Poland raises fresh questions on legality of European court rulings

Minister asks court to examine whether European rights law breaches constitution

Poland has ramped up its battle with Europe by questioning the right of European courts to rule on the legality of its contested judicial reforms.

Polish justice minister Zbigniew Ziobro has asked the country's constitutional court to examine whether the European Convention on Human Rights is applicable as a whole in Poland.

Mr Ziobro’s focus is on Article 6 of the convention, which guarantees “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

This has been the focus of two recent scathing rulings attacking Polish judicial reforms by the European Court of Human Rights (ECHR) in Strasbourg, guardian of the convention.


In May, the chamber found that a Polish applicant had been deprived of the right to a fair trial because a judge on the constitutional court panel that reviewed the case had been appointed using irregular procedures.

Given this and other reforms, the ECHR judges said the country’s constitutional court was “not a tribunal established by law”.

Poland’s constitutional court, filled with judges sympathetic to the government, described the ECHR ruling as a “lawless intervention” into Polish judicial competence.

A week ago the ECHR hit out again, siding with a woman who said Poland’s reformed courts deprived her of the right to a fair trial. The reforms of a disciplinary body for judges was, according to the human rights court, “a manifest breach of the domestic law which adversely affected the fundamental rules of procedure”.

It went on to describe Poland’s reformed judicial appointments procedures as “inherently tarnished”. Giving Poland’s parliament – effectively the government – the last word over who is appointed a judge represented “non-compliance with the principle of the separation of powers and the independence of the judiciary”.


A week on from that ruling, Mr Ziobro, who is now also chief public prosecutor as well as justice minister, has asked the constitutional tribunal – dubbed unlawful by the ECHR – to rule Strasbourg’s own interventions illegal. In his request, he left the constitutional judges in little doubt as to the ruling he expects.

His office said the right to determine the independence and legitimacy of Polish courts should be reserved for Poland.

The May ECHR ruling “violates the sovereignty of Poland”, the public prosecutor’s office said, warning that “such interference by international bodies in the model of the domestic constitutional judiciary risks legal chaos”.

Since coming to office in 2015, the national conservative coalition led by the Law and Justice (PiS) party, has carried out radical reform of the judiciary: appointing loyalist judges using contested procedures, making changes to appointment rules and setting up a new disciplinary chamber for judges.

Poland’s government says the changes were necessary to streamline the judicial system and remove old structures and cronyism; critics see a campaign to create a politically-beholden judiciary.

Some 38 cases linked to Poland’s controversial judicial reforms have been filed with the ECHR, part of the Council of Europe, the continent’s leading human rights body that is separate to the EU.

Reform war

A second front in its judicial reform war involves the European Commission and the Court of Justice of the European Union (CJEU), which has ordered the suspension of the disciplinary chamber it sees as incompatible with EU law.

The European Commission has given Poland until August 16th to observe that ruling but Mr Ziobro, chief author of the judicial reforms, said Poland would not comply, saying the ruling of the EU’s highest court was “illegal in Polish and European law”.

The legal battles come as Mr Ziobro, leader of a junior party in Warsaw’s ruling conservative coalition, jostles for political primacy in a long-running succession battle to inherit power from PiS founder Garishly Kaczynski.

The stand-off also raises the stakes as Poland awaits emergency funding from Brussels to bankroll a major stimulus package, worth €15.7 billion annually.

If Poland does not comply with the recent CJEU ruling, Brussels will ask the court to impose financial sanctions on Warsaw.

Thousands of Polish judges have urged their supreme court to ensure “full implementation of the decisions of the CJEU”.

Refusing to abide by the Luxembourg court’s rulings, they added, would violate the country’s constitution and the terms of the country’s EU accession in 2004.

Derek Scally

Derek Scally

Derek Scally is an Irish Times journalist based in Berlin