Judgment 25226/18, 25805/18, 8378/19, 43949/19

Applicant name Pajak and others
Applicant type Natural person
Number of applicants 4
Country Poland
Application no.25226/18, 25805/18, 8378/19, 43949/19
Date 24/10/2023
Judges Marko Bošnjak, président,
 Krzysztof Wojtyczek,
 Péter Paczolay,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Ioannis Ktistakis
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Discrimination Article 14 ECHR
Type of privacy Private life
Keywords Dismissal office; ratione materiae; ratione personae; discrmination
Facts of the case The applications concern the applicants’ allegation that they did not have a legal remedy through which they could have challenged the refusal of the Minister of Justice and the National Council of the Judiciary, respectively, to authorize them to continue to exercise their functions as judges beyond retirement age , which was then set at 60 years for female judges. They also raise a question relating to the compatibility of the respective retirements of three of the four applicants with the principle of non-discrimination based on sex and age.
AnalysisThe Court finds a violation with respect to Article 6 ECHR stressing that because of the eminent place occupied by the judiciary among the organs of the State in a democratic society and the importance attached to the separation of powers and the need to preserve the independence of justice, it itself must be particularly attentive to the protection of members of the judicial body against measures likely to threaten their independence and their autonomy. The early termination of the functions of judge as a result of unilateral decisions of the representative of the executive power and the body subordinate to the latter is so unique that there should be serious reasons capable of justifying an exceptional absence of judicial review. But the Government has provided non, hence the ECtHR finds a violation of Article 6 ECHR.

Invoking Articles 13, 14 and 17 of the Convention, the first and second applicants complain that the conditions surrounding their early retirement constituted discrimination against them based on sex in matters of ‘job. They allege, in particular, that these measures were not only contrary to the provisions on gender equality in the public service, those relating to education, employment, career, remuneration for work of equal value and of social protection of the Polish Constitution but also had harmful repercussions on their respective financial, professional, social and personal situations.

The Court, instead, approaches these claims a question of Article 8+14. It underlines that public matters may also affect a person’s private life. It underlines that the Court applies the notion of “private life” following two different approaches: α) the finding of the existence of a question relating to “private life” as a reason for the dispute (approach based on reasons) and β) the deduction of the existence of a question relating to “private life” with regard to the consequences of the measure complained of (approach based on consequences). When the reasons underlying the adoption of a measure affecting the professional life of a person have no connection with their private life, a question may nevertheless arise under Article 8 if this measure has had or may have serious negative consequences on his private life. In cases where the Court adopts the approach based on the consequences of the measure in question, the analysis of the seriousness of these occupies an important place.

This point mainly regards the ratione personae principle. Next the Court stresses what seems an exhaustive list of three points that could fall under the right to private life, namely if a matter affects i) their “circle intimate”, ii) the possibility for them to form and develop relationships with others or iii) their reputation. If this were indeed the case, this would radically limit the material scope of Article 8 ECHR, under which the Court has historically adopted a wide interpretation of the right to private life. Although the ECtHR is not convinced that the first of the three elements is affected, it finds that the other two points are sufficiently affected in this case to bring the matter under the scope of Artilce 8 ECHR.

As to the substance, the Court finds that the Government has not submitted any evidence likely to convince it that female judges having reached the age of 60 in general or the applicants in the present case would have been less able than male judges in a similar situation to properly discharge their professional obligations. Thus there has been a violation on this point.

The Court dismisses further claims as to Article 1 of Protocol No. 1 in combination with Article 14 ECHR and with respect to Article 13 of the Convention combined with Article 8.

The two dissenting judges stress that no violation of Article 6 ECHR should have been found, nor a violation of Artilce 8+14 ECHR. With respect to the latter, they stress if the legislation in question produces negative effects in the area of professional life for the applicants, those do not reach the threshold of gravity required. The issue raised falls under Protocol No. 12 to the Convention, which has not been ratified by the respondent State.
Other Article violation? Yes, Article 6; No Articles 13, 17, Article 1 P1
Damage awarded que l’État défendeur doit verser, dans les trois mois à compter de la date à laquelle l’arrêt sera devenu définitif conformément à l’article 44 § 2 de la Convention, les sommes suivantes, à convertir dans la monnaie de l’État défendeur, au taux applicable à la date du règlement :
26 000 EUR à la première, à la deuxième et à la quatrième requérante respectivement, plus tout montant pouvant être dû par ces requérantes à titre d’impôt, pour dommage matériel et moral ;
20 000 EUR à la troisième requérante, plus tout montant pouvant être dû par cette requérante à titre d’impôt, pour dommage matériel et moral ;
600 EUR conjointement à la première et à la deuxième requérante, plus tout montant pouvant être dû à titre d’impôt, pour frais et dépens ;
Documents Judgment