Relinquishment of jurisdiction contra legem: The European Court of Human Rights’ decision in Grzęda v. Poland

The European Court of Human Rights, like any international court, is bound by its founding treaty. In particular, the jurisdiction and powers of the Court are prescribed by the European Convention on Human Rights (ECHR). A recent case of judicial self-empowerment concerning the relinquishment of jurisdiction to the Grand Chamber has triggered concerns that the Court is not adhering strictly to the Convention.

In the case of Grzęda v. Poland (application no. 43572/18), the Court was seized with the reform of the judiciary in Poland which had resulted in the office of a Supreme Administrative Court judge elected to the National Council of the Judiciary being terminated before the end of his four-year term. On 10 November 2020, the Chamber of the Court’s First Section constituted to consider the case decided to give notice to the parties of its intention to relinquish jurisdiction in favour of the Grand Chamber in accordance with Article 30 of the ECHR. This decision may have been motivated by the fact that 27 other applications were pending before the Court relating to various aspects of the reform of the judicial system in Poland.

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question might have a result inconsistent with a judgment previously delivered by the Court, Article 30 allows the Chamber to relinquish jurisdiction in favour of the Grand Chamber, “unless one of the parties to the case objects.” On 9 December 2020, the Polish Government filed an objection to the Chamber’s proposal to relinquish jurisdiction. However, on 9 February 2021 the Chamber decided, by a majority, that it was unable to accept Poland’s objection since it could not be considered valid under the terms of Article 30 of the ECHR taken in conjunction with Rule 72 §§ 1 and 4 of the Rules of Court. This was the first time that a Chamber had overruled a party’s objection to relinquishment.

The Chamber based its decision both on Article 30 of the ECHR and Rule 72 of the Rules of Court. The latter was first introduced on 1 November 1998, upon entry into force of Protocol No. 11 to the ECHR which restructured the control machinery established by the Convention in order to maintain and increase the efficiency of human rights protection. Rule 72 § 1 repeats the proviso in Article 30 of the ECHR that the Chamber may relinquish jurisdiction in favour of the Grand Chamber, “unless one of the parties to the case has objected” but then makes that objection subject to several conditions set out in paragraph 4 of this Rule. Rule 72 § 4 also states that an “objection which does not fulfil these conditions shall be considered invalid by the Chamber.”

The requirement that objections to relinquishment must be “duly reasoned”

One of the conditions set out in Rule 72 § 4 is that the objection must be “duly reasoned”. In its letter to the Court of 9 December 2020, the Polish Government objected to relinquishment for “structural and procedural reasons” but did not further elaborate on these reasons. The Government noted at the outset, however, that the Chamber had not indicated any reasons for relinquishment. It then stated that relinquishment would mean that this exceptionally sensitive case would only be heard by the Grand Chamber; that is, the members of the Chamber supplemented by the President of the Court, the Vice-Presidents, the Presidents of the Chambers, and other judges chosen by a drawing of lots (Rule 24 §§ 2(c) and (e) of the Rules of Court). On the other hand, if the regular procedure were followed, the case could be independently assessed by the judges of the Chamber and, in case of a subsequent post-judgment referral under Article 43 ECHR, by a Grand Chamber composed of judges other than the judges from the Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned (Article 26 § 5 ECHR). The Government argued further that relinquishment would eliminate a possible chance of the case being re-heard by the Grand Chamber under Article 43 of the ECHR.

The Chamber’s reasons for dismissing the objection to relinquishment

The Chamber decided that the Polish objection was not “duly reasoned” and relinquished jurisdiction in favour of the Grand Chamber, which held a hearing in the case on 19 May 2021. In letters to the parties, the Chamber stated that the Government had not argued that the case was unsuitable for relinquishment or provided any reasons as to why the case would not meet the criteria for relinquishment laid down in Article 30; i.e. why it would not raise a serious question affecting the interpretation of the Convention or why the resolution of a question before the Chamber might not have a result inconsistent with a judgment previously delivered by the Court. It must be noted at the outset that the Chamber gave the Polish Government no indication of why it intended to relinquish jurisdiction which made it difficult for the Government to address these questions. It is not the task of the parties to second-guess future decisions of the Chambers and make hypothetical counter-arguments. In any case, one may ask how the parties – often at an early stage of the proceedings – could know or assess whether the case raises a serious question affecting the interpretation of the Convention or whether the Chamber would want to depart from the Court’s previous case-law. Chambers have sometimes given notice to the parties of their intention to relinquish jurisdiction within a few weeks of transmitting to the respondent government the application and supporting documents, many of which were not even translated into one of the official languages of the Court (e.g., Armenia v. Turkey, no. 43517/20). The requirements in Article 30 are criteria to be applied by the Chamber when making a decision on relinquishment. The Chamber “may” relinquish jurisdiction if and only if these requirements are met. There is, however, no suggestion that the parties may only object on the grounds that these requirements are not met. There may be many different reasons why the parties may object. As pointed out in the literature, an “interest in delaying the proceedings may be one reason. Another may be the conviction, based on the drafting history of Protocol 11 and the famous historic compromise between the states that were in favour of a two-tier system and those that were not, that the state has a right to an examination of the case by two instances.” A further reason may be to avoid a case being joined with another case – especially one against another respondent State – already before the Grand Chamber.

The Chamber also stated that Poland – as one of the signatories of the 2012 Brighton Declaration on the future of the European Court of Human Rights – “voluntarily and unreservedly agreed to a collective policy of refraining from objecting to relinquishment” pending the entry into force of Protocol No. 15 to the ECHR, which was to remove from the Convention the parties’ power to object to relinquishment. Furthermore, Poland had “ratified Protocol No. 15 on 10 September 2015, thus manifesting in a legal form its undertaking that the States Parties to the proceedings before the Court should no longer object to relinquishment.” The Chamber was twisting the facts here. All the Conference of the States Parties to the Convention had done in the legally non-binding Brighton Declaration was to conclude that “Article 30 of the Convention should be amended” and to “encourage[e] the States Parties to refrain from objecting to any proposal for relinquishment by a Chamber pending the entry into force of the amending instrument” (italics added). There was thus no question of Poland agreeing “voluntarily and unreservedly” to anything through the Brighton Declaration. The Chamber was also misrepresenting the law. Subject to Article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), a treaty creates legal effects only upon its entry into force. Exercising rights under an existing treaty prior to the entry into force of an amendment to that treaty does not defeat the object and purpose of the amendment. Prior to the entry of a treaty there is no legally binding undertaking. According to Article 26 of the VCLT, only a “treaty in force is binding”. Poland’s ratification of the Protocol as such therefore did not produce any legal effect – which the Chamber must have known, since it spoke in its decision of “policy” rather than “obligation” and what Poland “should” rather than “shall” do.

The Chamber further claimed that “the States Parties’ position in respect of Protocol No. 15 had evolved since the Brighton Declaration […] through their further consistent support for the reform foreseen under the Protocol as shown by their successive ratifications”. In this connection the Chamber referred to Article 31(3) of the VCLT, according to which any subsequent agreement or practice in the application of the treaty shall be taken into account when interpreting a treaty or applying its provisions. It is, however, difficult to comprehend how individual ratifications of an amending treaty can constitute or establish an agreement of the parties regarding the interpretation of the original treaty achieving the same result as the amending treaty, but prior to the latter’s entry into force. If that were the case, the provision in Article 7 of Protocol No. 15 on the entry into force of the Protocol would have been superfluous. Ratifications are to bring about an agreement; they do not themselves constitute or establish an agreement.

In the Chamber’s assessment, the reasons given by the Polish Government for its objection to relinquishment were “in essence limited to reliance on the power of objection which was – and still is – formally available to the Government in accordance with as yet unamended Article 30”. Those reasons “could be regarded as tantamount to an attempt to re-argue the legal policy choices that Poland had itself made voluntarily and unreservedly by signing the Brighton Declaration and ratifying Protocol No. 15.” In fact, the Polish Government’s objection to relinquishment could just be seen as what it was – the exercise of a treaty power which, as the Chamber conceded, was still available to Poland under Article 30 of the ECHR.

The Chamber finally justified its decision by emphasising that Article 43 of the ECHR did not confer on the parties an unfettered right to a two-tier examination of the case. However, this is not what the Polish Government argued. On the contrary, the Government argued that relinquishment would “eliminate a possible chance of the case being reconsidered by the Grand Chamber under Article 43” (italics added). It is exactly such a chance which the High Contracting Parties wanted to create when they made relinquishment of jurisdiction subject to approval of the parties.

Amendment of the Convention through the backdoor of the Rules of Court

All the Chamber’s reasons for rejecting Poland’s objection to relinquishment were based on the condition set out in Rule 72 § 4 that an objection must be “duly reasoned”. This raises the question of whether the Court can establish additional or more stringent requirements for objections to relinquishment in its Rules than foreseen in the Convention itself.

Article 30 of the ECHR in its present form was introduced in the Convention by Protocol No. 11, which was adopted on 11 May 1994. According to its wording – “unless one of the parties to the case objects” – the parties to the case have an unfettered or absolute right to object to relinquishment of jurisdiction in favour of the Grand Chamber. The Explanatory Report to Protocol No. 11 to the ECHR explained the reasons for such a right in Article 30 as follows:

“79. […] The reason for making relinquishment subject to the approval of the parties should be seen in the light of the introduction of the concept of ‘re-hearing’, in accordance with the decision of the Committee of Ministers on 28 May 1993. The provision is designed so as to secure the possibility that such a “re-hearing” not be adversely affected.”

The right to object was to allow a party to object to relinquishment, but then subsequently seek referral of the case to the Grand Chamber under Article 43 of the ECHR if it had objections to the Chamber’s judgment either on grounds of jurisdiction or the merits. For example, in Öcalan v. Turkey, no. 46221/99, the Turkish Government first objected to relinquishment and subsequently, after the Chamber judgment, requested that the case be referred to the Grand Chamber: a request accepted by a panel of the Grand Chamber. Objection to relinquishment has not been seen as a reason for refusing referral if important issues of law were raised in the case – objection did not create an estoppel.

That the parties have a “right” to object to relinquishment was confirmed by the Court more recently in its Preliminary opinion in preparation for the Brighton Conference on the future of the Court, adopted on 20 February 2012, which reads in part:

“[T]he Court wishes to give compulsory effect in its Rules of Court to the possibility for a Chamber to relinquish jurisdiction under Article 30 where it envisages departing from settled case-law. For this measure to be effective, States would have to renounce the right to oppose relinquishment to the Grand Chamber. Consequently, thought should be given to removing this right from the Convention” (italics added).

Until the decision in Grzęda v. Poland, the Court’s practice accepted the parties’ unfettered right to object, treating any objection as an automatic veto. For example, in Öcalan v. Turkey, no. 46221/99, the Chamber stated in its judgment of 12 March 2003, para. 6, that the Turkish Government had objected to relinquishment and “[a]s a consequence, the case remained before the Chamber.” The Chambers continued to examine the case whenever one or both parties objected to relinquishment (see, e.g., Al-Dulimi and Montana Management Inc. v. Switzerland, no. 5809/08 [GC], 21 June 2016, para. 5; Herri Batasuna and Batasuna v. Spain, nos. 25803/04, 25817/04, 30 June 2009, para. 6). Until most recently, all decisions on relinquishment were accompanied by the express notice that neither or none “of the parties having objected to relinquishment” (see, e.g., Ukraine v. Russia (Re Crimea), nos. 20958/14, 38334/18 [GC], 16 December 2020, para. 10; Nicolae Virgiliu Tănase v. Romania, no. 41720/13 [GC], 25 June 2019, para. 7; Denisov v. Ukraine, no. 76639/11 [GC], 25 September 2018, para. 5). In the case of Scoppola v. Italy (No. 2), the Grand Chamber stated that “if the Government were of the opinion that the proposal to relinquish jurisdiction was not correct, they could have objected by virtue of Article 30 in fine of the Convention” (no. 10249/03 [GC], 17 September 2009, para. 59). There was no suggestion that such an objection was only valid if, in view of the Court, it was “duly reasoned”.

The right of the parties to object to relinquishment will be removed only upon entry into force of Protocol No. 15 to the ECHR on 1 August 2021. Article 3 of that Protocol provides for the deletion of the words “unless one of the parties to the case objects” in Article 30 of the ECHR. Until that time, the parties continue to have a right to object. This was confirmed by the Court in its Opinion on Draft Protocol No. 15 of 6 February 2013, where the Court spoke of Protocol No. 15 bringing about “the removal of the parties’ veto over the relinquishment of a case to the Grand Chamber (Article 30)”. Article 8 § 2 Protocol No. 15 expressly provides that the amendment to Article 30 of the ECHR “shall not apply to any pending case in which one of the parties has objected, prior to the date of entry into force of this Protocol, to a proposal by a Chamber of the Court to relinquish jurisdiction in favour of the Grand Chamber”. This right to object is also unaffected by the legally non-binding 2012 Brighton Declaration on the Future of the European Court of Human Rights, in which the Conference of States Parties to the Convention “encourages the States Parties to refrain from objecting to any proposal for relinquishment by a Chamber pending the entry into force of the amending instrument” (§ 25(d) of the Brighton Declaration).

Conclusion

On 9 February 2021, when the Chamber rejected Poland’s objection to relinquishment of jurisdiction, Article 30 of the ECHR was thus still applicable, including the requirement that the Chamber may only relinquish jurisdiction if none of the parties to the case objects. While Article 25(d) of the ECHR allows the plenary Court to adopt the rules of Court, it does not allow the Court to change the substance of the Convention. The situation is exacerbated by the fact that Rule 72 § 4 of the Rules of Court introduces a totally imprecise and ambiguous condition in the requirement of the objection being “duly reasoned”. In the case of Grzęda v. Poland, it allowed the Chamber to disregard an unwanted objection on the ground of it being “unduly reasoned” – without itself giving adequate reasons for that decision.