Marco Fisicaro

Safeguarding Judicial Independence (and Subsidiarity) Through Interim Measures: The New ECtHR’s Strategy at the Height of the Polish Constitutional Crisis

  • Abstract

Informations and abstract

Keywords: European Court of Human Rights; interim measures: judicial independence; rule of law; subsidiarity; Poland

Over the last few years, the European Court of Human Rights has rapidly carved out for itself a critical role in defending judicial independence standards against the ongoing process of constitu-tional backsliding unfolding in Poland. Aware of the rapid democratic decline facing the country, the Court has recently decided to complement its strategy vis-à-vis the Polish crisis by making use of interim measures. Since early 2022, in fact, the Court has repeatedly resorted to its powers under Rule 39 of the Rules of Court to provide immediate protection to Polish judges facing disciplinary proceedings due either to their off-bench mobilisation against the Government’s reforms or to the judicial application of European standards on judicial independence as enshrined in art. 6(1) ECHR, as well as in art. 19 TEU and art. 47 of the EU Charter of Fundamental Rights. The article argues that this development was far from obvious in light of the Court’s practice under Rule 39 of the Rules of Court and offers a first appraisal of the reasons underlying the Court’s more active stance to the use of interim measures in the Polish crisis.

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