Poland – On 24 November, the Polish Constitutional Tribunal struck again. This time, its target is not the European Court of Justice, on whose jurisdiction it set limits with its rulings of 14 July and 7 October, but the European Court of Human Rights. Ruling on a case that was brought before it in July by the Polish justice minister, who is at the same time Attorney General, the country’s Constitutional Tribunal stated on 24 November that an article of the European Convention on Human Rights is incompatible with the Polish Constitution insofar as the requirement of an “independent and impartial tribunal established by law” is applied by the European Court of Human Rights to the Polish Constitutional Tribunal itself.
What the Polish Constitutional Tribunal’s ruling says
As in the case of the recent rulings concerning the ECJ, it is important to stress that, contrary to what some media outlets, including Polish ones, are claiming, the Polish Constitutional Tribunal is not calling into question the European Convention on Human Rights itself, but only a certain recent interpretation of that convention by the judges sitting in Strasbourg. The Convention clause in question is the first sentence of the first paragraph of Article 6 (“Right to a fair trial”), which states that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
In principle, this right to an independent and impartial tribunal should not concern proceedings before national constitutional courts, which rule on the validity of laws in the light of the constitution and do not give judgments in civil or criminal cases. In Polish law, the Polish Constitutional Tribunal is not even considered to be part of the judicial system, and it is clear that many constitutional courts could not be considered independent and impartial,
starting with the French Constitutional Council, given that its members are appointed by the President of the Republic and the presidents of the two chambers of Parliament, and are very often political allies of those who appoint them, lacking any legal training.
In Poland, the members of the Constitutional Tribunal must be persons with recognised legal competence, each appointed by a simple majority of the Sejm for a non-renewable term of nine years.
The reasons why the case was referred to the Polish Constitutional Tribunal
Nevertheless, in its judgment of 7 May, 2021, concerning the case of Xero Flor w Polsce against Poland, the ECHR ruled in favour of the plaintiff, whose appeal on constitutionality had been rejected by the Polish Constitutional Tribunal, on the grounds that, according to the ECHR judges, the appointment of three of the fifteen judges sitting on the Polish constitutional court had been carried out illegally and that it could not therefore be considered “an independent and impartial tribunal established by law”.
The ECHR’s reasoning
This is not the first time that the ECHR has found Article 6 of the European Convention on Human Rights to be applicable to the constitutional court of a signatory state. This has happened in instances when a constitutional court’s decision has a direct impact on a judgment delivered by the judiciary in a specific case. In such a situation, the ECHR is increasingly taking the view that the constitutional court in question is acting as a court in a criminal or civil case, and that the requirement of an “independent and impartial tribunal established by law” then extends to that constitutional court.
In the Polish case, the case concerns a limited liability company, Xero Flor w Polsce, producing lawn rollers. This company was entitled to compensation for the nuisance caused by wild boar and deer. However, a Polish government decree reduced the amount of compensation paid, and the complainant considers that, in the light of the Polish constitution, this required a law. As the courts of first and second instance did not put the question to the Constitutional Tribunal, the company itself submitted the question, but the Tribunal, in a three-judge hearing, rejected the case. However, one of the three constitutional judges concerned is among those whose legitimacy has been challenged since December 2015 by the Polish opposition and by some international bodies (mainly the European Parliament, the European Commission and the ECJ, and now also by the ECHR). As a result, the ECHR found that Xero Flor had not had access to an “independent and impartial tribunal established by law”.
Why the legitimacy of the Polish Constitutional Tribunal is regularly questioned
The dispute over the appointment of three of the fifteen judges of the Polish Constitutional Tribunal is in fact an internal Polish dispute dating back to the days of the last coalition government of Donald Tusk’s liberal Civic Platform (PO) party and the agrarian PSL party. While new elections were due in October 2015, which the PO-PSL coalition expected to lose, in May 2015 it passed a law allowing the incumbent parliament to pre-appoint Constitutional Court judges to replace judges whose terms were due to expire in November and December 2015, after the parliamentary elections. After the elections won by PiS, President Duda, himself from PiS, refused to swear in those judges – which is a precondition for them to take office – and the new Sejm cancelled the appointments and replaced them with its own.
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For more information on this conflict,
see the article “Polish Constitutional Court crisis”
published by the Visegrád Post in April 2016.
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What the Polish Constitutional Tribunal’s reply says
As in the ECJ case mentioned above, the Polish Constitutional Tribunal has now confirmed, as requested by the Polish minister of justice, that the European Court of Human Rights had gone beyond its jurisdiction in addressing the legality and legitimacy of the manner in which the current members of the Constitutional Tribunal were appointed, and Poland is therefore not obliged to pay the compensation obtained in Strasbourg by the plaintiff.
Doubts about the functioning of the ECHR
What adds spice to this conflict is the fact that the ECHR itself is accused of not respecting the requirement of independence and impartiality of its own judges, which casts a shadow over its surprising May ruling against Poland. The Committee of Ministers of the Council of Europe has itself acknowledged the validity of accusations of
conflicts of interest and links between 22 of the last 100 judges appointed to the ECHR and seven foundations and NGOs involved in cases tried by those same judges, with George Soros’ Open Society being particularly well represented on the ECHR.
In these circumstances, it is difficult for Poland to accept that the Strasbourg court could rule on the validity of the appointments made to its Constitutional Tribunal. As several leaders of the parliamentary majority now in power in Warsaw have pointed out, this would be to accept a de facto surrender of Poland’s sovereignty to unelected foreign judges.
