The dummy Constitutional Tribunal managed by Julia Przyłebska ruled today that Article 6(1) of the European Convention on Human Rights, guaranteeing everyone the right to a fair trial, is inconsistent with the Polish Constitution when applied to proceedings before the Constitutional Tribunal. It also ruled that the European Court of Human Rights has no right to assess the legality of the appointment of judges to the Constitutional Tribunal.
In other words, the Constitutional Tribunal itself recognised that it is not a court established by law within the meaning of the Convention. Therefore it does not have to be independent and impartial, and proceedings before the Constitutional Court do not have to meet the requirements of a fair trial.
“This is a clear denunciation of the European Convention on Human Rights, the fundamental act protecting citizens’ rights and freedoms” attorney Sylwia Gregorczyk-Abram of the #FreeCourts Initiative told TVN24, commenting on the Constitutional Tribunal’s decision.
“This means, ladies and gentlemen, that you have been deprived of yet another way of protecting your rights and freedoms, as all the fuses in the Polish constitution have long since been twisted” she added.
In practical (and legal) terms, this “coming out” of Julia Przyłębska’s Court will not have any major significance and will not have any effect on proceedings before the European Court of Human Rights, which is not bound by the decision of the Polish Constitutional Tribunal.
It may, however, provide a pretext for initiating disciplinary proceedings and other repressive measures against judges referring to the ECtHR judgment in the Xero Flor case.
The ECtHR itself will still be able to resolve complaints made by Polish citizens regarding the operation of the Constitutional Tribunal, and will still be able to issue rulings establishing a violation of the right to a court if the Constitutional Tribunal is composed of an understudy – as was the case in the Xero Flor case.
It was the ECtHR judgment in this case stating that the Constitutional Court in the composition with a stand-in judge is not a court within the meaning of the Convention that led to Zbigniew Ziobra’s application to the Constitutional Court and today’s judgment.
The proceedings before the Constitutional Tribunal only ostensibly concerned the review of the constitutionality of the Convention. In fact, the Court assessed a specific ruling of the European Court of Human Rights (Xero Flor v. Poland). Thus today Poland has joined Russia and has become the second member of the Council of Europe in which ECtHR judgments are subject to review.
With today’s decision, the Tribunal of Julia Przyłębska has itself confirmed that the Constitutional Tribunal no longer functions in Poland in the way it is described in the Constitution of the Republic of Poland. The body operating in the building on Szucha Avenue has become a tool in the hands of political power to solve its problems.
The ECtHR judgment in the Xero Flor case was just such a problem. That is why the General Prosecutor submitted a motion to the Constitutional Tribunal. Ziobro wanted to obtain a decision which would be a pretext for the Polish government to ignore the ECtHR judgements, which the authorities do not like. The Constitutional Court has issued a decision in line with Ziobro’s request, and the Polish government may now want to use it to disobey the May judgment and others like it.
We would like to point out, however, that this would be a violation of Poland’s treaty obligations, because the binding force of the Strasbourg Court’s judgments (including the judgment in the Xero Flor case) derives from another provision of the Convention (Article 46(1) of the ECHR), which has not been challenged today. Poland remains obliged to implement it, in accordance with its international obligations.
Today’s decision of the Constitutional Tribunal was foreseeable, as three of the five members had already commented on the ECtHR judgment in the Xero Flor case, stating that “it was handed down without a legal basis and constitutes an unlawful interference with the domestic legal order. For these reasons, it must be considered a non-existent judgment”. This is what a three-member panel of the ECJ, chaired by Julia Przyłębska, ruled in June, disagreeing with the exclusion of the stand-in judge.
The Court ruled today in a composition of: Julia Przyłębska (chair), Zbigniew Jędrzejewski, Bartłomiej Sochański, Wojciech Sych (rapporteur) and Michał Warciński.