Position taken by the Ombudsman [Rzecznik Praw Obywatelskich: RPO] at hearing before the Constitutional Tribunal in case K 6/21

24 November 2021

The RPO’s representatives at the hearing:

• Dr. hab.Maciej Taborowski, Deputy Ombudsman,
• Mr. Mirosław Wróblewski, Director of the Department of Constitutional, International and European Law  at the Office of the Ombudsman, and 
• Dr. Paweł Filipek, Chief Specialist in the Department of Constitutional, International and European Law  at the Ombudsman’s Office.

Outline:

I. The RPO’s position

II. Inadmissibility [inappropriateness of] for the Constitutional Tribunal [CT] to  issue a ruling

III. Overall assessment of the merits of application initiated by the present proceedings

IV. The CT as a judicial body (points 1 and 2 of the motion of the Prosecutor General [PG])

V. Assessment of the lawfulness of the process of electing judges of the CT (point 3 of the application of the PG)

VI. Iimplications of the CT’s ruling, if it were to uphold the PG’s motion

I. The RPO’s position

1. The RPO requests that the proceedings in this case be discontinued on the grounds that they are inadmissible. The originating motion concerns the application of the law and not the hierarchical incompatibility of legal norms. The subject of the application is in fact a review of the judgment of the European Court of Human Rights of 7 May of this year in the specific case of Xero Flor v Poland, in respect of which the Constitutional Tribunal has no jurisdiction.

2. Should, however, the present proceedings not be discontinued, the Ombudsman submits that Article 6 §1, first sentence, of the European Convention on Human Rights (ECHR), as indicated by the Prosecutor General, is not inconsistent with the Polish Constitution, and in particular with the constitutional standards invoked by the petitioner.

II. Inadmissibility [inappropriateness for] of the CT to issue a ruling

3. The ECtHR judgment in the Xero Flor case became final on 7 August this year, in accordance with Article 44, § 2, ECHR. The Polish Government did not file a request, under Article 43 ECHR, to refer the case to the Grand Chamber. Pursuant to Article 46, § 1, ECHR in conjunction with Article 9 of the Constitution, Poland is obliged to comply with a final judgment of the European Court of Human Rights. Poland did not make use of the available possibility, thus tacitly consenting to the Chamber’s judgment becoming final. In such circumstances, bringing the case concerning the judgment of Xero Flor to the national constitutional tribunal, with respect to which, incidentally, the judgment pertains, is an attempt to circumvent international obligations binding upon the State and remains in contradiction with the requirement to observe these obligations expressed in Article 9 of the Constitution. Thus, the PG’s application is in fact aimed at circumventing the procedural rules of the Convention as well as the instrumental use of the Constitutional Tribunal in contravention of the Constitution and international law.

4. The formula adopted by PG of a motion concerning the scope and interpretation aimed at recognising Article 6 of the Convention unconstitutional is an illusory construction – under the guise of initiating control over the constitutionality of the law, with the aim of eliminating a specific ECtHR judgement from legal proceedings in Poland.

5. However, in the light of the Constitution, the Constitutional Tribunal does not have the competence to review a judgment of the ECtHR, and cannot grant this competence to itself. Why?

6.  In accordance with the case-law of the Constitutional Tribunal, the Tribunal may review a legal norm, including that contained in an international agreement, if it has been created through common, consistent and repeated judicial practice. This follows from the well-established case-law of the Constitutional Tribunal in this respect, which the applicant himself cites. However, the Xero Flor judgment is a singular judgment. No other such judgment has been delivered by the ECtHR. How, then, can one speak of a repeated and consistent judicial practice? Therefore, the CT cannot control such a norm, because it does not exist.

7.  There have indeed been instances where the Constitutional Tribunal has reviewed a legal norm deemed to have been created by a single resolution of the Supreme Court (e.g. in case U 2/20, but also earlier in case K 10/08 concerning Article 80 § 2b of the Law on the Common Court System to the extent that the notion of a manifestly unfounded motion to hold a judge criminally liable includes a motion to hold a judge criminally liable who, when adjudicating criminal cases under the Constitution of the People’s Republic of Poland, applied retroactive penal provisions of statutory rank, where the Constitutional Tribunal assessed the statutory provision in the sense in which it was given to it by a Supreme Court resolution having the force of a principle of law). It should be stressed, however, that in accordance with Article 188 points 1 and 3 of the Constitution, the Constitutional Tribunal adjudicates on the compliance of statutes and international agreements with the Constitution, as well as on the compliance of legal regulations issued by central organs of the Polish State. As such, the European Court of Human Rights is not a central organ of the Polish State. It is an international body. Therefore, the CT does not have the competence to control acts issued by this Court. The labelling of the Xero Flor judgment by PG as a “normative novelty” testifies that the PG places under the scrutiny of the Constitutional Tribunal an act of an international body as if it were issued by a body of the Polish State. There is no basis for this in the Constitution.

8. The PG’s endeavours themselves testify the internal incoherence of the PG’s motion, as he could not decide as to the subject of control – writing once about a constant and repeatable practice, and then about a normative novelty. This imposes the necessity to discontinue proceedings also on account of the PG’s failure to fulfil the basic obligation of an applicant in proceedings before the Constitutional Tribunal. Article 47(1)(4) of the Act on the organisation and procedure of proceedings before the Constitutional Tribunal requires that the application contain a specification of the questioned normative act or its part. Whereas the petitum seemingly meets this condition, it is the justification of the application that indicates different subjects of control. In principle, the proceedings before the Constitutional Tribunal should stop at this point and the proceedings should be discontinued.

9. The RPO further notes that PG has presented a very wide range of standards in his submission – and has attempted to justify non-compliance only with some of them. As regards the standards of control in which justification is lacking, the allegation of unconstitutionality has not been substantiated, whereupon the obligatory premise of the motion set forth in Article 47 par. 2 sec. 4 of the Act on the Constitutional Tribunal has not been met, entailing dismissal of the proceedings in this respect. The Sejm also indicated this result in its written position (points 7-8).

10.  It should also be noted that the PG incorrectly identifies dissenting opinions submitted by members of the adjudicating formations of the Constitutional Tribunal – it did so, for example, with regard to the dissenting opinion of M. Muszyński in the K 1/20 judgment, qualifying it as a judicial standpoint of the entire Constitutional Tribunal (p. 13). It is also worth drawing attention to the selectivity of quotations cited by PG. In the RPO’s opinion, it would be more pertinent to cite the judgment of the Constitutional Tribunal of 3 July 2019 in the case SK 14/18, delivered with the participation of Prof. M. Muszyński, in which the Tribunal ruled “on the obvious obligation of all authorities (including the judicature) to respect international human rights law binding on the Republic of Poland”, approving 100% of the European Convention on Human Rights and its binding force with respect to Poland.

11. The PG also states in his application that the ECtHR cannot interfere in the structure of the Constitutional Tribunal due to the detailed constitutional regulation contained in the Polish basic law. Here, one should pay attention to a radical change of view presented until now by the same PG, which consisted in allowing a very broad discretion of the ordinary legislator in regulating the organisation and proceedings before the CT in a series of proceedings concerning legislative changes concerning the CT in 2015-2016. For example, in the PG’s position of February 2016 in case K 47/15, the PG stated that “[t]he amending legislation introduced a number of significant changes in the provisions covering the proceedings before the Constitutional Tribunal, such changes – as a rule – are covered by the legislature’s discretion, and also remain in compliance with Article 197 of the Constitution, which authorises the ordinary legislator to define this procedure by law” (s. 91).

One cannot describe such an attitude otherwise than action which is not based on a thorough constitutional analysis, but is simply the construction of ad hoc theses to fit a given procedure.

12. Also, the Constitutional Tribunal has no legal basis to pronounce on the scope of jurisdiction of international courts, and a possible judgment upholding the applicant’s claims will remain ineffective. In line with general principles of international law, a State may not invoke arguments based on domestic law to justify or excuse its failure to comply with an international obligation. This principle is also confirmed by Article 27 of the Vienna Convention on the Law of Treaties, to which Poland is a Party. This principle does not contradict the principle of supremacy of the Constitution in the Polish legal system, expressed in Article 8, §1 of the Constitution, which also encompasses international law.

13. The Polish legal order – unlike regulations contained in the constitutions of other states (e.g. in the Russian Federation) – does not provide for review of judgments of international courts by the Constitutional Tribunal. This was a conscious decision of the authors of the Constitution of the Republic of Poland, reflected in the content of Article 188 of the Basic Law [the Constitution].

14. As a side note, it is worth recalling the ECtHR judgment in the Yukos case. Mikhail Khodorkovsky publicly expressed views contrary to those of President Vladimir Putin. Khodorkovsky was arrested in 2003 and subsequently sentenced to imprisonment for alleged tax offences relating to the management of Yukos. The ECtHR found that Russia had violated the applicant’s right to property and Article 6 of the Convention. Russia did not implement the Court’s decision, and its Constitutional Court found that it was contrary to the Constitution of the Russian Federation (judgment dated 19.01.2017: http://doc.ksrf.ru/decision/KSRFDecision258613.pdf).

15. It should also be recalled that the CT has already taken a position on the Xero Flor judgment in judgments handed down in three-judge formations, relating to the dismissal of the RPO’s motions for exclusion from the adjudicating bench of persons directly or indirectly affected by the judgment in cases P 7/20 (decision of 15 June 2021) and K 3/21 (decision of 31 August 2021 – in this case after the Xero Flor judgment had already become final). In these rulings, the Xero Flor judgment was described as a sententia non existens – a non-existent judgment. Hence, in light of these decisions of the CT, the Xero Flor judgment does not exist. Thus:

(a) the ECtHR judgment cannot form a legal norm which the CT can now control – because only an existing norm can be controlled, whereas the CT has no competence to control acts of universally binding law which have not acquired legal force or which have lost their legal force – it should be recalled that the legislator, by a law of 2016, removed – from the Law on the CT – the provision which had allowed this, and the Tribunal – on the basis of a request by the RPO, who questioned this removal – stated in its judgment of K 1/17 the compatibility of such a change with the Constitution;

(b) it is not possible to speak of a constant and repeated judicial practice, since even this single judgment of the ECtHR has already been declared non-existent by the Constitutional Tribunal. Such a judicial practice, in the light of the positions taken by the CT, does not exist, and therefore the object of the CT’s control does not exist at present.

16. The RPO points out that the CT may change the legal view expressed in its earlier rulings, but it should be noted that, firstly, the legal system does not provide for a procedure to review an earlier CT ruling, and secondly, allowing review of the Convention in the context of constant and repeated judicial practice, it being possible to review the Xero Flor judgment as a normative novelty – which is inadmissible due to the non-existence of the object of review – may lead to doubts that the proceedings in cases P 7/20 and K 3/21 could have been conducted with the participation of persons not authorised to adjudicate. This would mean that the Tribunal, in its decisions refusing to exclude judges, could have incorrectly legally classified the Xero Flor judgment as non-existent. Thus, if it is now accepted that the subject of the review exists, i.e. the Xero Flor judgment is not a sententia non existens, the legal basis of the decisions made in the above-mentioned cases may be called into question.

17. In accordance with Article 32, §1, ECHR, the European Court of Human Rights has jurisdiction to hear all cases concerning the interpretation and application of the Convention. The judgment of Xero Flor therefore falls within the scope of Article 32, § 1, ECHR, as the Court has interpreted Article 6, §1, ECHR within its jurisdiction.

18. To conclude this section, it should be stressed that the binding force of the Xero Flor judgment derives from Article 46, §1, ECHR, which is not at issue in the present case. Irrespective of the CT judgment, Poland will remain obliged to ensure its implementation, in accordance with the international obligations it has undertaken.

III. Overall assessment of the merits of the application initiating the present proceedings

19. The application is incoherent, full of contradictions and bare assertions, based neither on factual circumstances nor on legal analysis. It is full of errors: petitio principi – it states theses but does not substantiate them, and non sequitur errors – the conclusions do not follow from the circumstances it indicates.

20.  First and foremost, however, the whole submission of the PG is based on a fundamental misunderstanding: that the interpretation of the Convention, as understood by the Strasbourg Court, brings about changes in the political system in Poland: it transforms the Constitutional Tribunal into some other organ, changes its system and nature, changes the competences of the Constitutional Tribunal, transfers the jurisdiction of the Constitutional Tribunal to the courts or vice versa, changes the model of selection of judges of the Constitutional Tribunal, violates the right of the Sejm to select these judges, or brings about changes in the staffing of the Constitutional Tribunal.

21. Such claims should be unequivocally rejected. They have no support either in the text of the Convention or in the jurisprudential activity of the ECtHR and the nature of the effects of its judgments.

22. The ECtHR has not and does not change the system of the Republic of Poland. It adjudicates at the level of international law on the basis of autonomous concepts of the Convention. It does not modify the provisions of the Constitution, nor does it change their wording or understanding. It does not transfer competence between the branches of judicial power. It does not deprive any organ, including the Sejm, of its competence.

23 The PG presented a non-existent picture. He attributed to the Strasbourg Court the power to change the state system. Meanwhile, the ECtHR in the Xero Flor judgment did not change or even assess the content of Polish legislation, in particular the constitutional provisions regulating the system and functioning of the Constitutional Tribunal. Instead, it assessed whether the domestic rules for appointing judges to the Constitutional Tribunal had been violated – and whether the Convention had therefore been breached. As the body ensuring its observance, it was fully entitled to do so. Moreover, in making this assessment, it relied primarily on the findings of national organs, first and foremost the Constitutional Tribunal itself. 

24 In this way, not only does the ECtHR not violate the Polish Constitution, but on the contrary, it helps to protect it. It also does not infringe upon the structure of the Constitutional Tribunal – it supports it in transnational judicial dialogue, ensuring that it functions in accordance with the highest judicial standards.

25. By contrast, in claiming exemption of the CT from the requirements of a fair trial within the meaning of the Convention, the applicant invokes the Constitution. However, this would be justified only if it expressly forbade that the Constitutional Tribunal be independent, impartial and established in accordance with the law. Not only does the Polish Basic Law [the  Constitution] not prohibit this, but the indicated requirements have clear support therein.

IV. The Constitutional Tribunal as a judicial body (points 1 and 2 of the motion of the PG)

26. The petitioner alleges that the inclusion by the ECtHR of the Constitutional Tribunal as a “court” within the meaning of Article 6 of the European Convention violates a number of provisions of the Polish Basic Law. The RPO does not share his reasoning.

As a matter of fact, points 1 and 2 of the PG motion should be considered together, because the subject matter of point 2 (the inclusion of the Constitutional Tribunal in the requirements of independence, impartiality and establishment by law) is a natural consequence of the subject matter of point 1 (the inclusion of the Constitutional Tribunal in the notion of a “court” within the meaning of Article 6, § 1, of the ECHR).

27. First of all, it needs to be emphasised that the body, in particular, which has the task of upholding the Constitution of the Republic of Poland – should uphold the constitutional right of the individual to a fair trial and should meet the requirements of independence, impartiality and compliance with the law. Therefore, it is incomprehensible to demand that proceedings before the Polish Constitutional Tribunal should not have to meet the requirements of a fair trial. Differences in the jurisdictional and systemic nature of courts and the Constitutional Tribunal do not justify such far-reaching conclusions and opposing the Constitutional Tribunal to courts.

28. In the opinion of the RPO, the Constitutional Tribunal may be regarded as a “court” in the material sense, as it fulfils the criteria set for courts by the Constitution of the Republic of Poland and international acts. Both categories of judicial authorities are meant to be independent and their judges impartial. They have in common a similar procedure, initiation of proceedings upon application and not ex officio, as well as forms of action: judgments and decisions. They are also linked by the fact that the persons legally sitting on the Constitutional Tribunal are referred to as judges and not, for example, as members of the Tribunal.

29. Both courts and the Constitutional Tribunal should be subject to the same requirements of a fair trial. Since, in the light of the Constitution, the Constitutional Tribunal exercises judicial authority, it should fulfil the requirements immanently connected with the adjudicatory function and the exercise of the essence of judicial authority – adjudication, and in particular should maintain its independence and impartiality, as well as be established by law. 

30. Moreover, the CT itself has already recognised that the principles arising from the right to a court and to a fair trial apply to proceedings before it. In its ruling in case P 21/02, the plenary Tribunal stated that proceedings before it “are subordinated” to the principles arising from Article 45, §1, of the Constitution and Article 6, §1, ECHR (point II.5). A departure from this legal position would therefore require a ruling by the plenary Court.

31. It should first of all be stressed, however, that for the purposes of Article 6, §1, of the ECHR, the concept of “court” – like the requirement of “established by law” –  have an autonomous meaning, i.e. they are detached from the meaning that the national legal order may give to these terms. An autonomous understanding of the Convention terms helps to ensure an equivalent level of protection in the States Parties to the Convention, and prevents the risk that individual States will exclude part of the protection afforded to the individual by giving a different (‘national’) meaning to a particular term. 

32. For this reason, the recognition of an authority as a “court” under national law, or conversely the refusal to recognise it as a “court”, is not conclusive under the Convention, although it is taken into account by the ECtHR.

33. Morever, to deny the status of a ‘court’ would deprive the CT of the solemnity which, according to the Convention, is due to judicial bodies. According to Article 10, §1, ECHR, everyone has the right to freedom of expression. However, this freedom has its limits under the Convention. Article 10, §2, of the Convention provides that the exercise of that freedom may be subject to limitations in order to maintain the authority and impartiality of the judiciary. Denying the CT the status of a “court” will therefore mean, in consequence, that the Tribunal will also be denied protection on account of the authority of judicial power it exercises. The conclusion of PG leads to such unexpected consequences.

34. However, in the case-law of the ECtHR, the concept of a ‘court’ is defined by the exercise of the judicial function, i.e. adjudication of cases falling within the jurisdiction of an authority on the basis of legal rules and following proceedings in the manner prescribed by law. Its decisions are legally binding and may not be deprived of their effectiveness, modified or overturned by extrajudicial authorities to the detriment of a party to the proceedings. Equally necessary elements of the concept of a ‘court’ in the light of Article 6 ECHR – are the requirements of independence, impartiality and lawful authorisation (‘established by law’).

35. The concept of “court” in Strasbourg case-law, essentially unchanged to this day, had already crystallised in the 1980s of the 20th century, thus long before Poland’s bound itself to the Convention. This concept of “court”, which the ECtHR applied in the Xero Flor case (see paragraph 194 of the judgment), was known to the Polish authorities before and when binding themselves to the Convention. The failure to make a reservation at the time of ratification means that the national authorities did not perceive any incompatibility between national law and Convention standards.

36. Meanwhile, PG’s motion seeks the very effect that would follow from making a reservation to the ECHR, that is, to exclude or modify the legal effect of Article 6, §1, of the Convention. It thus seeks to achieve an effect prohibited by international law – a unilateral limitation of the scope of a State’s obligations, already after – by way of ratification – that the State had given its final consent to be bound by an international agreement.

37. In the light of the foregoing, it is not possible to share the view that a constitutional court is not a “court” within the meaning of Article 6, §1, of the Convention and therefore does not have to satisfy the requirements for being lawfully established as specified in the Convention and elucidated in the case-law of the ECtHR (see, in particular, Ástráðsson v. Iceland). 

38.  Moreover, in a number of cases, the ECtHR has indicated that it may analyse proceedings before a constitutional court in the light of the requirements of Article 6 ECHR, in particular where the outcome of the proceedings is directly or indirectly decisive of the applicant’s rights or obligations. 

39.  Such conclusions also follow from the case-law of the ECtHR in cases concerning Poland. Starting with the decision of 9 October 2003 in Szott-Medyńska and Others v. Poland, the ECtHR has held that a constitutional complaint may be an effective remedy within the meaning of the Convention and that an applicant may be required to bring it before the Constitutional Tribunal before presenting the complaint to the Strasbourg Court.

40. The Republic of Poland explicitly recognised that this procedure before the ECtHR fell within the scope of the Convention requirements. In the Szott-Medyńska case, the Polish Government argued that the applicants had not exhausted the available domestic remedies by not bringing a constitutional complaint, and the ECtHR accepted this claim. The Republic of Poland therefore considered that the Constitutional Tribunal must satisfy the requirements of effective judicial protection if proceedings before it are to qualify as a judicial remedy capable of redressing the situation of the complainant. This practice is continued by the Polish Government, as confirmed by the Minister of Foreign Affairs in his [written] statement (pp. 4-5).

41. In the light of the above, it must be stressed that the situation in which – as in the Xero Flor case – the ECtHR assesses the proceedings before the constitutional court of the State Party in the light of the requirements of Article 6, §1, of the Convention is also not a “normative novelty”, as the applicant claims (p. 5 of the submission). Such analyses have already been undertaken by the Strasbourg Court for three decades, and to date – in addition to the Polish Constitutional Tribunal – have already concerned constitutional courts in Germany, Austria, France, Switzerland, the Czech Republic, Spain and Croatia. Aware of the different nature, status, special role and jurisdiction of constitutional courts, the ECtHR points out that these reasons alone are not decisive for excluding proceedings before a constitutional court from the scope of Article 6, §1 (see Süßmann, para. 39 in fine).

42. Whether the proceedings before such a court are to be assessed in the light of the requirements of the Convention is determined by the ECtHR for the specific case before it – taking as conclusive, as in Xero Flor (see paragraph 191 of the judgment) – whether the outcome of the proceedings before the constitutional court is decisive for the rights and obligations of the applicant. This test in relation to the constitutional court was already formulated in 1993 (in Kraska v. Switzerland), and has since been applied in subsequent cases. 

43. In no State has this led to any challenge to a judgment of the ECtHR on this ground, as in the present case before the CT. The States Parties to the Convention tacitly recognised this test and adopted the ECtHR’s jurisprudential standard, clarifying Article 6 of the ECHR. In fact, firstly, it serves to fully guarantee effective protection of the rights of the individual; and secondly, the function of “determination of [his] civil rights and obligations” of a particular subject and adjudicating on the hierarchical compatibility of laws with the Constitution are not mutually exclusive – the former may depend on the latter.

V. Assessment of the lawfulness of the process of electing judges of the Constitutional Tribunal (point 3 of the PG application)

44. The applicant claims that, as interpreted by the ECtHR, Article 6, § 1, “encompasses an assessment of the lawfulness of the selection process of Constitutional Tribunal judges” – in order to determine whether it is an independent and impartial tribunal established by law. This allegation is misconceived, ignoring both the content of the Convention and the essence of the legal protection mechanism introduced by it.

45. The plea of arbitrariness put forward in the PG’s motion with regard to the Xero Flor judgment is untenable. In fact, the ECtHR has a formal and substantive legal basis for its assessment of the situation presented by the applicant, and it gave detailed reasons for its ruling.

46. First, Poland agreed, in the light of Article 19 ECHR, to entrust the European Court of Human Rights with the task of ensuring compliance with the obligations arising from the Convention. This means, in conjunction with Article 32 ECHR, conferring jurisdiction on the Court in all cases and disputes arising under the substantive provisions of the ECHR. It is undisputed that the case decided in the Xero Flor judgment falls within the said purview.

47 Secondly, the applicant’s reasoning – as already indicated – is based on an erroneous assumption that by its judgment the ECtHR shapes the system of the Constitutional Tribunal, interferes with the model of election of judges of the Constitutional Tribunal, or violates the provisions giving the Sejm the exclusive right to elect judges of the Constitutional Tribunal (p. 42). However, the Strasbourg Court in the Xero Flor judgment does not do anything of the sort.

48. The system of the Constitutional Tribunal, the model for the election of its judges and the right of the Sejm to elect them have not been negated or changed. The ECtHR did not designate any entity other than the Sejm as having the right to elect judges of the Constitutional Tribunal, nor did it assume this competence on its own behalf. In particular, it did not appoint another member of the Constitutional Tribunal in place of the person whose participation it deemed unlawful. The ECtHR ruled only that the provisions of domestic law had not been respected in the procedure for the election of three judges of the Constitutional Tribunal – without questioning the very content of these provisions.

49 Thirdly, the fact that there are no formal instruments in domestic law to assess the lawfulness of the appointment of Constitutional Tribunal judges does not preclude an international court, within the scope of its jurisdiction and on the basis of international law, from carrying out such an assessment, for the purpose of adjudicating an individual complaint pending before it. In carrying out such verification, the Court in Strasbourg does not review either national legal institutions or specific provisions of national law, including constitutional provisions. Instead, it examines – in accordance with its mandate – the fact of a violation of an individual right guaranteed by the Convention. Its assessment therefore concerns the concrete situation and the facts of the violation of the applicant’s right through the action of a national authority, here: the constitutional court.

50. Moreover, fourthly, the effects of a judgment finding a violation of the right to a court as a result of the improper composition of the bench of the Constitutional Tribunal are prima facie limited to the sphere of international law. In particular, they do not result in the removal from office of the person whose participation in the composition of the CT was found to violate the right to a lawfully established court. The ECtHR in the Xero Flor judgment did not rule on what measures the State must take to remedy the situation and prevent future violations. 

VI. Implications of a CT’s ruling, if it were to uphold the PG’s motion

51. First, the PG’s application seeks to obtain from the ECtHR, under the guise of a review of the constitutionality of Article 6 of the ECHR, a de facto judgment challenging the constitutionality of a specific ECtHR judgment rendered in an individual case, i.e. the judgment of Xero Flor against Poland. This type of procedure is inadmissible, as it aims at circumventing constitutional regulations specifying the scope of jurisdiction of the Constitutional Tribunal, contained in particular in Article 188 of the Constitution. These regulations do not provide for the jurisdiction of the Constitutional Tribunal to review judgements of international judicial bodies.

52. Second, the applicant essentially disagrees with the interpretation and application of the Convention by the ECtHR in an individual case. He ignores the fact that the Court has ruled within the sphere of competence conferred on it by Article 32 ECHR. He also ignores the purpose and object of the Convention, which is to protect individual human rights and to uphold and promote the ideals and values of a democratic society. From that perspective, the Convention is to be interpreted in such a way that the rights and freedoms enshrined therein are real and effective and not illusory.

53. By initiating the present proceedings, the applicant rejects such an interpretation of the Convention as is most suitable for attaining its object and purpose. Instead, he seeks one which would to the greatest possible extent limit the obligations previously undertaken by a State Party to the Convention.

54. Third, the Xero Flor judgment must be perceived as serving to ensure the applicant’s right to a fair trial before an independent and impartial judicial authority established in accordance with the law. Indeed, a body which does not fulfil the constitutive requirements of a court, and in particular the requirement of being established by law, will lack the legal legitimacy required in a democratic society to resolve legal disputes. This requirement is intended to ensure that the judicial system is not dependent on the discretionary decisions of the political authorities. This is what underpins public confidence in the judiciary. 

55. That said, granting the PG’s request would mean arbitrarily departing from the ECtHR’s well-established and solidly reasoned line of case-law – in the absence of convincing arguments as to why the Polish Constitutional Tribunal should not satisfy the requirements of independence and impartiality, and why its members may be elected unlawfully – and in such a situation, without having obtained legal legitimacy, to rule de facto only on the basis of political legitimacy.

56. Fourthly, granting the PG’s request will reduce the significance of the Constitutional Tribunal itself. It will marginalise the role of the constitutional complaint, since it is difficult to assume that the ECtHR will continue to regard it as a means which a party should – in certain situations – use before filing an application to Strasbourg, if the Constitutional Court ceases to constitute a guarantee of lawfulness.

57. Fifth, granting the motion would be tantamount to undermining the validity of a final and binding judgment of the ECtHR, contrary to the Polish Constitution and our country’s international obligations. In fact, it would undermine the entire ECHR system, which guarantees genuine and effective protection of human rights on the European continent. Symbolically, it would do so on the 30th anniversary of Poland’s accession to the Council of Europe, whose major achievement is the European Convention.

58. Sixth, granting the motion would also mean weakening the protection of the rights and freedoms of the individual not only in terms of the right to a court, but of all the rights and freedoms guaranteed by the ECHR, as it is the national judicial authorities that are primarily called upon to safeguard them. After the ruling of the Constitutional Tribunal, should it uphold the application of the PG, this protection may turn out to be even more illusory.

59. Seventh, the present case must be seen in the light of similar cases, whether already decided by the CT, such as Cases P 7/20 and K 3/21 – concerning the Court of Justice of the EU, or pending, such as Cases K 5/21, K 7/21 and K 8/21 – in which the case-law of both European Courts is challenged. What they have in common is the instrumentalisation of the CT and the mechanism of control of constitutionality of the law to resolve apparent, non-existent constitutional conflicts. In this way, the national authorities attempt to exempt their actions – interfering in the independence of the judiciary – from the constraints imposed by the ECHR and the law of the European Union. In this way, they reject the voluntarily accepted international obligations by the Republic of Poland, and in fact also the corresponding standards of the Polish Constitution.

60. In its interlocutory decisions of 15 June and 31 August this year on the RPO’s motions to exclude members of the bench, the CT commented on the Xero Flor judgment – stating that it was given ultra vires and that it does not exist. According to the RPO, there was here a review of the ECHR judgment (a) made without a legal basis; (b) without taking into account the position of the parties, without a hearing and without a debate on the issue – which predetermines these statements of the CT to be arbitrary. Our hope is that today’s hearing will allow the CT to revise this position, which is totally mistaken.

61. In the light of the above circumstances and observations, the RPO submits as set out in the introduction.