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On Thursday, Poland’s Minister of Justice and Prosecutor General Zbigniew Ziobro filed a motion to the Constitutional Tribunal asking it to examine whether the European Convention on Human Rights is compatible with the Polish Constitution. The Convention is an international agreement signed by all 47 member states of the Council of Europe. Poland has ratified the treaty in 1993.

"Reviewing the constitutional validity of the Convention is an unprecedented event in the jurisprudence of the Constitutional Tribunal" - Ziobro admits in his motion. "The fact that we are dealing with a cornerstone of international law does not, however, exempt the Constitutional Tribunal from fulfilling its constitutional role of a ‘court of last instance’, whose duty it is to defend the legal system of the Republic of Poland" - he added.

The convention guarantees many rights and freedoms to the citizens of the countries belonging to the Council of Europe, which are guarded by the European Court of Human Rights in Strasbourg. In his motion, Ziobro questions the constitutionality of one of its most important provisions: the right to a fair trial.

-Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law- Article 6.1 reads.

Ziobro questions its interpretation found in one of the rulings concerning Poland handed down by the ECHR. According to the Prosecutor General, the provision, as interpreted by the ECHR, is inconsistent with 12 articles of the Polish Constitution.

ECHR: Both the Parliament and the President acted iillegally

The Strasbourg Court has recently found that Poland violated the right to a fair trial in three separate cases. Minister Ziobro's motion is a reaction to the ruling handed down in May.

Back then, ECHR decided that Poland had violated the convention because of a judgment issued by the Constitutional Tribunal in the case of Xero Flor v. Poland. Specifically, it concerned the fact that "one of the judges on the bench of the Constitutional Tribunal which had examined its constitutional complaint had not been elected in accordance with the domestic law". With an illegally appointed judge adjudicating in the case, the Constitutional Tribunal lacked the attributes of a "tribunal established by law" – the ECHR ruled.

With the votes of the Law and Justice party, the Polish Parliament appointed three "stand-ins" to replace the judges of the Constitutional Tribunal. The ECHR found that it was a clear violation of the law. It also found by appointing the "stand-in" judges, President Andrzej Duda and the Parliament unlawfully influenced the Polish Court.

Thus, the ECHR ruled that "the independence and legitimacy of the Constitutional Tribunal had been seriously undermined, and the constitutionality of Polish laws could no longer be effectively guaranteed".

ECHR’s judgment clears the path for further complaints against Poland regarding other decisions handed down by the Constitutional Tribunal with the participation of the illegally appointed "stand-in" judges. More importantly, however, it may allow to challenge the validity of the politicized Constitutional Tribunal itself.

In May, the District Court in Gorzów Wielkopolski was the first court in Poland to refer to the ECHR judgment in its decision: it did not recognize the ruling of the Constitutional Tribunal and assessed the constitutionality of the laws already under review on its own. "After the ECHR judgment, every decision made with the participation of the stand-ins is legally flawed". - said the former Human Rights Commissioner Adam Bodnar, who motioned to exclude the stand-in judges from hearing cases in the Constitutional Tribunal.

Ziobro: Art. 6 does not apply to the Constitutional Tribunal

"The ECHR judgment was issued without a legal basis and constitutes unlawful interference with the domestic legal order. For these reasons, it must be considered a non-existent judgment"- this is how the politicized Constitutional Tribunal responded to Mr Bodnar’s motion to exclude the stand-in judges. 

Minister Ziobro considered this ruling to be insufficient because it concerned an individual case. That is why he submitted his own motion to the Constitutional Tribunal. 

In it, Ziobro contends that Article 6 of the European Convention on Human Rights does not apply to the Constitutional Tribunal. As the Polish government has previously argued: the Constitutional Tribunal is a constitutional court and does not exercise the administration of justice. Thus, Article 6 does not apply to it.

However, the ECHR found that the proceedings before the Tribunal were decisive for the rights of the company that filed the complaint against Poland, so Article 6 indeed applies.

"The Constitutional Tribunal is a constitutional organ of judicial power which is, however, not a court. Including it in the concept of a court constitutes a violation of the constitutional order" - Ziobro argues. He wants the Tribunal itself to assess whether the concept of a "court" as found in Article 6 applies to the Constitutional Tribunal and whether the requirements of the convention can be applied to proceedings taking place before the Tribunal.

The Prosecutor General has also requested that the Tribunal examines whether the ECHR can assess the legality of the process of appointing the Constitutional Tribunal judges and whether the Polish Tribunal is an independent court as required by the convention.

"The ECHR does not have the authority to assess the rules guiding the process of appointing Constitutional Tribunal judges, which are set out in the Constitution of the Republic of Poland, which is superior to the Convention" - he wrote.

"The composition of the Constitutional Tribunal and the way it operates cannot be controlled by an external body"- he added.

Poland’s illiberal drift continues

Should Minister Ziobro's motion be granted, it would effectively mean that Poland is challenging one of the most important international treaties. Never before has the Constitutional Tribunal questioned the Convention. - The only conventions left for the ruling party to challenge would probably be the UN conventions- says Mirosław Wróblewski, head of the constitutional law team at the office of the Commissioner for Human Rights.

The Constitutional Tribunal is now on a head-on collision course with Brussels. In June, attempting to defend the ruling camp’s judicial overhaul, it first declared the EU treaty unconstitutional - ruling that Poland is not obliged to abide by the interim measures issued by the CJEU with regards to the judiciary system.

Now, trying to defend the "stand-in" judges that helped the ruling party compromise the Constitutional Tribunal, it may go as far as to challenge the European Convention on Human Rights.

- These methods are from the same playbook. Ruling the Convention unconstitutional will raise doubts about Poland's respect for international law. Under the Vienna Convention on the Law of Treaties, Poland is obligated to respect international law. Also, Article 9 of the Constitution clearly states that Poland shall observe international law- Mr Wróblewski points out.

He admits that the options available to the Council of Europe to react to such a violation would be limited: - Its reaction could mainly be political.

Following the Russian role model

"The motion is by no means intended to depreciate Poland's international obligations" – Minister Ziobro claims. "Cooperation with all countries for the common good of the Human Family is a constitutional value, and for this purpose, Poland is a member of the international community" - he asserts.

Yet, he also points out that "the development of international law must not take the form of imposing an arbitrary, unilateral, and illegitimate will of states, which is what the recent jurisprudence of the Strasbourg Court is aiming at".

- A ruling in line with Ziobro's expectations would put us in a row with countries like Russia-says an international law expert.

- Following a series of unfavorable ECHR judgments, Russia passed legislation allowing its constitutional court to declare the convention incompatible with domestic law- he adds.

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