November 28
2021
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Dolores Utrilla
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25th November 2021
Human Rights Institutional law Justice & Litigation

Polish Constitutional Tribunal declares itself not covered by right to a fair trial under Article 6(1) ECHR

The Polish Constitutional Tribunal (Trybunał Konstytucyjny) has issued its judgment in case K 6/21, ruling that the application of Article 6(1) of the European Convention on Human Rights (ECHR) to proceedings before the Constitutional Tribunal is incompatible with the Polish Constitution.

The judgment has been given in proceedings initiated by the Polish Prosecutor General concerning the first sentence of Article 6(1) ECHR to the extent that the term ‘court’ in this provision includes the Constitutional Court and grants the ECtHR the competence to assess the legality of the election of judges of the Constitutional Court.

The case is a reaction to the ECtHR’s recent judgment in Xero Flor v Poland (application no. 4907/18). As previously reported on EU Law Live (here) and explained in this Op-Ed by Jakub Jaraczewski, in the Xero Flor judgment the ECtHR’s Grand Chamber ruled inter alia that the way in which the Polish Sejm had elected one of the judges of the Polish Constitutional Court was incompatible with Article 6(1) ECtHR and that therefore its decision in the applicant’s case was unlawful.

The judgment in K 6/21 follows another recent judgment by the Polish Constitutional Tribunal (in case K 3/21: see the EU Law Live Symposium on it) which declared that certain provisions of the Treaty on European Union (TEU) and related case law of the Court of Justice regarding the impartiality and independence of national judges are unconstitutional in Poland.

This same week, the ECtHR took note of the Polish Government’s withdrawal of the request for referral of Reczkowicz v Poland (applications no. 43447/19 and two others), an ECtHR’s Chamber judgment finding that Poland has violated Article 6(1) ECHR as the Disciplinary Chamber of the Polish Supreme Court is not a ‘tribunal established by law’.

A further case (K 7/21) concerning the applicability of the right to a fair trial under Article 6(1) ECHR to the Polish judiciary as a whole is currently pending before the Polish Constitutional Tribunal.

For more information, read the Polish Constitutional Tribunal’s press release (not available in English at the time of publication).

An Op-Ed on judgment K 6/21 by Op-Ed by Jakub Jaraczewski will be published soon on EU Law Live.

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