On 10 March 2022, the politicised Constitutional Tribunal (CT) ruled that Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees everyone the right to a fair trial, is incompatible with the Polish Constitution.
Another verdict of the Constitutional Tribunal is a revenge for the European Court of Human Rights' ruling undermining key elements of the government reform. The motion, for a review of the constitutionality of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms regarding the right to a fair trial was filed by the Prosecutor General and Minister of Justice Zbigniew Ziobro as a response to a November ruling by the ECHR stating that the Supreme Court's Extraordinary Control and Public Affairs Chamber is not an independent and impartial court because the system for appointing judges is inadequate. The ECHR judgments in the cases of judges Alina Bojara, Mariusz Broda, Monika Dolinska-Ficek and Artur Ozimek, as well as lawyer Joanna Reczkowicz, indicated that judicial reforms in Poland were limiting citizens' right to an independent court. Ziobro, on the other hand, argues that the constitutional framework for the judiciary is set out in the Polish Constitution and the ECHR has no right to judge the status of judges on its own.
The Constitutional Tribunal argues that the provision is unconstitutional to the extent that it "authorises the ECHR or national courts to assess the compatibility with the Constitution and the Convention of laws concerning the organisation of the judiciary, the competence of courts, and the law defining the organisation, procedure and method of election of members of the National Council of the Judiciary". According to the Constitutional Tribunal, the challenged provision of the Convention is also unconstitutional to the extent that 'in assessing whether the condition of a court established by law is met, it allows the ECHR or national courts to disregard constitutional provisions, laws and judgments of the Polish Constitutional Tribunal; it allows independent creation of norms concerning the procedure for appointing judges of national courts by the ECHR or national courts in the process of interpreting the Convention'. In addition, the provision's unconstitutionality, as judged by the Constitutional Tribunal, also concerns the extent to which 'the concept of rights and obligations of a civil nature includes a judge's subjective right to hold an administrative position within the structure of the common judiciary in the Polish legal system'.
The latest ruling by the Constitutional Tribunal lowers human rights standards in Poland and provides an excuse for not implementing ECHR rulings which call on the Polish government to remedy irregularities in the judicial appointment process.
The Constitutional Tribunal ruled that ECHR procedures regulating judicial appointments are incompatible with the Polish Constitution because they fail to take into account its provisions, laws and rulings of the Constitutional Tribunal. According to the judgment, the Minister of Justice has unlimited authority to appoint and dismiss vice-presidents of courts, and Polish law does not provide for a right of appeal against a decision of the Minister of Justice to remove a vice-president from his post. Thus, in the opinion of the Constitutional Tribunal, also Article 6(1) of the Convention on Human Rights cannot guarantee the subjective right of a judge to occupy an administrative function in the administration of justice.
Guaranteeing full independence and impartiality of judges is a necessary condition for ensuring everyone the right to a fair trial. ECHR judgments have indicated that Poland's reforms of the judiciary risk putting political pressure on judicial appointments, particularly through the operation of the substandard National Judicial Council. The verdict of the Constitutional Tribunal deprives Polish judges of the authority under Article 6(1) of the Convention to review judicial appointments and possibly overturn their rulings, and is an attempt to deprive independent Polish judges of the right to review the compliance of the writ reform of the judiciary with the standards of the European Convention on Human Rights.
The Constitutional Tribunal’s decision is similar to a 2017 ruling by a Russian constitutional court. Russian judges then declared the supremacy of Russian law over the European Convention on Human Rights. The Polish Constitutional Court's decision came on the day Russia announced that it would withdraw from the Council of Europe, which will also mean denouncing the European Convention on Human Rights, on the basis of which the European Court of Human Rights rules.
The European Convention on Human Rights (full name: Convention for the Protection of Human Rights and Fundamental Freedoms, abbreviated as "European Convention" or ECtHR) is an international agreement concluded by the member states of the Council of Europe. The Convention was adopted by 12 member states of the Council of Europe in 1950 and entered into force in 1953. 47 states are parties to the Convention (June 2015), i.e. all member states of the Council of Europe. Poland ratified the Convention in 1993. The guarantor of compliance with the Convention is the European Court of Human Rights. The right of complaint enables individuals (individual complaints) and states parties to the Convention (interstate complaints) to assert the rights and freedoms guaranteed by the Convention.
The Court ruled on this case in a five-person panel chaired by Stanisław Piotrowicz. The judgment of the Constitutional Court was unanimous and is final. According to the ECHR ruling in the case Xero Flor v. Poland (4907/18), yesterday's ruling of the Constitutional Court violates the provisions of the Convention on Human Rights, as the panel hearing the case was composed of an understudy judge.
