self-interest, self-protection and cronyism.Footnote ⁹¹ The fourth argument, that judicial members of judicial councils should be chosen by their peers, also lacks universal support in Europe. For instance, in Spain, judicial members of the Consejo General del Poder Judicial are elected by the Parliament. While these two requirements can still be read as mere ‘recommendations’ and thus not becoming an ECHR obligation imposed on all contracting parties, the majority clearly gives it a significant normative weight in the operative part of the judgment.Footnote ⁹²

This brings to the fore the first and second arguments by the Court. It is understandable that the European Court of Human Rights, in responding to the Polish judicial reform, emphasises that judicial councils must be protected from being interfered with by the legislature and the executive. However, the Court will sooner or later realise that judicial councils should be independent not only from the political branches of State power, but also from the judiciary. The Polish scenario is only one of the many possible ways to rig a judicial council. Experiences from other Contracting Parties tell us that a judicial council can also be captured from within by problematic judges,Footnote ⁹³ or deeply entangled in judicial corruption and nepotism.Footnote ⁹⁴ The European Court of Human Rights itself has a long line of case law concerning internal judicial independence,Footnote ⁹⁵ which it should have referred to in Grzęda to emphasise explicitly that judicial councils must be protected against interference emanating from all three branches, including the judiciary.

Finally, while many judicial councils have been created to protect judicial independence, it is not their only aim and should not overshadow its other goals, i.e. enhancing judicial accountability, increasing the efficiency of the judicial system, improving the quality of justice, and ensuring the legitimacy of the judiciary.Footnote ⁹⁶ Some of these other goals (the so-called ‘new public management’ values) may collide with the classic ‘rule of law principles’ such as judicial independence.Footnote ⁹⁷ Judicial councils have been increasingly called to balance these two groups of values. Such careful balancing becomes almost impossible if judicial independence is perceived as the major goal of judicial councils. Instead, the European Court of Human Rights should treat judicial independence as one of the many values protected by judicial councils and a value that can be overridden by competing values, if necessary and justified.

It is thus clear that the European Court of Human Rights opted for a judge-centred understanding of judicial councils. The big question is whether the five abovementioned requirements for judicial councils stipulated in the Grzęda judgment apply only to the Polish scenario (where the constitution explicitly stipulates the aim of a judicial council and determines that judges have a clear majority therein) or more generally. The judgment is a little confusing on this point, as it does not say what the European Court of Human Rights itself means by judicial self-governance,Footnote ⁹⁸ nor what the Polish Constitutional Tribunal actually meant by judicial self-governance when it explicitly rejected conceptualisation of the Polish judicial council as a body of judicial self-governance,Footnote ⁹⁹ nor which conception is actually relevant. We must wait for another judgment to clarify what requirements for judicial councils apply to other countries beyond Poland. That said, it is important to stress that a judge-centred conceptualisation of judicial councils has been increasingly challenged by scholars as well as non-governmental organisations on both normative and empirical grounds.Footnote ¹⁰⁰

In sum, the European Court of Human Rights, relying too much on often obsolete soft law standards, adopted a judge-centred conception of judicial councils endorsed by various European supranational bodies. One may counteract that there is no other viable conceptualisation of a judicial council. But yes, there is. The recent scholarship on ‘fourth branch’ institutionsFootnote ¹⁰¹ and the reconceptualisation of judicial councils as ‘fourth branch’ or guarantor institutionsFootnote ¹⁰² seems to be the most promising way to limit politicisation of, as well as corporativism in, judicial councils. The takeaway lessons from the recent roundtable of the Venice Commission are already moving into this direction.Footnote ¹⁰³ However, the Court ignored this new scholarship and stuck with the old-fashioned view of judicial councils promoted by judges via their supranational soft law bodies.

Finally, the Court should be aware that its Grzęda judgment has not only ex post effects, concerning the Polish use and abuse of its judicial council and other countries that have already adopted a judicial council model, but also ex ante policy effects for those countries that are considering the introduction of a judicial council. If the Court stipulates overly stringent criteria concerning judicial councils, the latter countries will be better off sticking to their current model of judicial governance, even if it is suboptimal. In fact, one wonders how the Court wants to transplant the Grzęda principles into the Minister of Justice model of judicial governance, which still applies, for instance in Austria, Czechia and Germany. Shall the European Court of Human Rights in the future review judicial appointments of ordinary judges by the executive in those countries? Or, for instance, even the selection of Justices of the German Federal Constitutional Court by the German Parliament? If so, by what standards?

To be sure, this is not to say that judicial councils are necessarily wrong. Even consolidated democracies have recently switched to this model of judicial governance. Most recently, Ireland is heading into this direction.Footnote ¹⁰⁴ This section only argues that the Court should stay away from far-reaching abstract pronouncements on the design of judicial councils without conducting its own comparative analysis of their functioning, including their pitfalls and failures, and without acknowledging specifics of each judicial system. A judicial council is not an ‘one-size-fits-all’ institution. Depending on the scope of powers of judicial councils and the level of judicial corruption, it might make sense to have a majority of judges on such councils in one country but not in another. This also means that the European Court of Human Rights should not rely on soft law standards of various supranational bodies to such an extent as in Grzęda. These standards are often aspirational and one-sided, as they are created by judges (sitting on these supranational bodies) without the input of scholars and other governmental actors.Footnote ¹⁰⁵ The Court is not an advisory body but a court and should determine what the law is rather than what it could or should be according to one set of actors.

The ECHR and the right to challenge legislation

One last topic that will be addressed here concerns a matter that is not mentioned explicitly in the judgment, yet seems to be an inevitable consequence of the Court’s reasoning: a right protected by the Convention to challenge (at least some) legislation. The violation of Article 6(1) ECHR in this case was based on the fact that Grzęda did not have any possibility to challenge the law that terminated his mandate. If one follows that reasoning to its conclusion, it would seem that the Court implicitly required a possibility of judicial review of legislation. However, such a point of view would contradict decades of established case law.

Nowhere does the majority explicitly engage with this thorny issue.Footnote ¹⁰⁶ In one paragraph (para. 299) it seems to indirectly provide a justification, by claiming that the 2017 amending act was not compatible with the rule of law, since it was not an instrument of general application, but a measure directed at a specific group of 15 clearly identifiable people.Footnote ¹⁰⁷ The majority thus seems to have treated the 2017 amendment as an ad hoc law or a ‘bill of attainder’, a bundle of individual decisions under the guise of formal legislation. According to this line of reasoning, the 2017 amendment was formally adopted as legislation, but materially it was 15 administrative decisions, which should have been amenable for review.

Such a reasoning poses problems, however. The conceptualisation and permissibility of ad hoc laws and bills of attainder are notoriously difficult issues of constitutional theory,Footnote ¹⁰⁸ and the Court does not provide any theoretical grounds for its point of view. It does not explain what the defining elements of a bill of attainder (such as the existence of ‘punishment’Footnote ¹⁰⁹ and a ‘specificity’ requirement) are and what is the content of these elements. It is far from self-evident that a supranational body may of its own motion reclassify a domestic legal measure, at least without rigorous justification.

Moreover, the substantive reasoning of the Court here may also be called into question. Contrary to Selahattin Demirtaş and certainly to Baka – the cases to which the Court referred in its reasoningFootnote ¹¹⁰ – it is not so obvious in this case that the legislative amendment was directed against ‘specific persons’. The law applied to all judicial members of the Polish judicial council, was drafted in a general manner, and the new mode of selection of judicial members will apply to all new selections in the future.Footnote ¹¹¹ To dig deeper, specificity alone is not enough to treat a statute as a bill of attainder, because the legislature must be able to legislate with respect to legitimate ‘classes of one’ such as the President or a Chief Justice.Footnote ¹¹² When one follows the Court’s reasoning, it becomes difficult to draw the line between permissible acts of a general nature and impermissible ad hominem legislation. This is especially the case in institutional matters, since laws establishing some kind of institutional reform will most often impact a certain well-delineated group of people. In addition, as also pointed out by dissenting judge Wojtyczek, the majority reasoning undermines any transitional provisions, since those are always one-off statutory provisions and usually apply to a set of clearly identifiable persons.Footnote ¹¹³ All of this is not to say that the legislative amendment did not have the reproachable intention to remove the sitting members of the judicial council and capture that body. Yet, that in itself does not provide sufficient justification for the Court to reclassify this statute as another source of law. Invoking the rule of law is simply not enough and ‘the rule of law mantra’ should not absolve the Court from a duty to provide persuasive legal reasoning.

Irrespective of the above, when one looks beyond Grzęda, it becomes apparent that the Court has implicitly imposed such a right to challenge legislation in other cases as well, but without taking the step that the law in question was incompatible with the rule of law. One can see this in the subsequent Żurek judgment, but even more clearly in Gumenyuk. In that latter case, eight Ukrainian Supreme Court judges had been prevented from further exercising their judicial function as a result of a legislative amendment.^{Footnote 114} After finding Article 6(1) ECHR applicable to the case, the Court recalled that, given the prominent place that the judiciary occupies among state organs in a democratic society and the growing importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary, it should be particularly attentive to the protection of the judicial members against measures that may affect their status or career and that can threaten their independence and autonomy. Because of that and the widely acknowledged need to have in place procedural safeguards for the domestic judiciary, the Court held that the applicants should have in principle enjoyed direct access to a court in respect of their allegations of unlawful prevention from exercising their judicial functions.

The Court’s recent judgments thus seem to imply a right for judges to challenge legislation when it affects their independence.Footnote ¹¹⁵ Yet, as noted, that would contravene decades of established case law. It has been stated time and again that neither Article 6, nor Article 13 ECHR guarantee access to a remedy with the power to invalidate or override a formal law.Footnote ¹¹⁶ It is strange that in none of the abovementioned judgments was this elephant in the room addressed by the majority. Especially from a Grand Chamber, more clarity could have been expected in this regard. This leads to a situation in which recent jurisprudence seems to carve out an exception to a principle that has been unchanged in the Court’s case law for decades, but without explaining or even recognising it.

Importantly, not only would such an understanding imply an important nuance on decades of established case law, it would also have important repercussions for the balance of powers within European countries. Not all European countries allow for judicial review of legislation. For a country with a strong history of parliamentary sovereignty, like the United Kingdom, the absence of a strong form of judicial review could even be understood as forming part of its constitutional identity. For those countries that do allow for a form of judicial review of legislation, large differences exist in terms of what bodies are competent, who can initiate the review, the scope and intensity of review, and other procedural issues.Footnote ¹¹⁷ In that respect, not all countries may grant judges a privileged status to initiate abstract review of constitutionality. Likewise, not all countries permit concrete judicial review or individual constitutional complaints to which abstract challenges to the legislation can be attached. As such, the Court’s case law as understood above may require the Contracting Parties to reassess – and potentially recalibrate – this particularly sensitive issue concerning the balance between the legislature and the judiciary. If our understanding of the case law is correct, this would thus immediately raise a set of follow-up questions on how that requirement should work, such as what courts would be able to perform such review, what intensity of review should be adopted, what should be the consequences of this form of review, what form of relief must the courts be able to provide, and, most importantly, why only judges should have this privilege. In view of such questions and the fact that this approach by the Court seemingly goes against decades of established case law, it is up to the Court to explicitly address this issue when it is confronted with similar complaints.