That the Polish constitutional crisis would have had serious human-rights implications was clear from the start. It would have been naïve to assume that the CoE would not have had to react, somehow, to the momentous changes taking place in the second central European state it had admitted as a member after November 1989 (interestingly, the first such state was Hungary). The real question had always been how the ECtHR would respond to a series of complaints about judicial appointments (and careers) that presented it with a unique challenge. They were part of a structural rule-of-law problem in the country concerned; they involved legal issues raising serious questions of ‘institutional balance’ between Strasbourg and the national courts; and they had been lodged at a time when the ECtHR was subjected to sustained criticism for excessive judicial activism.
One should immediately recall that part of Strasbourg’s answer to this criticism has been ‘subsidiarity’. Although scepticism has been expressed about the use of the concept, subsidiarity is supposed to refer to the simple fact that the primary protectors of human rights are national authorities. When the latter do a decent job, taking all relevant considerations into account, the ECtHR should defer to their judgment. Europe should only intervene when the national level has failed.
One should also recall that sometimes the ECtHR, before deciding whether the ECHR has been complied with, has to ascertain whether national law has been properly applied. This will happen, for example, when the ECtHR considers whether a tribunal has been established in accordance with national law under Article 6. Even before subsidiarity became a buzzword in Strasbourg, the ECtHR had accepted that it should follow the national courts’ interpretation of what national law required and should only intervene when this was ‘arbitrary or manifestly unreasonable’.
Yet in recent rule-of-law cases the ECtHR openly disagreed with the findings of the highest national courts on whether the judges who had heard a dispute had been appointed in accordance with national law. How did the ECtHR find the courage to do so in the “age of subsidiarity”? The unusual circumstances of the first such case, Astradsson v. Iceland, which sets the important principle that the legality of the appointment of a judge can be reviewed incidentally in any dispute that s/he is called upon to hear, undeniably helped.
Unsuccessful candidates for appointment to the bench had sued the state for damages alleging various irregularities. The Supreme Court of Iceland granted them compensation on the ground that the appointment procedure was faulty. However, the successful candidates continued hearing cases and one of them convicted Astradsson. Astradsson asked for the incidental review of the legality of this judge’s appointment while attacking the sentence she had imposed on him. The Supreme Court thought that it would be too much to consider that the problems in the appointment procedure could stain with illegality all decisions issued by the judge in question. It balanced the interests of legality – respecting the rules when appointing her – against certainty – not upsetting the decisions she had issued – and came out in favour of certainty.
The ECtHR disagreed. It considered that the two interests should have been balanced differently and that Astradsson had not been tried by a tribunal established by law; as a result, Article 6 ECHR had been breached. The ECtHR was undoubtedly helped in reaching this conclusion by the first Supreme Court decision on compensation. Having two authoritative court-decisions, one on legality and another doing the balancing, is what makes Astradsson unusual. In most cases there will be just one decision confirming the appointment, which Strasbourg will find difficult to question in practice, for the above-mentioned reasons (see my article in Miroslaw’s Wyrzykowski’s Liber Amicorum/Amicarum).
There is, however, one important exception concerning countries where EU law is part of national law. These legal orders are not immune to the CJEU’s making a pronouncement related to respect for European rules in judicial-appointment procedures. This may occur in infringement or preliminary-reference proceedings. Then the national courts will, inter alia, do the balancing between legality and certainty, in the context of either the individual case leading to the preliminary reference or other such cases following up on the Article 258 TFEU action.