The right to a tribunal established by law and the judicial appointment procedure: new developments through the ECHR and the CJEU’s case-law. Its application in the case of Poland
Abstract
This work analyses how the Rule of Law in Poland has declined since the elections held in the country in 2015, in which the ultraconservative party Law and Justice obtained the majority in both legislative chambers and reached the Government. Since then, this situation has allowed the party to modify the law, so that it ended up affecting the judicial independence in the country. Among other factors, the modification in the composition of the Constitutional Tribunal and the Supreme Tribunal or the politization of the National Council of the Judiciary, which is the constitutional organ responsible for the judicial appointments in Poland, contributed to this deterioration of the Rule of Law. In this scenario, a reaction in form of dialogue between the CJEU and the ECHR appears, and both Tribunals quote each other through their judgements developing the concept of “tribunal established by law”. In this way, both establish that the irregularities in the procedure of appointment of judges may negatively affect the right of a tribunal established by law, thus including the appointment in the scope of this right.
Received: 25 October 2022
Accepted: 22 February 2023
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Last update: 26/10/2026
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