Judgement 50849/21

Applicant name WAŁĘSA
Applicant type Natural person
Number of applicants1
Country POLAND
Application no. 50849/21
Date  23/11/2023
Judges Marko Bošnjak, President,
 Alena Poláčková,
 Ivana Jelić,
 Gilberto Felici,
 Erik Wennerström
 Raffaele Sabato, judges,
 Ioannis Ktistakis, ad hoc judge,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason No legal basis
Type of privacy Procedural privacy; reputational harm
Keywords Quality of law; judicial independence; pilot judgement
Facts of the case  Lech Wałęsa’s reputation smeared.
AnalysisThe Court finds a violation of Article 6 ECHR on multiple accounts and holds that it is not necessary to assess whether there has also been a violation of Article 13 ECHR, given that finding. Applicant also invokes Article 8 ECHR, believing that the reversing of the final judgment in his case, which concerned his reputation and private life, constituted an unlawful interference with his private life. The government disputed that this alleged impact was sufficient to meet the de minimis requirement. The Court, however, sets that argument aside: ‘Unquestionably, the applicant is one of the most renowned figures in Poland’s contemporary history. He is recognised and well known in Poland and, as a matter of fact, elsewhere in the world for his leadership of the Solidarity trade union, underground anti-communist activities – in connection with which he was awarded the 1983 Nobel Peace Prize – and his contribution to the dismantling of communism in Central and Eastern Europe in 1989‑1990. Against this background, it is evident that Mr Wyszkowski’s statements accusing the applicant of paid collaboration with the communist secret service in the 1970s – statements which were the central issue in the impugned proceedings – affected the very core of what is commonly considered his life achievements as a politician, Solidarity leader and anti-communist activist. §272).’ The government also underlined that matter concerned the applicant’s public life, and was subject to political and societal debate, thus suggesting that the claim should be dismissed ratione materiae.  But the Court finds that public figures are also entitled to protection of their private life and that these accusations affected applicant’s reputation, which falls under the scope of Article 8 ECHR.
As to the question of whether the interference was legitimate, the Court turns to the requirement of having a legal basis and more specifically, the quality of law doctrine it has developed and the rule of law referred to in the Preamble to the Convention. It reiterates that the quality of law doctrine requires that a law should be accessible and foreseeable as to its consequences. This in turn means that the law should set out the circumstances in which it applies and the conditions authorities must meet before they can take recourse to the law.  The law must contain proper safeguards against the arbitrary use of power. It also reiterates that whilst Article 8 contains no explicit procedural requirements, the Court cannot satisfactorily assess whether the reasons adduced by national authorities to justify their decisions were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests. The Court has already held that there has been a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention on two counts. First, the applicant’s case was heard by the CERPA, a body which cannot be considered an independent and impartial tribunal. Second, the Court established a violation on the basis of a conflict with the principles of legal certainty and res judicata, in particular owning to the time-limits for lodging an extraordinary appeal allowed to the Prosecutor General, being exceptionally extended and, operating retrospectively. These matters clearly also undermine the quality of law, so that the Court finds a violation of Article 8 ECHR.
As to the complaint under Article 18 ECHR, the ECtHR stresses the ancillary nature of that provision, similar to Article 14 ECHR. Article 18 can be invoked in combination with Articles 5, 8, 9, 10 and 11 ECHR; whether it can also be relied on in relation to Article 6 ECHR, the ECtHR leaves open.
The Court then uses the Pilot Judgement procedure, pointing to many other cases concerning the same of similar questions and to the fact that at the root of the violation of Article 6 ECHR in this cases lay fundamental deficiencies of the Polish legal system. It concludes that ‘considering the rapid and continued increase in the number of applications concerning the independence of the judiciary in Poland and alleging, in particular, a breach of the right to an “independent and impartial tribunal established by law” over the past eighteen months and the gravity of the impugned situation, commonly referred to as “the rule of law crisis”, as a result of which numerous yet unidentified persons may be adversely affected, the Court considers that the systemic problems identified above may aggravate quickly and call for urgent remedial measures. The Court therefore concludes that the present case is suitable for the application of the pilot-judgment procedure and dismisses the Government’s objection as to the application of this procedure. §327)’ It requires the Polish government to correct the fundamental flaws in its legal system, but leaves to the government’s discretion to decide how the findings of the judgement should be implemented.  
Other Article violation? Yes Article 6 ECHR; No Artilce 13 and 18 ECHR.
Damage awarded Holds that the above violations of Article 6 § 1 of the Convention originated in the interrelated systemic problems connected with the malfunctioning of domestic legislation and practice caused by:
(a)  a defective procedure for judicial appointments involving the National Council of the Judiciary as established under the 2017 Amending Act;
(b) the resulting lack of independence on the part of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court;
(c) the exclusive competence of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court in matters involving a plea of lack of independence on the part of a judge or a court;
(d) the defects of the extraordinary appeal procedure as established in paragraphs 228-239 and 323 (c) of this judgment;
(e) the exclusive competence of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court to deal with extraordinary appeals;
Holds that, in order to put an end to the systemic violations of Article 6 § 1 of the Convention identified in the present case, the respondent State must take appropriate legislative and other measures to secure in its domestic legal order compliance with the requirements of an “independent and impartial tribunal established by law” and the principle of legal certainty as guaranteed by this provision;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand euros), to be converted into the currency of the respondent State, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Documents Judgment