On A Road to Nowhere

On Wednesday 24 November the Polish Constitutional Tribunal will, once again, review the extent to which existing international legal obligations, that were freely entered into by the Republic of Poland, are actually compatible with the Polish Constitution. The upcoming case K 6/21 targets the right to a fair trial, as guaranteed by Article 6 ECHR. In bringing this case before the Constitutional Tribunal, Justice Minister Zbigniew Ziobro, acting here as Prosecutor General, essentially challenges the recent final judgment of the European Court of Human Rights in the case of Xero Flor. In the latter case the Strasbourg Court held that the Constitutional Tribunal qualifies as a “tribunal” within the meaning of Article 6, as a result of which it has to meet the requirements of independence and impartiality and so on. Mr. Ziobro is now asking if this interpretation is in conformity with the Polish Constitution.

This new case comes only a few weeks after the widely-discussed K 3/21 judgment concerning the place of EU law in the Polish legal order. That judgment led to heated discussions, but the European Council of 22 October was swayed by German Chancellor Angela Merkel’s call for “dialogue” over confrontation with Poland. An outside observer might be forgiven for thinking that this “dialogue” did not yield any tangible results – on the contrary, the Polish government is simply continuing its strategy of challenging European court judgments. It does so before the very Constitutional Tribunal that it captured, and thus deprived of its legitimacy, almost 5 years ago.

The fact that this new case takes aim at the European Court of Human Rights also clarifies another matter. In the past years the Polish government has tried to frame the rule of law crisis as a bilateral issue between itself and the European Commission or, better still, individual members of the Commission who were portrayed as being “obsessed” with Poland. But the ruling party’s problems are not limited to the European Commission or even the European Union. Poland is also at loggerheads with the Venice Commission, GRECO, the Parliamentary Assembly of the Council of Europe (PACE) and, come to think of it, more or less any international supervisory body that has reviewed the situation of the rule of law in Poland recently. One might be tempted to think that what we have here is a government that cannot accept any external constraints upon what it perceives as, or seeks to portray as, an internal programme of judicial reform.

A remarkable aspect of the government’s attempts to neutralise these external constraints is that it seeks to rely on the Constitution – domestic law that is. This brings to mind Article 27 of the Vienna Convention on the Law of Treaties (1969): “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. The rule is a cornerstone of the international legal order. What should one make of a contracting party that does not live up to its obligations because of internal problems? What would that do to its credibility?

Poland ratified the ECHR almost 30 years ago, on 19 January 1993. The consequences were spelled out by the European Court of Human Rights: “… ratification of the Convention by a State presupposes that any law then in force in its territory should be in conformity with the Convention. If that should not be the case, the State concerned has the possibility of entering a reservation in respect of the specific provisions of the Convention (or Protocols) with which it cannot fully comply by reason of the continued existence of the law in question.” Poland did not make any reservations. No issues of potential contradiction between the Convention and the Polish Constitution were identified or even raised at any stage during the process leading up to the ratification by Poland of the Convention.

Of course it might be the case that the Convention has changed or, to be more precise, that the Strasbourg Court has changed its interpretation of the Convention to such an extent that a new and unforeseen situation has been brought about, with consequences that are unacceptable from the perspective of the Polish Constitution. This is indeed the main argument put forward not only by the Prosecutor General, but also some other parties to the proceedings in case K 6/21 – the President of the Republic and the Sejm. Such a development in the Court’s jurisprudence might call for a reaction, so the argument might run: a unilateral initiative is needed to restore the status quo ante. Which brings us to the merits of case K 6/21. Given the limited space available in this blog post, we refer to a more detailed expert analysis that was prepared by the Bingham Centre for the Rule of Law upon request by the Polish Commissioner for Human Rights. According to this analysis, in the drafting of which we were both involved, it is settled case-law that constitutional courts fall under Article 6 ECHR whenever their judgments are decisive for civil rights and obligations or criminal liability. Furthermore, scrutiny of judicial appointments falls within this remit as a supplement rather than a challenge to domestic rules in upholding the right of individuals to a fair trial before a tribunal established in accordance with the law. But let’s first take two steps back and see where case K 6/21 comes from.

The road to case K 6/21

As was mentioned above, the European Court of Human Rights in Xero Flor unanimously found that a member of the Constitutional Tribunal had been appointed in breach of Polish law. This amounted to a violation of the right to a fair trial before a ‘court established by law’, guaranteed in Article 6 ECHR. Since this May judgement, the Court has found further violations in the cases of Broda and Bojara, Reczkowicz and Dolinska-Ficek and Ozimek.

It seems safe to say that the Polish government strongly disagrees with the outcome of these cases. For situations like these the Convention has a solution to offer: the possibility to request a referral of the case to the Grand Chamber, after a Chamber has delivered judgment in that case. Article 43 ECHR allows any party to that case to argue that “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance” is at stake. If such a request for referral is accepted, the judgment of the Chamber will be set aside in order to be replaced by a new – and final – judgment of the Grand Chamber. If, however, a party decides not to avail itself of its right to request a referral, it must be assumed that it acquiesces in the Chamber judgment which, accordingly, becomes “final” and “binding”, as confirmed by Article 46 ECHR. Any other conclusion would undermine the principle of legal certainty and indeed the very system set up for the collective enforcement of the engagements undertaken by the High Contracting Parties.

The remarkable thing is that the Polish government did not request a referral in the Xero Flor case. It did in Reczkowicz … but then withdrew that request. Rather than staying within the system and elicit an authoritative ruling by the Grand Chamber, the Polish government preferred to share its concerns with its own Constitutional Tribunal. Hence case K 6/21. Put simply, the Prosecutor General raised three questions: (1) does the term “tribunal” as used in Article 6 ECHR include the Polish Constitutional Tribunal? (2) Should the Constitutional Tribunal’s function to adjudicate upon the compliance of normative acts with the Constitution be equated with the function of a tribunal in determining civil and criminal liabilities as defined by Article 6? (3) Is it constitutional for the process of selecting judges of the Constitutional Tribunal to fall under Article 6 scrutiny?

The applicability of Article 6 ECHR to constitutional courts

The basis for the Prosecutor General’s arguments appears to be the nomenclature used and function outlined in relation to courts and tribunals in the Polish Constitution. Article 175 declares that “the administration of justice … shall be implemented by the Supreme Court, the common courts, administrative courts and military courts”, whereas Article 188 and 198 separately define the functions of the Constitutional Tribunal of adjudicating upon the conformity of normative acts with the Constitution. However, Article 173 and 174 declare that both courts and tribunals “shall constitute a separate power” and “shall pronounce judgments in the name of the Republic of Poland”.

The settled case-law of the European Court of Human Rights, which goes back to the 1990s, takes a broad, functional approach as to whether constitutional courts fall under Article 6, rather than focusing on categorisation under domestic law. The Court has stated repeatedly that it is “fully aware of the special role and status” of cnstitutional courts, but such proceedings “do not in principle fall outside the scope of Article 6 § 1”. Indeed, the Court has found that Article 6 applies to proceedings before the German Bundesverfassungsgericht, the Austrian Verfassungsgerichtshof,  the French Conseil Constitutionnel,  the Swiss Bundesgericht, and  the constitutional courts of Spain, Croatia and the Czech Republic.

In determining on a case-by-case basis whether the proceedings before constitutional courts fall within the scope of Article 6, the ECtHR has established – again: decades ago – the test of “whether the result of the Constitutional Court proceedings is capable of affecting the outcome of the dispute before the ordinary courts”. This approach may expose a false dichotomy in the second question raised by the Prosecutor General in K 6/21. Rather than being mutually exclusive functions, there will be occasions in which the adjudication upon the compliance of normative acts with the constitution will be determinative for the assessment of civil rights or obligations or criminal liabilities. This was indeed the case in Xero Flor: if the claimants had been given the opportunity to claim that a secondary law fixing compensation levels was unconstitutional and the claim was upheld, then their civil right to compensation for damage to their crops would have been affected.

The composition of courts and Article 6 ECHR

The aspect of the Strasbourg case-law in this area that is perhaps most relevant for the Polish situation pertains to judicial appointments. Again, there is nothing new or special about the European Court finding that domestic tribunals were not composed in accordance with the law. In the recent Ástráðsson case the Grand Chamber established the test for assessing whether a tribunal is “established by law”: (1) was there a manifest breach of domestic law?; (2) if so, the breach must be assessed in light of the object and purpose to ensure the ability of the judiciary to perform its duties free of undue interference; and (3) how effective was the review, if any, conducted by national courts as to the legal consequences of a breach of a domestic rule on judicial appointments?

The manner in which the ECtHR assesses whether a tribunal is established by law can be forwarded as an argument for why it is misguided to challenge the constitutionality of such adjudication. The Strasbourg Court held, in line with the principle of subsidiarity, that “the review conducted by national courts … of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such a breach amounted to a violation”. The focus of the test on breaches of domestic law and the assessment by domestic courts of this question means that the ECtHR’s scrutiny is complementary rather than contrary to the constitutions of the States Parties. The domestic rules are already in place to ensure an independent and impartial judiciary for a fair trial, and the assessment by the Strasbourg Court merely ensures that the states have followed their own rules.

Conclusion: On A Road to Nowhere

Who would dare to predict the outcome of case K 6/21? But an indication might perhaps be derived from an earlier decision of the very same Constitutional Tribunal. As was already noted here, an interlocutory decision issued in June already gave a glimpse of the Constitutional Tribunal’s assessment: Xero Flor was “based on theses that demonstrate a lack of knowledge of the Polish legal system”; the judgment “was issued without a legal basis, exceeds the competence of the ECtHR and constitutes an unlawful interference with the national legal order” and “for these reasons, it must be considered a non-existent judgment (sententia non existens)”. That is not a very promising prelude. It evokes the image of a band happily marching on a road to nowhere, where no mirrors exist, and where no criticism is heard.

Perhaps one should not even be surprised that the Polish Prosecutor General has recently asked the Constitutional Tribunal (case K 7/21) to decide on the applicability of Article 6 ECHR to the judiciary as a whole.