Poland’s Constitutional Tribunal, a formally independent but de facto government-controlled body, ruled on November 24 that an article of the European Convention on Human Rights is not compatible with the Polish Constitution.
The tribunal's ruling means that it has now declared that Polish legal judgements can take precedence over both the European Court of Justice (CJEU) and the European Court of Human Rights (ECHR), meaning that the government can ignore rulings from those courts it dislikes, and it restricts the possibility for Poles or foreign claimants to seek redress outside the Polish legal system, now controlled by the government. This consolidates state control of the judiciary, a prime objective of the country's radical rightwing government, and raises the stakes once again in its conflict with the European Commission over the rule of law.
The ruling “provides the Polish government with legal cover to ignore another international court – this time, the ECHR, thus escalating Polish rule of law crisis further,” tweeted Jakub Jaraczewski, a legal expert.
The Tribunal ruled on Article 6 of the Convention which says "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
The ECHR used Article 6 in its May judgment concerning a Polish rolled-out turf producer, which complained that Poland’s hunting laws did not guarantee receiving compensation if game like deer or wild boar damaged the company’s product.
The case had made it through to the Constitutional Tribunal, which ruled in 2017 that the company’s complaint was inadmissible.
The ECHR said that the company could not get a fair trial because the Polish government illegally appointed a judge to the Constitutional Tribunal that had reviewed the company’s case.
Warsaw ignored that, saying that the judiciary is EU member states’ sole competence, and asked the Constitutional Tribunal to look at whether the European Convention on Human Rights was compatible with the Polish Constitution.
The EU argues that any member state’s judiciary is a part of the wider system, topped by the bloc’s top court, the Court of Justice of the EU, as well as the Council of Europe's ECHR.
Questioning the primacy of Europe’s top courts follows a number of decisions by those courts effectively telling Poland that it should reverse changes in its judiciary. The EU is concerned that the changes jeopardise Polish courts’ independence and block the legal path of appealing to the ECHR and the CJEU.
The ECHR, which is charged with overseeing implementation of the European Convention on Human Rights, ruled on November 8 that Poland must take “rapid action” to ensure the independence of the judge-appointing body, the National Council of the Judiciary (KRS). It has also recently criticised the heavy handed actions of Polish border guards against refugees on the Polish-Belarus border. It also said in July that the so-called Disciplinary Chamber of the Polish Supreme Court is not a “tribunal established by law” and lacks “impartiality and independence”.
The Council of Europe expressed concern over the Polish move. Secretary General Marija Pejcinovic Buric said in a statement.“Today’s judgement from the Polish Constitutional Tribunal is unprecedented and raises serious concerns. We will carefully assess the judgment’s reasoning and its effects.”