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Judgment of the The Constitutional Tribunal of Poland - K 6/21

JUDGMENT
dated 24 November 2021
Ref. No. K 6/21*
Judgment in the name of the Republic of Poland
The Constitutional Tribunal, composed of:
Julia Przyłębska - Presiding Judge
Zbigniew Jędrzejewski
Bartłomiej Sochański
Wojciech Sych - Reporting Judge
Michal Warciński,
Recording Clerk: Michał Rylski,
having considered, at the hearing on 24 November 2021 – in the presence of the applicant
and the President of the Republic of Poland, the Sejm, the Minister of Foreign Affairs, and the Polish Ombudsman

the application of the Public Prosecutor-General,

a d j u d i c a t e s as follows:
1. Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws of 1993 No. 61, item 284, as amended) – insofar as the term ‘tribunal’ used in that provision
comprises the Constitutional Tribunal of the Republic of Poland – is inconsistent with Article 173 in conjunction with Article 10(2), Article 175(1) and Article 8(1) of the Constitution of the Republic of Poland.
2. Article 6(1), first sentence, of the Convention referred to in paragraph 1 – insofar as it grants the European Court of Human Rights the jurisdiction to review the legality of the process of electing judges to the Constitutional Tribunal – is inconsistent with Article 194(1) in conjunction with Article 8(1) of the Constitution.
Moreover, the Tribunal d e c i d e s:
to discontinue the proceedings as to the remainder.
The ruling was unanimous.


STATEMENT OF REASONS


The Constitutional Tribunal has concluded as follows:


1. Subject matter of review.


In his application to the Constitutional Tribunal, the Public Prosecutor-General challenged Article 6(1), first sentence, of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by Protocols Nos 3, 5 and 8 and supplemented by Protocol No. 2 (Journal of Laws of 1993, No. 61, item 284, as amended; hereinafter: Convention): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Public Prosecutor-General made the subject matter of review not the literal wording            of the cited provision, but the standards derived therefrom by the European Court of Human Rights (hereinafter: ECtHR) in its judgment of 7 May 2021 in Xero Flor w Polsce Sp. z o.o. v. Poland). The Public Prosecutor-General therefore requested a review of the constitutionality of Article 6(1), first sentence, of the Convention,

This ECtHR judgment is relevant to the proceedings before the Tribunal in case ref. K 6/21 only insofar as it relates to the rule derived from Article 6(1), first sentence, of the Convention, relating to the right to a tribunal established by law in the context of the status of the Constitutional Tribunal and the assessment of the correctness of the election of its judges.

2. ECtHR judgment of 7 May 2021

It found, again citing the judgments of the Constitutional Tribunal on successive provisions governing the appointment of judges, that the three judges appointed by the Sejm in December 2015, including the judge ruling on the applicant company’s constitutional appeal, had been appointed in breach of Article 194(1) of the Constitution, namely the requirement that a judge should be elected by the Sejm whose term of office covers the date on which his/her seat becomes vacant. ECtHR found that there was no procedure in Polish law under which the applicant company could challenge the alleged procedural defects in the process for electing Constitutional Tribunal judges. As such, no remedies were provided (see paragraph 288).

The ECtHR concluded that the applicant company had been denied its “right to a tribunal established by law” on account of the participation in the proceedings before the Constitutional Tribunal of the judge, whose election was vitiated by grave irregularities that impaired the very essence of the right at issue. In this regard, therefore, there was a violation of Article 6(1) of the Convention. This ECtHR judgment is relevant to the proceedings before the Tribunal in case ref. K 6/21 only insofar as it relates to the rule derived from Article 6(1), first sentence, of the Convention, relating to the right to a tribunal established by law in the context of the status of the Constitutional Tribunal and the assessment of the correctness of the election of its judges.

3.  Competence of the Constitutional Tribunal to rule in the present case.
It is undisputed that in the present case the subject matter of the Tribunal’s review are legal norms which do not derive directly from Article 6(1), first sentence, of the Convention, but which are derived from that provision as a result of the jurisprudential activity of an international judicial body. In other words, the normative interpretation of Article 6(1), first sentence, of the Convention by the ECtHR in relation to a particular case heard by the Tribunal (the practice of law application) was reviewed by the Tribunal.

Every ECtHR judgment thus constitutes an exclusive, final and authentic interpretation of the provisions of the Convention and thus acquires, ipso facto, a normative character. The interpretation of the provisions of the Convention also establishes a binding ex tunc interpretation. This circumstance is clear from the case-law of the ECtHR, which the Tribunal bases on the interpretation applied in previous judgments, following the common law. In the judgment of 7 May 2021, the standards derived from Article 6(1) of the Convention in relations to the Constitutional Tribunal are the result of the ECtHR’s previous law-making interpretation of that provision.

4. Structure of the Constitutional Tribunal

The major issue addressed in the Public Prosecutor-General’s application concerns the qualification of the Constitutional Tribunal by the ECtHR in relation to the interpretation of Article 6(1), first sentence, of the Convention, according to which the ECtHR assumed that the term “tribunal” used in the cited provision comprises the Tribunal. Pursuant to Article 10(2) in fine of the Constitution, the Constitutional Tribunal is, in addition to courts, an organ of judicial power. However, it is not a court within the meaning of Article 175 of the Constitution, and the Tribunal’s activities cannot be described as “administration of justice” in the sense of deciding individual civil, criminal or administrative cases. It is distinguished from ordinary courts, which are required to apply the applicable law, beyond a reasonable doubt. The Constitutional Tribunal, unlike ordinary courts, does not decide individual cases, but it is a “court of law” that examines the existence of relations of compatibility of legal standards of different ranks and – as a rule – does not make an assessment of facts.

Proceedings before the Tribunal demonstrate certain elements in common with proceedings before ordinary courts. The Tribunal is guaranteed by the Constitution and by law the independence inherent to courts and the independence of its judges, and its decisions are made in the manner typical of judicial proceedings and in the forms typical of the judiciary, such as judgments and orders. However – given the specificity of the Tribunal’s competences defined in the Constitution – these similarities prevent the Tribunal from being considered a court and the proceedings before it from being considered judicial proceedings.

5. Status of a Constitutional Tribunal judge

Pursuant to Article 194(1) of the Constitution, the Constitutional Tribunal is composed of 15 judges chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law. The basic provision concerning the status of a Constitutional Tribunal judge is Article 195(1) of the Constitution, which provides that judges of the Constitutional Tribunal, in the exercise of their office, are independent and subject only to the Constitution. This provision is the exclusive source of the independence of a judge of a Polish constitutional tribunal. According to the Constitution, Tribunal judges are elected by the Sejm and the oath is taken before the President. Both these bodies – as they are elected by universal suffrage – have unquestionable democratic legitimacy. Thus, by participating in the procedure of creating Tribunal judges, they provide them with the necessary democratic legitimacy. Thus, the basic principle of the system of the Republic of Poland, arising from Article 2 of the Constitution – the principle of democracy – is given effect. In light of the Constitution, the power to judge on behalf of the Republic of Poland requires democratic legitimacy and solid justification in the will of the sovereign (Article 4 of the Constitution).

6. Assessment of grounds of appeal

The first standard challenged in the present case makes it necessary to consider the Tribunal adjudicating in the field of human rights and civil freedoms as the “tribunal” referred to in Article 6(1) of the Convention, which is supposed to be the result of the previous interpretation of that provision in the judgments repeatedly cited by the ECtHR in the reasons for its judgment of 7 May 2021 (see paragraphs 188-191). The second of the standards challenged by the applicant, concerning the ECtHR’s review of the composition of the Constitutional Tribunal, was derived by the ECtHR from Article 6(1) of the Convention on the basis of the interpretation applied in the Guðmundur Andri Ástráðsson judgment, in which the ECtHR clarified the scope and meaning to be given to the term “tribunal established by law” and developed a test, which it then applied in the judgment of 7 May 2021.

Another circumstance relevant to the assessment of the Tribunal’s competence to rule in the present case is that the standards derived by the ECtHR from Article 6(1), first sentence, of the Convention in its judgment of 7 May 2021 concern a matter which is not regulated by the Convention. This means that the Republic of Poland, by joining the Council of Europe in 1991 and then ratifying the Convention in 1993, did not agree to be bound thereby. Under Article 32 of the Convention, the ECtHR has jurisdiction to hear all cases concerning the interpretation and application of the Convention and its Protocols. The ECtHR is therefore only a body for the application of law (it administers international justice) and the interpretation of standards. The scope of competence of the ECtHR under the Convention sets limits that the body may not exceed. In the international adjudicatory process there is no place for actions involving the creation of new standards, nor for extending by interpretation the application of the existing standards to new constitutional areas of States Parties to the Convention (extending the competence of the ECtHR to this area). Such actions, as lacking grounds in the Convention, go beyond the political and legal authority that the ECtHR has received from States Parties to the Convention. They are therefore ultra vires actions and the resulting judgment is devoid of enforceability and the refusal of the State to enforce it will not amount to a breach of the Constitution.

In the context of the present case, the ECtHR, in its judgment of 7 May 2021,made such an unlawful interpretation of the Convention – specifically its Article 6(1) – which broadened the content of that provision, leading in fact to a modification that may only be made by way of an amendment to an international agreement (in the case of the Convention by the adoption by the States Parties of a subsequent additional protocol), and thus with the consent of the State Party concerned. Moreover, the standards created by the ECtHR through this judgment interfere with (or, more precisely, negate) the fundamental constitutional principles expressed in the Constitution. There is no mechanism for their verification other than the review of the Constitutional Tribunal. In doing so, the Tribunal emphasises that this review does not concern the ECtHR judgments, nor does it seek to interpret the provisions of the Convention. Nor does the Tribunal examine the substance of the standard itself, which is essentially the same for all Council of Europe states. The Tribunal reviews the constitutionality of a provision of an international agreement (here: Convention) in the sense given to it by the ECtHR in its adjudicating process.

In fulfilling its role, the Tribunal is obliged to uphold the sovereignty of the Republic of Poland and cannot allow the ECtHR, using its jurisdiction in the field of international human rights, to interfere with the legal system of Polish constitutional bodies. Poland, by ratifying the Convention, did not consent to the jurisdiction of the ECtHR in this regard. The Tribunal’s obligation is to defend the Polish constitutional identity. It does so by means of reviewing whether the standard with the content shaped in the ECtHR case-law fits into the Polish constitutional system from the perspective of the principle of supremacy of the Constitution, expressed in its Article 8(1). The Tribunal emphasised that it is obliged to protect the Constitution, which is the supreme law of the Republic of Poland, and if there is a conflict between the rulings of the CJEU and the Constitutional Tribunal, the latter is obliged to understand its position in such a way, that in fundamental matters, of the constitutional dimension, it will retain the position of the “court of last resort”. The Tribunal reiterates the precedential nature of this case. In this connection, while upholding the existing line of jurisprudence on the admissibility of review of acts of law application, the Tribunal found it necessary to formulate additional grounds for the admissibility of such review, which in particular circumstances allow the Tribunal to extend its jurisdiction to the review of constitutionality of the standards created by way of law application.

            The Tribunal emphasises that it does not question the autonomous understanding of the term “tribunal” as used in Article 6(1) of the Convention. It is familiar with the ECtHR’s case-law which accepts that a tribunal within the meaning of the Convention may be considered an authority which has the power to make binding decisions itself, has been established by law and acts in a manner which ensures independence and impartiality. The Constitutional Tribunal is not a tribunal within the meaning of Article 6(1) of the Convention. As such, the norm derived therefrom, which extends the term “tribunal” to the Tribunal contravenes the provisions of the Constitution, which define the constitutional position of the Polish constitutional tribunal. In the light of Articles 173 and 10(2) of the Constitution, the courts and tribunals, although listed together as organs of judicial power, have different competences, but the monopoly in the administration of justice in the sense of deciding individual civil, criminal or administrative cases, and therefore those to which Article 6(1) of the Convention refers, is only vested in the Supreme Court, ordinary courts, administrative courts and military courts, as expressly provided in Article 175(1) of the Constitution. A Tribunal judgment allowing the constitutional appeal does not have the effect of challenging the final decision, but is the basis for re-opening proceedings, or for quashing the decision or other settlement on principles and in a manner specified in provisions applicable to the given proceedings (Article 190(4) in fine of the Constitution). In this light, the ECtHR’s finding that the proceedings before the Constitutional Tribunal were decisive for the applicant’s civil rights is incorrect. Wrong conclusions were also drawn from the analysis of the model of the Polish constitutional appeal. The ECtHR found, in analysing Xero Flor’s constitutional appeal, that the dispute in the proceedings before the ordinary courts concerned the right to compensation for lost property and therefore a civil right within the meaning of Article 6(1) of the Convention.

In this light, the fact of applying by the ECtHR in its judgment of 7 May 2021 of the three-step test formulated in its 1 December 2020 judgment in Guðmundur Andri Ástráðsson v. Iceland to assess whether the applicant company was deprived of its right to a “tribunal established by law", was incorrect. Indeed, the Constitutional Tribunal is not a tribunal referred to in Article 6(1) of the Convention.

For the foregoing reasons, the rule recognising the Constitutional Tribunal as a tribunal deciding individual disputes within the meaning of Article 6(1), first sentence, of the Convention breaches the provisions of the Constitution that establish the constitutional position of the Polish Constitutional Tribunal, namely Articles 10(2), 173 and 175(1), as interpreted jointly. In this context, the Tribunal points out that the obligation of the Republic of Poland to observe binding international law, enshrined in Article 9 of the Constitution, cannot be fulfilled in isolation from Article 8(1) of the Constitution. Indeed, the Constitution has absolute primacy of validity and application and Article 9 of the Constitution is in no way an exception to the principle of its supremacy. Thus, any norm of international law, created in the process of application of law by an international body outside the content of the agreement or modifying this agreement without the consent of the state, interfering with the constitutional order, does not enjoy the protection of Article 9 of the Constitution. This is because it is not an act of international law binding the Republic of Poland.

The ECtHR’s action in this regard, under the guise of exercising its jurisdiction under the Convention, is considered by the Tribunal as a violation of Article 6(1) of the Convention by its unauthorised (and consequently erroneous) interpretation and a violation of the conventional principle of subsidiarity by its non application. The ECtHR encroached into the sphere covered by the exclusive competence of the national constitutional authorities (the Sejm and the President), which have a monopoly on the appointment of judges to the Tribunal, and also undermined, without legitimate reasons, the case-law of the Constitutional Tribunal, in particular the judgment in case ref. K 1/17, concerning the legal basis for the election of its judges. Consequently, a judgment rendered beyond competences (ultra vires) cannot have the value of a judgment; it is a non-existent judgment (sententia non existens) and as such is devoid of effect (it is unenforceable).

Analysis of the legal status of Constitutional Tribunal judges and their election process (see paragraph 5 of this part of the reasons) leaves no doubt that there are no organs or mechanisms in the Polish legal system that would enable verification of the legality of the election of Tribunal judges. Moreover, it was the Constitutional Tribunal itself that found it inappropriate to do so. The ECtHR’s analysis of the Tribunal’s case-law and the conclusions drawn therefrom are illegitimate and incorrect. In particular, the ECtHR failed to provide arguments why it had not taken into account the views expressed by the Tribunal in its judgment in ref. K 1/17, as well as numerous decisions dismissing applications for disqualification of Tribunal judges in which the Tribunal referred to their legal status. It appears from the Tribunal’s analysis made in case ref. K 1/17 that the Tribunal’s to date decisions have not shaped the legal status of any of its judges who took the oath of office before the President. the President, in administering the oath of office to future judges, is not merely a “notary” but is performing an act constituting the function of a judge.

The Tribunal has consistently upheld its view that the composition of the Tribunal in every case before it is properly staffed and that all judges on its panel are lawfully elected. It further strongly states that no national or international body has the power or any basis to undermine the status of Tribunal judges, and any attempt to do so amounts to a violation of the constitutional rules. The Tribunal also points out that the ECtHR has no basis for examining the independence of Tribunal judges since it derives from the Constitution and statutes.

The source of the independence of a Tribunal judge is Article 195(1) of the Constitution, which provides that Constitutional Tribunal judges, in the exercise of their office, are independent and subject only to the Constitution (see paragraph 5 of this part of the reasons). Constitutional and statutory guarantees of judicial independence include irremovability (permanent nature of office), permanent nature of remuneration and retirement status. The constitutional guarantee of a judge’s independence from the appointing authority is primarily the permanent nature of his or her office; irremovability makes judges free from dependence on the appointing authority. The independence is therefore not derived from the manner in which a judge was elected to the office. Since judicial independence takes effect after election as a judge, in the course of holding office, it is not possible to formulate grounds for independence or to evaluate it ex ante. Whether a judge will be independent is not determined by how he or she has been appointed, but primarily by his or her internal independence and impartiality. Moreover, in its case-law, the ECtHR has repeatedly stressed that the mere fact that a judge has been appointed by the executive or legislative authority does not amount to a violation of the right to an independent tribunal, as long as, after his or her appointment, the judge is free from pressure in the performance of his or her judicial functions (see, e.g., judgments of: 9 November 2006, 65411/01, Sacilor Lormines v. France; 3 July 2007, 31001/03, Flux v. Moldova (No. 2); 18 October 2018, 80018/12, Thiam v. France).

It should also be noted that in its judgment of 7 May 2021 the ECtHR applied the three step test formulated in the Guðmundur Andri Ástráðsson case, already cited several times in the present case, contrary to its purpose and basic assumptions. As discussed above, it unjustifiably concluded that the election of new Tribunal judges by the Sejm and the taking of the oath of office before the President had amounted to a violation of Polish law. As such, it is inappropriate to conclude that any violation affected the election of judges. Finally, the finding that the applicant had no opportunity before the Constitutional Tribunal to apply for the disqualification of a judge is untrue, since it had such a right but did not exercise it. Accordingly, the Tribunal held that the rule derived from Article 6(1), first sentence, of the Convention, on the basis of which the ECtHR had conferred on itself the competence to review the legality of the election of Constitutional Tribunal judges, was inconsistent with Article 194(1) in respect of the principle of supremacy of the Constitution as expressed in Article 8(1) thereof.

Public Prosecutor-General made Article 89(1)(3) of the Constitution the standard of review with regard to the allegation formulated in paragraph 3 of the request for relief of the application; said provision stipulates that “ratification of an international agreement by the Republic of Poland, as well as denunciation thereof, shall require prior consent granted by statute – if such agreement concerns: (...) the Republic of Poland’s membership in an international organization.” Justifying the violation of this standard, it pointed out that the Convention is an international agreement concerning the freedoms, rights or duties of citizens set forth in the Constitution, and only to that extent did the States Parties to the Convention consent the jurisdiction of the ECtHR. This consent, however, does not include the power to review the correctness of the formation of constitutional organs of public authority (here: Constitutional Tribunal), because a norm with such content was not consented to by the State Party. The Tribunal notes that the content of the constitutional standard invoked by the Public Prosecutor-General does not stem from Article 89(1)(3) of the Constitution, but from Article 89(1)(2) of the Constitution. This is because the latter refers to agreements concerning the freedoms, rights or duties of citizens as defined in the Constitution.

The judgment rendered in the present case is of a scope nature. This means that the Tribunal ruled that certain norms derived from this provision, as indicated in the operative part of the judgment, violate the provisions of the Constitution, and therefore have no binding effect. The Tribunal therefore derogated from the normative content described in the operative part of this judgment without challenging Article 6(1), first sentence, of the Convention. This provision, as an element of an international agreement to which the Republic of Poland is a party, within the scope indicated by the Tribunal in this judgment, continues to be part of the domestic legal order and may be the basis of applications lodged by Polish citizens with the ECtHR.

It follows from this judgment that the Republic of Poland is not obliged to submit the system and proceedings before the Tribunal as well as the legality of the election of Tribunal judges to a review by the ECtHR. The Republic of Poland, as a party to the Convention, decided to submit to the ECtHR jurisdiction the case-law of Polish ordinary courts and of the Supreme Court in cases covered by the Convention, and in this respect the Republic of Poland honours its obligations. However, the status of the Constitutional Tribunal and the status of its judges, including the principles of their appointment, are determined exclusively by the Constitution and are not subject to the case-law of the ECtHR.