National and international courts' assessment of conformity to the Constitution and the ECHR (on the basis of Art. 6(1), first sentence, of the ECHR) of statutes... K 7/21
On 10 March 2022, the Constitutional Tribunal – composed of the following judges: Stanisław Piotrowicz (Presiding Judge), Mariusz Muszyński (Judge Rapporteur), Krystyna Pawłowicz, Wojciech Sych, and Andrzej Zielonacki – delivered its judgment in the case ref. no. K 7/21, in which it adjudicated that “Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the ECHR), 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:
(1) under the phrase ‘civil rights and obligations’, it comprises the judge's subjective right to hold a managerial position within the structure of common courts in the Polish legal system
– is inconsistent with Article 8(1), Article 89(1)(2) and Article 176(2) of the Constitution of the Republic of Poland,
(2) in the context of assessing whether the requirement of ‘tribunal established by law’ has been met:
(a) it permits the European Court of Human Rights and/or national courts to overlook the provisions of the Constitution and statutes as well as the judgments of the Polish Constitutional Tribunal,
(b) makes it possible for the European Court of Human Rights and/or national courts to independently create norms, by interpreting the Convention, pertaining to the procedure for appointing national court judges
– is inconsistent with Article 89(1)(2), Article 176(2), Article 179 in conjunction with Article 187(1) in conjunction with Article 187(4) as well as Article 190(1) of the Constitution,
c) authorises the European Court of Human Rights and/or national courts to assess the conformity to the Constitution and the ECHR of statutes concerning the organisational structure of the judicial system, the jurisdiction of courts, and the Act specifying the organisational structure, the scope of activity, modus operandi, and the mode of electing members of the National Council of the Judiciary
– is inconsistent with Article 188(1) and (2) as well as Article 190(1) of the Constitution”.
The ruling was unanimous.
The admissibility of the application and the reconstruction of the subject of the application.
The Tribunal deemed the application to be admissible. The Tribunal held that, in a series of the ECtHR’s rulings, not only have norms been derived from the reviewed convention provision, but also – due to Article 91(2) of the Constitution – in the practice of courts, they entered the national legal system. When reconstructing the subject of the application, the Tribunal took account of international law and the principles underlying that legal system as well as the unique character of the rulings of international courts, namely their law-making character.
The assessment of the conformity to the Constitution of the challenged legal norms arising from the ECHR.
With regard to the first allegation, the Tribunal concluded that, since Article 6(1), first sentence of the ECHR – insofar as under the phrase “civil rights and obligations”, it comprises the judge's subjective right to hold a managerial position within the structure of common courts in the Polish legal system – it is inconsistent with the indicated higher-level norms for the review, because:
(1) in violation of the constitutional provisions concerning the right of access to the public service, the said provision of the ECHR creates such a subjective right at the convention level;
(2) outside the constitutional procedure for the ratification of an international agreement, i.e. without the state’s consent, the said provision creates the content of a convention norm;
(3) in violation of the constitutional requirement that a statute should regulate the organisational structure of the judicial system, the said provision creates a subjective right to hold managerial positions in Polish courts, whereas such a right arises neither from the Constitution nor statutes.
With reference to the other allegation, the Constitutional Tribunal stated that, if Article 6(1), first sentence, of the ECHR serves as a basis for deriving the norm permitting the ECtHR to assess the process of appointing judges, by overlooking the universally binding provisions of the Constitution and statutes, as well as the final and universally binding judgments of the Polish Constitutional Tribunal, then the said norm is inconsistent with the higher-level norms for the review, because:
(1) it infringes the constitutional obligation of consent for the ratification of a certain type of an international agreement, for the said norm is created in the course of the law-making activity of the ECtHR; (2) it violates the constitutional powers of the Constitutional tribunal as well as the principle that the Tribunal’s rulings are final; (3) it violates the constitutional powers of the President of the Republic with regard to appointing judges.
As far as the third allegation is concerned, the Constitutional Tribunal held that since the ECtHR derived, from Article 6(1) of the Convention, competence and systemic norms which make it possible to assess the constitutionality of Polish statutes on the judicial system and its organisational structure, the status of a judge as well as make it possible to substantively review the correctness and legality of the rulings of the Polish Constitutional Tribunal, then the said norm is inconsistent with the higher-level norms for the review, because:
(1) it infringes the Constitutional Tribunal’s systemic position determined in the Constitution, which makes the Tribunal the only body in the Polish legal order which is authorised to assess the conformity of statutes to the Constitution and international agreements ratified with prior consent granted by statute; (2) it violates the constitutional principle that the Tribunal’s judgments are final and universally binding.
The effects of the judgment.
As a rule, the Constitutional Tribunal of the Republic of Poland avoids conflict of laws with the international legal order, relying on the principle of the favourable interpretation of the Constitution with regard to the international legal order or the-conflicts-of-laws rules. However, this was not possible in the case under examination, as the source of the problem is the ECtHR’s manifestly defective activity in the course of creating norms derived from Article 6(1) of the Convention, where the ECtHR relied on its misunderstanding of the Polish legal system.
As a result, the ECtHR created normative content which permits the Court’s unauthorised interference with the constitutional order of the Polish state, and in particular it permits the redefinition of the content of constitutional institutions, both in their substantive aspects (the principle of the separation of powers, the principle of the rule of law, the powers of state authorities) as well as in their institutional aspects (the notion of a court, the notion of a legal act, the prerogatives of the President of the Republic) or permits the Court’s creation of individuals’ subjective rights which ae either non-existent in the said norm or are contrary thereto.
The effect of the Tribunal’s judgment entails the elimination of the indicated norms from the legal system, and consequently the four rulings delivered on those grounds by the ECtHR, namely: the judgment of 29 June 2021 in the case of Broda and Bojara v. Poland; the judgment of 22 July 2021 in the case of Reczkowicz v. Poland; the judgment of 8 November 2021 in the case of Dolińska-Ficek and Ozimek v. Poland; the judgment of 3 February 2021 in the case of Advance Pharma sp. z o.o. v. Poland; for the Polish state, those judgments lack the attribute specified in Article 46 of the Convention (the obligation to execute judgments).
Such a restriction does not constitute, on the part of Poland, a violation of international law, since it does not affect the very content of the Convention’s provision which Poland adopted by ratifying the Convention; the restriction delineates a boundary of the ECtHR’s law-making freedom and it should be regarded as an objection on the part of the state to an attempt at reshaping an international obligation by adding new content and imposing it on Poland per facta concludentia, outside the procedure for amending treaties.
The state authorities that are competent in managing foreign affairs ought to evaluate whether – so as to avoid misunderstanding with regard to the perception of Poland’s international obligations – it is not justified to take action aimed at informing appropriate international partners, including the competent convention authorities, about the constitutional boundaries delineated in the present judgment within which Poland is bound by Article 6(1) of the ECHR.
If, in the legal order, there are acts of applying the law which were issued on the basis of the norms derived from Article 6(1), first sentence, of the Convention, declared in the present judgment to be unconstitutional, and there are procedures for revoking those acts, then – in the light of Article 190(4) of the Constitution – such acts may be revoked.