It Never Rains but it Pours. The Polish Constitutional Tribunal Declares the European Convention on Human Rights Unconstitutional

Abstract

This article deals with a new development in the jurisprudence of Poland’s Constitutional Tribunal: the Tribunal’s finding that art. 6 of the European Convention on Human Rights is incompatible to some extent with the Polish Constitution. The Tribunal ruled thus for the first time in its judgment of 24 November 2021 in case ref. K 6/21 in a reaction to the European Court of Human Rights judgment in the case of Xero Flor v. Poland (application no. 4907/18). The article critiques this judgment both from the national and international perspective. I argue that contrary to the intention of the Prosecutor General, who is also the Minister of Justice and who initiated the proceedings leading to this judgment, this judgment does not affect the obligation to enforce the Xero Flor judgment. As the Constitutional Tribunal, in commented judgment, fails to fulfil one of its essential functions, protecting citizens’ rights and freedoms, this judgment should be perceived as proof of the instrumentalisation of the Constitutional Tribunal for internal political purposes. This ruling, however, formed the basis for a new line of jurisprudence, as the Convention was again challenged before the Constitutional Tribunal by the Prosecutor General in reaction to subsequent ECtHR judgments. Constitutional Tribunal in its judgment of 10 March 2022 in case ref. K 7/21 ruled again on European Convention on Human Rights incompatibility with Polish Constitution.