29 November 2021

The Honest (though Embarrassing) Coming-out of the Polish Constitutional Tribunal

(1) In its judgment K 6/21 (24.11.2021), the Polish Constitutional Tribunal declared Article 6 of the European Convention on Human Rights to be unconstitutional:

(a) “to the extent that the term ‘court’ includes the Constitutional Tribunal” 

(b) “insofar as it confers competence on the European Court of Human Rights to review the legality of the election of judges to the Constitutional Tribunal”.

(2) The operative part of this judgment is in response to the judgment of the ECtHR of 7 May 2021,  4907/18 Xero Flor v Poland. Referring to the Guðmundur Andri Ástráðsson standard, the ECtHR there held that the participation of a defectively appointed judge of the Constitutional Tribunal, resulted in a violation of Article 6 EC by Poland.

The judgment K 6/21 is intended to justify the conclusion that the judgment of Xero Flor is not binding, as it was delivered ultra vires.  It was to be delivered on the basis of the standards set out in Article 6 of the Convention, which apply only to courts.  Since the Constitutional Tribunal  is not a court, the European Convention standards (according to the Constitutional Tribunal) cannot apply to it.

(3) The thesis of the judgment K 6/21, proclaiming that the Constitutional Tribunal is not a court, departs from the previous case law of the Constitutional Tribunal, which held that all standards of Article 6 of the Convention also apply to the Constitutional Tribunal itself.

(4) The judgment K 6/21 means that the Constitutional Tribunal has given the Polish authorities the right to decide which judgments of the ECtHR it will enforce and which it will regard as non-binding, as ultra vires, since at the time of Poland’s accession to the European Convention such an interpretation of the Convention text could not have been foreseen.

(5) The particular coming-out of the Tribunal, made in the judgment K 6/21 by admitting that the Constitutional Tribunal is not subject in general to the standards inherent in Article 6 EC, leads to the conclusion that the Polish Constitutional Tribunal and its judges need not be independent. Paradoxically, therefore, the judgment confirms (albeit by different reasoning) the disqualification of the Tribunal made in the Xero Flor judgment by ECtHR. And yet the Tribunal intended to remove the negative consequences for itself of the Xero Flor

(6) The judgment K 6/21 has far-reaching consequences:

– it deprives Polish citizens of certainty that any judgments of the ECtHR that may be beneficial to them will be implemented by the Polish authorities (because the authorities here reserve control over which judgments they consider ultra vires and which they will approve);

– serves to justify the Polish authorities’ discretion in their obligation to obey ECtHR judgments. (In this regard, the jurisprudential precedent belongs to Russia, which in 2013 refused to implement the judgment of the ECtHR).

(7) The K 6/21 judgment is not the first time the Constitutional Tribunal has questioned its obligation to obey international obligations. This type of method has already been applied to the CJEU: (completed or pending cases P 7/20, K 3/21, K 5/21, K 8/21) where disobedience to CJEU and TEU judgments was announced. Other cases are also pending in the Constitutional Tribunal: K 7/21 (concerning another ECtHR judgment).  The pending case K 11/20 challenges the constitutionality of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).

SUGGESTED CITATION  Łętowska, Ewa: The Honest (though Embarrassing) Coming-out of the Polish Constitutional Tribunal, VerfBlog, 2021/11/29, https://verfassungsblog.de/the-honest-though-embarrassing-coming-out-of-the-polish-constitutional-tribunal/, DOI: 10.17176/20211130-191829-0.

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