Poland's decision to disregard the ECHR rulings is a move taken directly from the Russian playbook. In both cases, the respective governments have used the constitutional court to override their international obligations.
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Citing information coming straight out of Poland’s Ministry of Foreign Affairs, last week, Radio TOK FM revealed that the Polish government has not yet implemented - nor intends to implement- an unfavorable ruling of the European Court of Human Rights.

At issue is a judgment of the Strasbourg Court from last November. The case concerns two judges, Monika Dolińska-Ficek and Artur Ozimek, who sued the Polish government over a Supreme Court decision handed down by an adjudicating panel including so-called "neo-judges" – illegitimately recommended by the politicized National Council of the Judiciary (NCJ). Because the disputed case involved the politicized NCJ (which refused to recommend both Dolińska-Ficek and Ozimek), the judges claimed that they were deprived of their right to a fair trial. The ECHR agreed with them.

This is only one of seven cases the Polish government lost in Strasbourg as a consequence of the Law and Justice party’s judicial overhaul. The European Court of Human Rights ruled that Poland violated the European Convention on Human Rights, which guarantees a universal right to a fair trial.

The Strasbourg Court ordered Poland to pay Dolińska-Ficek and Ozimek a compensation of EUR 15,000 each. Additionally, the Polish government is also obliged to prevent further violations of the convention. 

However, according to an announcement issued by the Ministry of Foreign Affairs, the Polish government does not intend to execute any of this. Restoring the independence of the National Council of the Judiciary does not seem to be on its agenda either.

The politicization of the NCJ results in repeated violations of the convention. Yet, justifying its ignorance of the binding convention, the Polish government cites the verdict of the PiS-controlled Constitutional Tribunal, which ruled the ECHR interpretation of the convention incompatible with Poland’s constitution. Thus, according to the ruling camp’s logic, Poland does not have to implement the international court's rulings.

"Selective respect for international law weakens Poland as a democratic state" – the Helsinki Foundation for Human Rights believes. "By adopting a legal system à la Putin, Poland is losing its credibility on the international arena" - adds the Conference of Ambassadors of the Republic of Poland.

"Poland’s Constitutional Tribunal is completely devoid of its authority" 

According to legal experts associated with the Helsinki Foundation for Human Rights, Poland’s refusal to enforce the judgment is a "flagrant violation of the Constitution". Article 9 of the Constitution says that "the Republic of Poland shall respect international law binding upon it". Moreover, Poland has pledged to enforce ECHR judgments by ratifying the Convention on Human Rights. 

The organization points out that international obligations cannot be discharged by invoking domestic law. This is stated in the Vienna Convention on the Law of Treaties, which Poland acceded to in 1990. Thus, Poland cannot simply invoke the judgments of its Constitutional Tribunal to justify its failure to respect the human rights convention. "Besides, the Constitutional Tribunal has no authority to overrule or invalidate the judgments of international courts" – the organization emphasizes, noting that the current Constitutional Court is also "completely devoid of its authority".  It believes that such "selective respect for international law weakens Poland’s position as a democratic state".

The Conference of Ambassadors of the Republic of Poland- an assembly bringing together 36 former diplomats – stated that "the use of Constitutional Tribunal rulings as means to justify a failure to implement binding norms is an international tort". Assessing the government’s actions, the former ambassadors also point out a disturbing resemblance to Russia's political playbook. "By adopting a legal system à la Putin, Poland is losing its credibility on the international arena" – they claim.

Right out of the Russian playbook

Poland’s decision to disregard the ECHR rulings is a direct copy of what Russia has already done before. In both cases, the respective government had used the constitutional court for this purpose. Russia, however, additionally amended its constitution.

"The norms and rulings of international bodies are binding for Putin’s regime only if the Russian constitutional court confirms their compliance with the federal constitution. The current government of the Republic of Poland is now openly and without any shame following the same path, except that it does not even bother to make the applicable constitutional amendments (fortunately, Poland’s ruling camp does not have the necessary power to do so). A handy political instrument in this regard is the Constitutional Tribunal, which hands down judgments at the request of the ruling party" - assess the members of the Conference of Ambassadors of the Republic of Poland.


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