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• Europäischer Gerichtshof für Menschenrechte

  ADVANCE PHARMA SP. Z O.O v. POLAND

  Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law);Pecuniary ...

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• Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)

  ADVANCE PHARMA SP. Z O.O v. POLAND

  Art. 1, Art. 6 Abs. 1Protokoll Nr. 1 Art. 1 MRK
  [ENG]

Wird zitiert von ... (8)Neu Zitiert selbst (29)

• EuGH, 24.06.2019 - C-619/18

  Die polnischen Rechtsvorschriften über die Herabsetzung des Ruhestandsalters für …

  Auszug aus EGMR, 03.02.2022 - 1469/20

  However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 111).

  The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82).

  However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 116).

  It must be borne in mind, in that regard, that, in its judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court) (C-619/18, EU:C:2019:531), the Court found that, as a result of adopting those measures, the Republic of Poland had undermined the irremovability and independence of the judges of the Sad Najwyzszy (Supreme Court) and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

  114 In that regard, it is, in the first place, common ground that the Sad Najwyzszy (Supreme Court) and, in particular, its Civil and Criminal Chambers, may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a "court or tribunal', within the meaning of EU law, they come within the Polish judicial system in the "fields covered by Union law' within the meaning of the second subparagraph of Article 19(1) TEU, meaning that they must meet the requirements of effective judicial protection (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 56 and the case-law cited).

  115 In the second place, it should be recalled that, to ensure that such bodies are in a position to ensure the effective judicial protection thus required under the second subparagraph of Article 19(1) TEU, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an "independent' tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgment of 24 June 2019, Commission v. Poland (Independance of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 57 and the case-law cited).

• Generalanwalt beim EuGH, 06.05.2021 - C-791/19

  Generalanwalt Tanchev: Der Gerichtshof sollte urteilen, dass das polnische Gesetz …

  Auszug aus EGMR, 03.02.2022 - 1469/20

  In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 211 below).

  On 5 August 2021 the First President of the Supreme Court issued two orders: the first one made in connection with the judgment of the CJEU of 15 July 2021 (C-791/19) (no. 90/2021) and the second on laying down rules on the procedure for keeping court files, registration, assignment of cases to judges and appointment of the members of the bench in certain cases (no. 91/2021).

  In particular, it had not opposed the actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 211 below).

  (c) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland of 15 July 2021 (Case C-791/19).

  The Republic of Poland is required, immediately and pending delivery of the judgment closing the proceedings in Case C-791/19,.

• EGMR, 18.10.2018 - 80018/12

  THIAM c. FRANCE

  Auszug aus EGMR, 03.02.2022 - 1469/20

  As far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former's impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C-175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited).

  The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82).

  Furthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sad Najwyzszy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the [NCJ], of the scope of the action which may be brought challenging a resolution of the [NCJ], including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81).

  The Court has emphasised (44) that "[f]urthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sad Najwyzszy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the [NCJ], of the scope of the action which may be brought challenging a resolution of the [NCJ], including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81) (emphasis added).

 
• EuGH, 19.11.2019 - C-585/18

  Das vorlegende Gericht hat zu prüfen, ob die neue Disziplinarkammer des …

  Auszug aus EGMR, 03.02.2022 - 1469/20

  - to refrain from referring the cases pending before the Izba Dyscyplinarna (Disciplinary Chamber) of the Sad Najwyzszy (Supreme Court) before a panel that does not meet the requirements of independence defined, inter alia, in the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982), and.

  (a) to suspend, first, the application of point 1a of Article 27(1) of the ustawa o Sadzie Najwyzszym (Law on the Supreme Court) of 8 December 2017, as amended by the ustawa o zmianie ustawy - Prawo o ustroju sadów powszechnych, ustawy o Sadzie Najwyzszym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 and other provisions, under which the Izba Dyscyplinarna (Disciplinary Chamber) of the Sad Najwyzszy (Supreme Court, Poland) has jurisdiction to adjudicate, at both first instance and second instance, on applications for authorisation to initiate criminal proceedings against judges or trainee judges, place them in provisional detention, arrest them or summon them to appear before it, and second, the effects of the decisions already adopted by the Disciplinary Chamber on the basis of that article which authorise the initiation of criminal proceedings against or the arrest of a judge, and to refrain from referring cases covered by that article to a court which does not meet the requirements of independence defined, in particular, in the judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982);.

  (b) to suspend the application of points 2 and 3 of Article 27(1) of the Law on the Supreme Court, as amended, on the basis of which the Izba Dyscyplinarna (Disciplinary Chamber) of the Sad Najwyzszy (Supreme Court) has jurisdiction to adjudicate in cases relating to the status of judges of the Sad Najwyzszy (Supreme Court) and the performance of their office, in particular in cases relating to employment and social security law and in cases relating to the compulsory retirement of those judges, and to refrain from referring those cases to a court which does not meet the requirements of independence defined, in particular, in the judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982);.

• VG der Evangelischen Landeskirche in Baden, 28.07.2020 - 2/20

  Auszug aus EGMR, 03.02.2022 - 1469/20

  Any doubts regarding both the Disciplinary Chamber and the Civil Chamber of the Supreme Court arising in view of the Supreme Court's resolution of 23 January 2020 had been removed by the judgment of the Constitutional Court of 20 April 2020 (U 2/20, see paragraphs 158-160 above).

  Secondly, the findings and conclusions of the Supreme Court resolution could not be taken into account in the Court's assessment because, in their words, it had been "removed" by the Constitutional Court's judgment of 20 April 2020 (U 2/20; see paragraphs 158-160 and 264 above), holding that the resolution was inconsistent with several constitutional provisions.

• EGMR, 17.01.2012 - 36760/06

  STANEV c. BULGARIE

  Auszug aus EGMR, 03.02.2022 - 1469/20

  Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V; and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012, all with further references to the Court's case-law).
• EGMR, 13.07.2000 - 39221/98

  SCOZZARI ET GIUNTA c. ITALIE

  Auszug aus EGMR, 03.02.2022 - 1469/20

  Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V; and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012, all with further references to the Court's case-law).
• EGMR, 11.01.2018 - 10613/16

  SHARXHI AND OTHERS v. ALBANIA

  Auszug aus EGMR, 03.02.2022 - 1469/20

  This applies, by definition, to the implementation of judicial decisions on interim measures that remain in force until a final decision determining the case before a court has been given (see Sharxhi and Others v. Albania, no. 10613/16, §§ 92-96, 11 January 2018).
• EGMR, 09.12.1994 - 13427/87

  RAFFINERIES GRECQUES STRAN ET STRATIS ANDREADIS c. GRÈCE

  Auszug aus EGMR, 03.02.2022 - 1469/20

  It has also consistently underlined that the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute (see, for instance, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B).
• EGMR, 05.01.2010 - 13885/04

  TENCHEVA-RAFAILOVA v. BULGARIA

  Auszug aus EGMR, 03.02.2022 - 1469/20

  This issue would have deserved more thorough consideration in the light of the Court's rich case law (see, in particular, Revel and Mora v. France (dec.), no. 171/03, 15 November 2005; Tencheva-Rafailova v. Bulgaria (dec.), no. 13885/04, 5 January 2010; Fiume v. Italy, no. 20774/05, § 35, 30 June 2009; Majski v. Croatia (no. 2), no. 16924/08, § 50, 19 July 2011; Juricic v. Croatia, no. 58222/09, 26 July 2011; Tsanova-Gecheva v. Bulgaria, no. 43800/12, § 84, 15 September 2015; F.G. v. Greece (dec.), 58740/11, 25 April 2017; and Frezadou v. Greece, no. 2683/12, 8 November 2018).
• EGMR, 15.09.2015 - 43800/12

  TSANOVA-GECHEVA c. BULGARIE
• EGMR, 25.04.2017 - 58740/11

  FIUME c. ITALIE
• EGMR, 30.06.2009 - 20774/05

  REVEL ET MORA c. FRANCE
• EGMR, 15.11.2005 - 171/03

  Streit um Justizreform: Polen verurteilt
• EGMR, 22.07.2021 - 43447/19

  Rückwirkende Strafschärfung und Anerkennung des Meistbegünstigungsprinzips als …
• EGMR, 17.09.2009 - 10249/03

  HENROTIN-LE FLOC'H ET AUTRES c. FRANCE
• EGMR - 25/19 (anhängig)

  Unterstützen einer terroristischen Vereinigung (Stärkung des …
• EuGH, 19.06.1990 - C-213/89

  The Queen / Secretary of State for Transport, ex parte Factortame
• EuGH, 09.11.1995 - C-465/93

  Atlanta Fruchthandelsgesellschaft und others (I) / Bundesamt für Ernährung und …
• EuGH, 26.03.2020 - C-542/18

  Réexamen Simpson/ Rat - Überprüfung der Urteile des Gerichts der Europäischen …
• EuGH, 05.11.2019 - C-192/18

  Die polnischen Vorschriften über das Ruhestandsalter von Richtern und …
• EGMR, 02.06.2005 - 38240/02

  ZOLOTAS c. GRECE
• EuGH, 31.01.2013 - C-175/11

  D. und A. - Vorabentscheidungsersuchen - Gemeinsames europäisches Asylsystem - …
• EuGH, 17.09.2018 - C-543/18

  Réexamen HG/ Kommission - Überprüfung
• EGMR, 28.06.1984 - 7819/77

  CAMPBELL AND FELL v. THE UNITED KINGDOM
• EGMR, 09.11.2006 - 65411/01

  SACILOR LORMINES c. FRANCE
• EGMR, 16.06.2022 - 39650/18

  ZUREK v. POLAND
• EGMR, 15.03.2022 - 43572/18

  F.G. v. GREECE
• BGH, 28.06.2018 - AK 26/18

• EGMR, 15.03.2022 - 43572/18

  GRZEDA v. POLAND

  z o.o c. Pologne, no 1469/20, 3 février 2022, qui n'est pas encore définitif à l'heure où ces lignes sont écrites, ayant été rendu après que la Grande Chambre eut « adopté'son arrêt sur la présente affaire lors de ses deuxièmes délibérations).

  z o.o c. Pologne, no 1469/20, 3 février 2022).

• EGMR, 06.10.2022 - 35599/20

  JUSZCZYSZYN v. POLAND

  z o.o. v. Poland (no. 1469/20, §§ 95-109, 3 February 2022) and Grzeda v. Poland ([GC], no. 43572/18, §§ 64-76, 15 March 2022).

  z o.o. v. Poland (no. 1469/20, §§ 110-169, 3 February 2022) and Grzeda v. Poland ([GC], no. 43572/18, §§ 77-119, 15 March 2022).

• EGMR, 19.03.2024 - 84388/17

  KURAL v. TÜRKIYE

  The Court reiterates that Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States (see Advance Pharma sp. z o.o v. Poland, no. 1469/20, § 331, 3 February 2022).

 
• EGMR, 12.12.2023 - 11454/17

  PRZYBYSZEWSKA AND OTHERS v. POLAND

  The Court thus agrees with the applicants that the effectiveness of their constitutional complaint also has to be seen in conjunction with the general context in which the Constitutional Court had operated since the end of 2015 (see Advance Pharma sp. z o.o v. Poland, no. 1469/20, § 319, 3 February 2022).
• EGMR - 7363/22 (anhängig)

  SZEWCZYK v. POLAND and 18 other applications

  z o.o v. Poland, no. 1469/20, 3 February 2022 and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020.
• EGMR - 28371/23 (anhängig)

  WALĘSA v. POLAND (No. 2)

  z o.o. v. Poland, no. 1469/20, §§ 93 and 294-351, 3 February 2022; and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020.
• EGMR - 2203/23 (anhängig)

  GRZEGORCZYK v. POLAND

  z o.o v. Poland, no. 1469/20, 3 February 2022) and comparable to a disciplinary sanction, in so far as the applicant's autonomy was disregarded and he was forced to adjudicate in a field outside of his expertise.
• EGMR - 13966/22 (anhängig)

  KAPICA v. POLAND and 1 other application

  z o.o v. Poland, no. 1469/20, 3 February 2022 and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020.