Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms, insofar as the term ‘tribunal’ used therein comprises the Constitutional Tribunal K 6/21
On 24 November 2021, the Constitutional Tribunal considered the application of the Public Prosecutor-General with regard to Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms, insofar as the term ‘tribunal’ used therein comprises the Constitutional Tribunal and the said provision grants the European Court of Human Rights the jurisdiction to assess the legality of the process of electing judges to the Constitutional Tribunal.
The Constitutional Tribunal adjudicated that:
1. Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws – Dz. U. of 1993 No. 61, item 284) – insofar as the term ‘tribunal’, used in that provision, comprises the Constitutional Tribunal of the Republic of Poland – is inconsistent with Article 173 in conjunction with Article 10(2), Article 175(1) and Article 8(1) of the Constitution of the Republic of Poland.
2. Article 6(1), first sentence, of the Convention referred to in point 1 – insofar as it grants the European Court of Human Rights the jurisdiction to review the legality of the process of electing judges to the Constitutional Tribunal – is inconsistent with Article 194(1) in conjunction with Article 8(1) of the Constitution.
Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.
The ruling was unanimous.
The challenged provision stipulates 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”. The Public Prosecutor-General challenged norms derived from the said provision by the European Court of Human Rights (ECtHR) in its judgment of 7 May 2021 in the case of Xero Flor w Polsce sp. z o.o. v. Poland: the norm which deems that the Constitutional Tribunal is the tribunal within the meaning of Article 6(1), first sentence, of the Convention as well as the norm granting the ECtHR the jurisdiction to assess the legality of the process of electing judges.
Thus, what was subjected to the Constitutional Tribunal’s review was a set of norms arising from the law-making interpretation of Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), arrived at by the ECtHR in a particular case. Although the said interpretation was arrived at in the context of a single case, it is binding for the High Contracting Parties on the basis of Article 32 of the Convention, and due to the position and authority of the ECtHR, the said interpretation is universally respected by national courts. There exists no other mechanism for verifying the said interpretation than a review conducted by the Constitutional Tribunal, which – being “the court of the last word” – is obliged to safeguard the fundamental constitutional principles expressed in the Constitution of the Republic of Poland. For these reasons, the Tribunal concluded that it had the competence to review the norms applied by the ECtHR in the judgment in the case of Xero Flor w Polsce sp. z o.o. v. Poland.
In accordance with the well-established case law of the ECtHR, the application of Article 6(1), first sentence, of the Convention in proceedings before constitutional courts is limited to exceptional situations. Above all, Article 6 of the Convention does not guarantee the right of access to the court which is competent to invalidate or revoke a normative act and it does not apply to the reopening of proceedings which results from the domestic court’s ruling on an infringement of the Constitution. The said provision may be applied as long as proceedings commenced by way of an extraordinary appeal (such as a Polish constitutional complaint) have a similar character and scope to ordinary appellate proceedings, and also the constitutional court is competent to take corrective measures pertaining to the individual situation of the complainant.
None of the above prerequisites is met with regard to the Polish constitutional court. The Constitutional Tribunal is an organ of the judicial branch of government (Art. 10(2) of the Constitution); however, it does not implement the administration of justice, construed as settling individual civil, criminal or administrative cases. Pursuant to Article 175(1) of the Constitution, the exclusive jurisdiction within that scope has been granted to the Supreme Court as well as the common, administrative, and military courts, and they implement the administration of justice in the Republic of Poland. The primary task of the Constitutional Tribunal consists in reviewing the hierarchical conformity of legal norms and – where needed – the elimination of unconstitutional norms from the legal system. Even when considering a constitutional complaint, the Constitutional Tribunal adjudicates on the law, and not on the individual rights of the complainant. Neither does the Tribunal constitute a court of third instance, nor does it replace courts (as it does not review the application of law in a specific case). A judgment issued by the Constitutional Tribunal which is advantageous to the complainant does not automatically result in revoking the final ruling, but it merely makes it possible to reopen the proceedings.
In the light of the above, the ECtHR’s unconditional categorisation of the Polish Constitutional Tribunal as an organ of the judicial branch which is covered by the scope of the application of Article 6(1), first sentence, of the Convention infringes the provisions of the Constitution which establish the position of the Polish constitutional court within the domestic constitutional order, namely the following provisions read in conjunction: Article 10(2), Article 173 and Article 175(1), as well as the principle of the supremacy of the Constitution, referred to in Article 8(1).
What was also contested in the application was the norm granting the ECtHR the jurisdiction to assess the legality of the process of electing judges to the Constitutional Tribunal. Pursuant to Article 194(1) of the Constitution, a monopoly in electing judges to the Constitutional Tribunal is held by the Sejm. The procedure is complemented when the new judge takes the oath of office before the President of the Republic. In the Polish legal system, there are no authorities or mechanisms that would make it possible to verify the legality of the process of electing judges to the Constitutional Tribunal. The Constitutional Tribunal deemed itself incompetent within the said scope, in its judgment in the case ref. no. K 35/15 and its decision in the case ref. no. U 8/15. When assessing the legality of the process of electing a judge to the Constitutional Tribunal in the case initiated by the applicant company, the ECtHR devised a procedure for reviewing the composition of the Constitutional Tribunal which is unknown to the Polish Constitution and, in an unauthorised way, interfered in the constitutional powers of the Polish state authorities – the Sejm and the President of the Republic, which constitutes a violation of Article 194(1) of the Constitution as well as the principle of the supremacy of the Constitution.
The Tribunal's judgment in the present case is limited to the aforementioned scope. This means that the Constitutional Tribunal adjudicated that the specified norms indicated in the operative part of the judgment and derived from Article 6(1), first sentence, of the Convention infringe the provisions of the Constitution and, as a result, they have no legally binding force. Within the remaining scope, the said provision – as an element of the international agreement to which the Republic of Poland is a party – still constitutes part of the domestic legal order and may be used by Polish citizens as the basis for lodging applications with the ECtHR.
The adjudicating bench in the case was composed of: the Presiding Judge – the President of the Constitutional Tribunal, Judge Julia Przyłębska; the Judge Rapporteur – Judge Wojciech Sych; Judge Zbigniew Jędrzejewski; Judge Bartłomiej Sochański; and Judge Michał Warciński.