Statement by retired judges of the Constitutional Tribunal on the Constitutional Tribunal judgment in case K 7/21

March 13, 2022

The retired judges of the Constitutional Tribunal feel morally obliged to publicly express their strongly critical position towards the issuance of the judgment of the Constitutional Tribunal on 10.03.2022 in case K 7/21.

In this judgment, the  Tribunal ruled that the first sentence of Article 6(1) of the European Convention on Human Rights (ECHR) is incompatible with the Constitution of the Republic of Poland to the extent that it formed the basis for several judgments against Poland in 2021-2022 by the European Court of Human Rights (ECHR).

These are judgments stating that Poland has violated the right to a fair trial before an independent and impartial court established by law as a result of the introduction and application of various provisions concerning the system of the judiciary.

According to the Constitutional Tribunal, the effect of its judgment is to remove from the Polish legal system the norms it has itself interpreted from Article 6 of the ECHR, as well as the ECtHR judgments indicated.

Retired judges of the Constitutional Tribunal state that the judgment in question is another scandalous example of jurisprudence violating the Constitution. It concerns, inter alia, the obligation to observe international law binding upon the Republic of Poland (Article 9 of the Constitution of the Republic of Poland).

Challenging Article 6 of the ECHR for the second time in a short period of time (previously in the judgment of 24.11.2021, K 6/21) is a drastic jurisprudential excess. Numerous judgments in recent years, in which the incompatibility with the Constitution of judgments of the CJEU and the ECHR was ruled, not only go beyond the jurisdiction of the Constitutional Tribunal but testify to the intention to eliminate external control of legislation that violates the constitutional right to a court (Article 45) and the principles of independence of courts (Article 173) and independence of judges (Article 178).

This deepens the crisis of the constitutional state, including in particular the principle of a democratic state of law and the principle of separation of powers, and causes growing isolation of Poland in Europe.

The retired judges of the Constitutional Tribunal also draw attention to further circumstances surrounding the K 7/21 judgment:

Firstly, the judgment was issued several days after the beginning of the aggression of the Russian Federation against Ukraine. It is therefore worth recalling in this context the embarrassing fact that Poland became the second country, after Russia, in which the binding force of ECHR provisions and ECtHR judgments was questioned. What is more, this happened exactly on the same day that Russia announced its intention to withdraw from the Council of Europe and thus from the ECHR.

Secondly, the judgment was handed down at a time of protracted, acute conflict with the European Union over violations of the rule of law in Poland. Since fundamental rights, guaranteed by the ECHR, shall constitute general principles of the Union law (Article 6(3) TEU), the judgment is yet another example of the process of first negating and then destroying the foundations of the European Union.

Thirdly, the judgment was handed down in a formation of five judges, and the rapporteur was a person elected to the Constitutional Tribunal for the occupied judicial seats, and therefore not a judge, as is clear from the judgments directly concerning this person, i.e. the judgment of the  Constitutional Tribunal of 3.12.2015 in case K 34/15, as well as the judgment of the ECtHR of 7.05.2021 in case Xero Flor (4907/18).

This circumstance causes the judgment to be affected by a defect resulting in its non-existence in internal and international legal  space.

Stanisław Biernat

Teresa Dębowska-Romanowska

Kazimierz Działocha

Lech Garlicki

Mirosław Granat

Wojciech Hermeliński

Adam Jamróz

Stefan Jaworski

Leon Kieres

Biruta Lewaszkiewicz-Petrykowska

Wojciech Łączkowski

Ewa Łętowska

Marek Mazurkiewicz

Andrzej Mączyński

Janusz Niemcewicz

Małgorzata Pyziak-Szafnicka

Stanisław Rymar

Ferdynand Rymarz

Andrzej Rzepliński

Jerzy Stępień

Piotr Tuleja

Sławomira Wronkowska-Jaśkiewicz

Mirosław Wyrzykowski

Bohdan Zdziennicki

Andrzej Zoll

Marek Zubik