A case K 7/21 concerns Prosecutor General Zbigniew Ziobro‘s second motion to the Constitutional Tribunal to examine whether the interpretation of Article 6(1) of the European Convention on Human Rights is compatible with the Polish Constitution.

The contested Convention’s passage reads: ‘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 when deciding on his civil rights and obligations or on the merits of any criminal charge against him’.

The applicant asks whether it is compatible with the Polish Constitution that it arises from this passage that:

• the European Court of Human Rights is creating a right for a judge to perform an administrative function in the organizational structure of the judiciary in Poland; 
• in the meaning of what a ‘court established by law’ is, the ECtHR does not take into account the provisions of the Polish Constitution, statutes, and judgments of the Constitutional Tribunal;
• national or international courts assess statutes regarding the structure of the judiciary, the jurisdiction of the courts, and the National Council of the Judiciary as to their conformity with the Polish Constitution and the Convention.

Reaction to the ECtHR judgment

A motion formulated in this way is a direct reaction to the judgment of the ECtHR of 8 November in Dolińska-Ficek and Ozimek v Poland. In that judgment, the ECtHR ruled that the Chamber of Extraordinary Control and Public Affairs, which PiS had added to the Supreme Court in 2018, breached the right to an independent and impartial court established by law, protected by Article 6(1) of the Convention. It awarded the two applicants 15,000 euros each, payable after the judgment becomes final.

Maria Ejchart-Dubois and Sylwia Gregorczyk-Abram from the Justice Defence Committee (KOS) represented Judges Monika Dolińska-Ficek from the District Court in Mysłowice and Artur Ozimek from the Regional Court in Lublin.

The Court ruled that the Polish government must take fast action to address the lack of independence of the National Council of the Judiciary.

The ECtHR used a three-stage test of an independent court established by law when assessing the Chamber. The Court had developed this test on the basis of a case involving judges from Iceland. The ECtHR delivered its judgment in Guðmundur Andri Ástráðsson v Iceland (Application no. 26374/18) on 1 December 2020.

The ECtHR emphasized that the crux of the problem with the Chamber is that the new National Council of the Judiciary, which is not sufficiently independent of the executive and the legislature, took part in staffing it after the amendment of the law in 2017.

It pointed out that the change in the method in which the NCJ was elected should be considered in the broader context of coordinated changes in the judiciary in Poland, which have raised the concerns of numerous international organizations and bodies, such as the Venice Commission of the Council of Europe and the European Commission, and have become the subject of several proceedings before the Court of Justice of the European Union.

The ECtHR also referred to the resolution of the three legal chambers of the Supreme Court on 23 January 2020, when it held that the NCJ was not independent. It ruled that it did not agree with the ‘arbitrary’ assessment of the Polish Constitutional Tribunal that this resolution was in conflict with the Constitution.

In addition, the ECtHR ruled in July that, when adjudicating on the disciplinary case of Attorney-at-Law Joanna Reczkowicz, the Disciplinary Chamber of the Supreme Court breached her right to a trial, which is protected by Article 6(1) of the Convention. As in the Dolińska-Ficek and Ozimek judgment, the ECtHR held that the new NCJ was responsible for this in the procedure of appointing people to the Disciplinary Chamber.

The motion seeks to overturn some of the ECtHR judgments

The ECtHR has received a total of 57 complaints from Poland with regard to various elements of the ‘reform of the judiciary’. In February, the ECtHR announced that it was examining them in an expedited procedure. It issued four judgments from May to November, all of which were unfavourable for the Polish government.

Just as Prime Minister Mateusz Morawiecki’s application to the Constitutional Tribunal on the interpretation of the provisions of the Treaty on European Union and the Constitutional Tribunal’s judgment in the matter on 7 October, Ziobro’s motion on the European Convention on Human Rights intends to reject some of the ECtHR’s judgments which the ruling party does not like – including the judgments in Dolińska-Ficek and Ozimek and Reczkowicz.

And just like the Prime Minister’s motion and the Constitutional Tribunal’s judgment of 7 October, Ziobro’s motion in case K 7/21 contains criticism of the ECtHR’s alleged acts, which do not exist in the case law of the ECtHR.

This is about the request to examine whether the ECtHR is creating ‘the right of a judge to hold an administrative position within the organizational structure of the judiciary in Poland’.

Poland has no constitutional personal right of a judge ‘to hold a specific official position in a specific court’, which the Ombudsman, among others, has confirmed.

The Constitutional Tribunal headed by Julia Przyłębska ruled twice that the right of a judge to decide or at least jointly decide on the place of adjudication does not arise from the provisions of the Constitution and statutes (case ref. SK 30/14).

The ruling party cites the lack of right of judges to occupy specific positions within the structure of the judiciary when judges are seconded to the Ministry of Justice, judges are transferred to other court divisions – which is a form of repression of judges who criticize the government’s policy on the rule of law – or further changes are announced in the structure of the judiciary.

But attempts to create such a right cannot be found in the ECtHR rulings.

On 29 June, the ECtHR ruled that the inability of judges Alina Broda and Mariusz Bojara to appeal to a court against the decision of the Minister of Justice removing them from their positions as vice-presidents of the Regional Court in Kielce breaches their right to a trial, which is protected by Article 6(1) of the Convention. The judgment became final on 29 September.

In paragraph 95 of this judgment, the ECtHR emphasized that ‘Article 6(1) of the Convention does not guarantee that civil “rights and obligations” have a specific substantive content in the legal order of the Contracting States: The Court cannot create a substantive right which has no legal grounds in the given State through an interpretation of Article 6(1).’

However, in its case-law, the ECtHR has acknowledged for years that the correctness of the appointment of a judge is an element that is encompassed by the requirements of Article 6(1) of the Convention.

In raising the second allegation that ‘the understanding of what a “court established by law” is does not take into account the provisions of the Polish Constitution, statutes and judgments of the Constitutional Tribunal”, the prosecutor general raises the criticism that the ECtHR, the CJEU and the national courts do not refer, among other things, to the statutes passed by PiS and the judgments of the Constitutional Tribunal, which is subordinated to the politicians.

Indeed, in the ECtHR’s judgment in Dolińska-Ficek and Ozimek, the Court referred to the judgments of the CJEU and the legitimate Supreme Court from 2017–2021, stating that the Constitutional Tribunal had presented a conflicting interpretation. The ECtHR also criticized the judgment of the Constitutional Tribunal regarding the new NCJ (paragraphs 290–295 of the judgment), as well as the CT’s judgment acknowledging that the Supreme Court overstepped its powers when issuing the resolution of 23 January 2020 (paragraph 316). It assessed the Constitutional Tribunal’s arguments as being ‘arbitrary’ (paragraph 317).

The ECtHR also referred to its own case law: the judgment of 7 May in Xero Flor v Poland, in which the Court ruled that the Constitutional Tribunal with ‘stand-ins’ in its membership breached the right of the applicants that is protected by Article 6(1).

The response to this judgment was that the Prosecutor General applied to the Constitutional Tribunal in case K 6/21 to examine whether the interpretation of Article 6(1) of the Convention, in which the Polish Constitutional Tribunal is a court, is in line with the Constitution. On 24 November 2021, the Constitutional Tribunal ruled that it was not.

Russian variant?

The motions of the Disciplinary Chamber and Prime Minister Morawiecki to the Constitutional Tribunal regarding the provisions of the Treaty on EU, and in fact the rulings of the Court of Justice of the EU, and now the two motions of the Prosecutor General, which apply to the interpretation of the European Convention on Human Rights, and in fact the rulings of the ECtHR, are currently dangerous precedents. They may soon be the norm.

This can lead to the situation that every time a national, EU or international court refers to the provisions of an international agreement and passes a sentence which is not to the liking of the ruling party, the Constitutional Tribunal, which is subordinated to politicians, will rule that, in this respect, these provisions are inconsistent with the Constitution.

While formally remaining within the system of EU law or the European Convention on Human Rights, Poland will treat them selectively. This will have an effect mainly domestically, on Polish judges who may be penalized on disciplinary charges for failing to comply with rulings of the Constitutional Tribunal.

As well as on Polish citizens, who will not be sure whether, if they file a complaint with the ECtHR against Poland, Poland will recognize a judgment that is unfavorable to the authorities at all. And this is now a scenario taken directly from Russia.

Translated by Roman Wojtasz

The article is adapted from the text published in Polish at OKO.press on 15 November 2021.