Constitutional court finds ECtHR provision unconstitutional

The provision of the European Convention on Human Rights, which grants the ECtHR the competence to assess the legality of the election of judges of the Polish Constitutional Court, is inconsistent with the Constitution, the top court ruled on Wednesday.

On Wednesday, the Constitutional Court issued a judgment on the application of the Prosecutor General Zbigniew Ziobro, who wanted to examine the constitutionality of the provision of the European Convention for the Protection of Human Rights to the extent that it allows the ECtHR to assess the legality of the selection of judges of the Constitutional Court. br? The Constitutional Court ruled that the provision of the Convention challenged by Mr Ziobro, to the extent that it includes the Constitutional Court under the notion of a court, is inconsistent with the Constitution. The Constitutional Tribunal also found unconstitutional the understanding of the same provision of the ECtHR, which gives the European Court of Human Rights the competence to assess the legality of the election of judges to the Constitutional Court.

The Wednesday judgment of the Constitutional Court concerns Art. 6 sec. 1 sentence of the Convention for the Protection of Human Rights and Fundamental Freedoms. It states that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him".

This provision has been challenged to the extent that "it includes the assessment by the European Court of Human Rights of the legality of the process of selecting judges of the Constitutional Court in order to determine whether it is an independent and impartial tribunal established by law", and to the extent that the notion of " court ”used in this provision covers the Constitutional Court.

The Public Prosecutor General submitted a request in this case to the Constitutional Court in July. As Prosecutor General pointed out in the case, it is about "ensuring that the development of the case law of the ECtHR, which is a reflection of the dynamic nature of the rights guaranteed by the Convention, does not take the form of a distortion of the original meaning of the provisions of the Convention, which is not legitimised by the will of the states - parties". "This is the judgment of the ECtHR of 7 May 2021, Xero Flor v. Poland" is assessed.

The ECtHR, ruling in the case of Xero Flor, found that Poland breached the provisions of the Convention regarding the right to a fair trial by a court established by law. The case heard by the ECtHR concerned a company that sued the State Treasury, complaining about the amount of compensation due to damage to the field. After the judgment of courts was found unfavourable for the company, the case was referred to the Constitutional Court, which discontinued it, and the decision was signed by judge Mariusz Muszyński. The ECtHR agreed with the company's arguments and found that a judge in the Polish Constitutional Court had no right to do so.

The Constitutional Court adjudicated in this case in a panel of five. The judgments of the court are final.

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