Opinion of HFHR on the motion of the Public Prosecutor General to declare unconstitutional Art. 6 paragraph 1 of the ECHR

In July 2021, the Public Prosecutor General applied to the Constitutional Tribunal to declare unconstitutional Art. 6 paragraph 1 of the European Convention on Human Rights, to the extent that said provision relates to the Constitutional Tribunal (CT) and enables the European Court of Human Rights to assess the legality of the election of CT judges. The hearing in this case is to be held on 24 November 2021. Considering the consequence of the ECHR as the most important act of international law in Europe regarding human rights protections, HFHR has prepared a brief analyzing the admissibility and substantive reasoning of the Prosecutor General’s motion.

In HFHR’s view, the motion of the Public Prosecutor General is inadmissible, meaning the proceedings before the Constitutional Tribunal should be discontinued. The Constitutional Tribunal’s jurisdiction includes only the constitutional review of legal norms rather than e.g., court judgments. Meanwhile, the Public Prosecutor General’s motion, although it formally concerns Art. 6 paragraph 1 of the ECHR, actually aims to challenge a specific ruling – the judgment of the ECtHR in the case of Xero Flor w Polsce sp. z o.o. v. Poland. Although the Constitutional Tribunal has long held the position that if a given provision is understood uniformly in settled judicial decisions, it should be assumed that it has such meaning and may be subject to constitutional review in this respect, the Prosecutor General fails to prove, in the matter at bar, the existence of such an established, uniform interpretation. On the contrary, he points to only one specific judgment, while presenting arguments which, in the applicant’s own opinion, would prove that it was incorrect.

HFHR also emphasized that if Polish authorities disagreed with the ECtHR judgment in the Xero Flor case, they should have applied for the Grand Chamber to examine the case. “Such a request may be submitted within three months from the date of the Chamber’s judgment. There is no guarantee that it would be accepted, but if the government was convinced that the judgment was incorrect, it could at least attempt to submit such a request” explains Dr. Marcin Szwed, HFHR lawyer.

In HFHR’s view, the Prosecutor General presents no convincing arguments that purport the challenged provision’s unconstitutionality. The mere fact that the Constitutional Tribunal is not a court within the meaning of the Polish Constitution does not mean that recognizing it as a court within the meaning of Art. 6 of the ECHR violates the Constitution. The concepts used by the ECHR are autonomous in nature, which means they need not have the exact same construction as identical terms in national law. This must be the case, given that 47 countries are parties to the ECHR, and, additionally, its authentic languages are English and French. The concept of “court” must therefore be interpreted primarily in light of the purpose and function of Art. 6 paragraph 1 of the ECHR. We could only speak of a possible inconsistency of the referenced provision with the Constitution if including the proceedings before the Constitutional Tribunal within the scope of Art. 6 of the ECHR led to some unconstitutional consequences, e.g. it prevented the Constitutional Tribunal from performing its constitutional functions or granted it additional powers in a constitutionally unacceptable manner. However, such effects do not occur. Contrary to the Public Prosecutor General’s assertions, under Art. 6 paragraph 1 of the ECHR, it does not follow that the Constitutional Tribunal became a court within the meaning of the Polish Constitution or that it acquired competence to administer justice. It only follows that in the proceedings before this body, provisions flowing from Art. 6 paragraph 1 of the ECHR, such as independence, impartiality or legality of the constitution of the body examining the case, must be fulfilled. It cannot be argued that such requirements violate the Constitution, as they also result from the Constitution itself. The Polish Constitution also requires that the Constitutional Tribunal be independent and that its judges are elected in accordance with the law.

HFHR also disagrees with the argument that the interpretation adopted by ECtHR in the Xero Flor case would lead to Poland being subject to international obligations not resulting from the ECHR. First, as already indicated, the Constitutional Tribunal cannot assess the validity of the interpretation adopted by the ECtHR. Secondly, although it is true that the previous jurisprudence of the ECtHR did not prejudge whether Art. 6 paragraph 1 of the ECHR covers proceedings before bodies with such powers as the Polish Constitutional Tribunal, it also did not explicitly reject such an interpretation. We are therefore not dealing with a sudden, unforeseen change, but with a clarification of the jurisprudence. Polish legal literature also presents views on the applicability of Art. 6 paragraph 1 of the ECHR to proceedings before the Constitutional Tribunal initiated pursuant to constitutional complaints and inquiries as to legality.

HFHR also notes that the Convention imposes obligations on states that must be respected by all state authorities. If, on the other hand, these authorities do not act in accordance with the standards flowing from the ECHR, a breach of the Convention may occur and, ultimately, when the breach cannot be remedied in domestic proceedings, the state’s liability may be enforced at the international level. In this respect, the Constitutional Tribunal is not some exceptional body which would be exempt from the obligation to comply with the Convention and whose actions would be excluded from ECtHR review in terms of violating the freedoms and rights set out in the ECHR. Moreover, when examining the legality of the election of judges of the Constitutional Tribunal, the ECtHR was guided by the findings of the Constitutional Tribunal itself.

Referencing the effects of a possible judgment declaring the unconstitutionality of Art. 6 paragraph 1 of the ECHR in the challenged scope, HFHR points out that such a ruling of the Constitutional Tribunal would certainly not have “external” legal effects. “The ECtHR will still be able to examine the complaints of citizens affected by the actions of the Constitutional Tribunal undertaken in a defective composition and will be able to continue its current line of jurisprudence,” adds Marcin Szwed. The judgment of the Constitutional Tribunal may at most have internal effects, discouraging courts from questioning the binding force of judgments of the Constitutional Tribunal issued with the participation of individuals not authorized to adjudicate. However, given the current situation in the Constitutional Tribunal and the crisis in its authority, it is doubtful whether such an effect will be achieved. Moreover, in the event of non-compliance with Art. 6 paragraph 1 of the ECHR with the Constitution, the authorities will have to somehow eliminate this inconsistency. In light of the views of the doctrine and the Constitutional Tribunal itself, three possibilities may come into play: amending the Constitution or amending or renouncing the ECHR. However, none of these possibilities is probable in the case at hand. Therefore, there is a risk that a possible judgment of the Constitutional Tribunal in line with the Prosecutor General’s request would only lead to the continuation of the violation of the Convention by tolerating further Constitutional Tribunal rulings involving defectively appointed individuals.

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Analysis of the Prosecutor General’s motion to the Constitutional Tribunal of 27 July 2021