Statement by Retired Judges of the Constitutional Tribunal on the the Constitutional Tribunal Judgment in case K 7/21

Retired judges of the Constitutional Tribunal state that the judgment in question is another scandalous example of jurisprudence violating the Constitution. 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.

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