Judgment of the Constitutional Tribunal on the ECtHR Assessment of the Status of Judges

During Thursday’s hearing – on March 10 – the Constitutional Tribunal examined the Attorney General’s request to examine art compliance. 6 sec 1, first sentence Conference on the Defense of Human Rights and Fundamental FreedomDrawn in Rome on November 4, 1950, Protocol no. Edited by 3, 5, 8, protocol no. 2 (Journal of Laws, No. 61, Item 284, 1993) added:

• The European Court of Human Rights recognizes that the subjective right of a judge to occupy administrative function in the institutional structure of the public justice system of the Republic of Poland is created under national law subject to judicial protection. Art. 8 sec 1, Art. 89 sec. 1 point 2 and Art. 176 sec 2 of the Polish Constitution2;
• The “Court established by law” in this provision does not take into account the generally applicable rules and laws of the Constitution of the Republic of Poland, as well as the final and universal binding rulings of the Polish Constitutional Tribunal. The basis for establishing the court. Article 89 (1) 1 point 2, Art. 176 sec. 2, Art. 179 Humor in connection. 187 para. 1 Humor in connection. 187 para. 4 and Art. 190 para. Of the Polish Constitution1;
• Allows national or international courts to carry out assessments restricting compliance with the constitution and judicial system of the Republic of Poland, the jurisdiction of the courts and the said Convention of the Law on the National Council of Judiciary. With the execution of the “Court established by law” condition Art. 188 points 1 and 2 of the Polish Constitution.

The panel consisted of Justices Stanislav Piotrovich – Chairman, Marius Mussysky – Vice-Chairperson of the Tribunal – Reporter, Judge Kristina Pavlovich, Judge Wojciech Sich and Judge Andrzej Zhilonaki.

Step: TK: The tribunal in Strasbourg has no right to assess the status of Polish judges >>

Our judges, stay away from them

The Attorney General’s request relates to a number of recent rulings by the European Court of Human Rights. In November last year, two Polish judges – Monica Toliska-Fissek and Order Osimek – ruled on the complaint. The applicants applied for judicial positions but were not recommended by the National Council of Judiciary and the decision did not change after appealing to the Supreme Court. The petitioners pointed out that the Extraordinary Control and Public Affairs Chamber of the Supreme Court, which examined their appeal, consisted of judges nominated by the current National Judicial Council and was not independent and independent.

Earlier, in July 2021, the ECHR stated in the case of Attorney Jonah Reskovich that there were “serious irregularities in the appointment of judges to the newly created Supreme Court disciplinary chamber after the legislative reform”. According to the ECtHR, the practice of appointing judges to the Supreme Court was violated because it was handed over to the National Council of the Judiciary, which is “an organization that does not guarantee adequate independence from legislative and executive powers”. On the other hand, in the case of Justices Alina Bojara and Mariusz Proda in the June judgment last year, they lodged a complaint with the ECTHR after the Minister of Justice was removed from office by the Deputy Chiefs of the District Court in Keells. The decision, which was issued without reasons and without the possibility of an appeal against it, the court accepted their complaint and ruled that Poland had violated the rules of the European Convention on the Right to Fair Inquiry.

Also read: Openness of disciplinary action against judges>

According to the Constitutional Tribunal, Art. Conference on the Protection of Human Rights and Fundamental Freedoms6 Does not match with Constitution “It authorizes the ECtHR or National Courts to evaluate the constitution and traditions of laws relating to the judiciary, jurisdiction and the structure of the law, the procedure and the election of members of the National Council of the Judiciary.” – The challenged provision of the Convention is unconstitutional to the extent that it allows the ECtHR or the National Courts to overrule the provisions, laws and judgments of the Constitution when evaluating the execution of a court condition established by law. Polish Constitutional Tribunal; In the process of explaining the conference, ECTHR or the National Courts will help to independently develop standards related to the procedure for appointing judges of national courts, he said.

Putinization of the Polish Judiciary

Judge Maciej Czajka explains the legacy of a court Natural. 6 EKBC Against the lawlessness of the state which wants to judge the citizen unjustly, e.g. Protects by pro courts. – The opinion expressed today shows the green light for state lawlessness against citizens. This is a salami ploy – today the right of the court is limited to a certain extent and tomorrow it can be done on a large scale. Eventually, however, we will all come to the point where we are “determined by the dependent elements”.Options of power beyond the control of any of the independent courts. This is a clear putinization of the law – The judge insists.

read more: Violation of the parties’ right to a trial “within a reasonable time” in light of the European Court of Human Rights case law

Judge Darius Masur of the District Court in Krakw, a spokesman for the Judges’ Association, “Themis”, insisted that the current ruling should be considered in line with the standards set by the European Council of Polish Judiciary. . – This means that Polish citizens should lose the right to a fair trial before an independent and impartial court. – Indicates. He further added that we are dealing with a far cry from the standards of an independent judiciary as a result of the long-standing international legal system of a democratic, fully sovereign Poland.

– The meaning of this ruling is that, according to those who claim to be the Constitutional Tribunal, the Polish Constitution allows the judiciary to be politicized. This is not true – Judge Masood points out. He goes on to say: The use of the term “attempt to overthrow the Polish judiciary” to refer to this bogus verdict (delivered with the participation of a dual judge) is not an exaggeration because so far only the Constitutional Court of the Russian Federation has. Russia has stated it will not implement the ECHR ruling. It is another step taken by a dozen angry people from Minister Geoffrey and the Constitutional Tribunal to leave the civilized circle of Western legal culture and head towards Poland.

Read: Constitutional Tribunal adjourns hearing on ECtHR rulings on the status of Polish judges until February 23 >>

The Polish Constitutional Tribunal undermines the very foundations of human rights

What happened was negatively assessed by Dr. Marcin Svet of the Helsinki Foundation for Human Rights. – This is another attempt to undermine Europe’s most important human rights document. This is a dangerous practice because every year many poles file complaints to the ECTHR seeking justice. It may change now that some of these judgments, which will be issued in the future, may be challenged by the Constitutional Tribunal. Furthermore, in my opinion, the Constitutional Tribunal does not have the competence to examine the constitutional nature of the judgments of the ECtHR. – Says.

He added that it was difficult to say what the consequences would be. – The government may acknowledge that there is no need to enforce ECtHR rulings by changing the law (e.g. in relation to the structure of the National Council for the Judiciary), but I do not know whether it will refuse to provide compensation or relief. ECthR. At this juncture it seems to me that the image problem for Poland is that the Constitutional Tribunal has announced such a verdict. The most popular case for controlling ECtHR judgments by the Constitutional Court is the accepted practice in Russia, so we can expect to compare what CC does with the functions of the Russian court. Regardless of the issues related to the film, I believe it is difficult to undermine and explain a legal process such as the founding conference of the Human Rights Defender in Europe. Sweat insists.

On the other hand, Judge Vladimir Zurek of the District Court in Krakw, keeping in mind the judgment of the European Court of Human Rights in the Zero-Floor case, insists that the decision of the Constitutional Tribunal cannot be considered as a judgment. In it, the tribunal found that the judgment of the Constitutional Tribunal had been violated with the participation of the person selected for the already occupied space. Art. 6 sec European Conference on Human Rights1And such authority does not meet the requirement of a “tribunal established by law.”

Step: Possibility to challenge the position of CT judges by ECtHR – Xero-Flor sp. Z oo v. Poland> Judgment of the Constitutional Tribunal K 6/21 as a result of the judgment of the ECtHR in the case

– I respect and respect the judgment of the Zero-Floor case and I fully accept it. An organization with dual judges means that we are dealing with non-judgment. As long as the resolution of such a judgment is physical, we as lawyers should not see it. We as lawyers should not follow that – Says. And he adds: – We have politically acquired the Constitutional Tribunal as opposed to the Polish Constitution, and now we have a ‘shell’, not an element. From a substantial point of view, although the Polish Constitutional Tribunal is a component, I do not deeply agree with such a decision if it is made.

The judge emphasizes that if we limit the use of the Convention, it will cease to function as an act of international law. – However, in view of the shortcomings of this judgment, we should ignore it. This is a disgrace to the Constitutional Court. I think it does not want to stand in line with countries like Russia that refuse to use the conference in its territory, he says succinctly.