Commissioner Marcin Wiacek with a request to the Constitutional Tribunal to postpone the hearing on the superiority of EU law over national law

The Ombudsman, Marcin Wiącek, in his application to the Constitutional Tribunal, argues that the outcome of the case concerning the motion of the prosecutor general, Zbigniew Ziobra, concerning the assessment of the legality of the selection of judges of the Tribunal by the European Court of Human Rights (ECtHR) will have an impact on the assessment of the correctness of the composition of the trial scheduled for August 31 on the superiority of EU law over national law.

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The Constitutional Tribunal is expected to return to the case concerning the principle of the superiority of EU law over national law, initiated by Prime Minister Mateusz Morawiecki, on August 31. Meanwhile, at the end of July, the prosecutor general Zbigniew Ziobro sent a request to the Constitutional Tribunal concerning the assessment of the legality of the election of judges of the Constitutional Tribunal by the European Court of Human Rights. There is no deadline for this case yet.

As emphasized in Friday’s information published on the Ombudsman’s website, the case on the motion of Prime Minister Morawiecki will be examined by the full panel. “Therefore, since the President of the Constitutional Tribunal (Julia Przyłębska – ed.) Has handed over this case to the full bench, it will include people whose participation – in the light of the ECtHR judgment – is tantamount to failure to comply with the requirement to form the adjudication panel in accordance with the Act” – it was written. As indicated above, it is precisely the correctness of the participation of these persons in the adjudication panel of the Constitutional Tribunal that the application of the Public Prosecutor General concerns.

“The result of the proceedings in this case will therefore have a direct impact on the assessment of the correctness of the adjudicating panel in the case on the basis of the Prime Minister’s request” – it was written.

In the opinion of the ombudsman, there is therefore a basis for suspending the proceedings until the application of the Public Prosecutor General is examined. If this request is not granted, the Ombudsman requests that the hearing be adjourned on August 31, until the request is examined.

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“The Ombudsman reminds that a few years ago the Public Prosecutor General questioned the correctness of appointment of the judges of the Constitutional Tribunal Stanisław Rymar, Piotr Tuley and Marek Zubik (…) On March 12, 2020, the Constitutional Tribunal discontinued the proceedings in this case. the exclusion of these three judges from adjudicating in other cases. They were approved by the Constitutional Tribunal, “we read.

As indicated above, this fact also supports the motion to suspend or possibly postpone the proceedings until a final decision is issued in the case initiated by the Public Prosecutor General’s motion.

The Public Prosecutor General demands an examination of the constitutionality of Art. 6 sec. 1 sentence 1 of the European Convention on Human Rights, which states that “everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of the merits of any charge made against him. against him a criminal case “.

The provision was contested, inter alia, to the extent that it involves the ECtHR’s assessment of the legality of the process of selecting judges of the Constitutional Tribunal in order to determine whether the Constitutional Tribunal is an independent and impartial tribunal established by statute, and to the extent that the term ‘court’ used in this provision includes Constitutional Court”.

In the justification of the application it was admitted that the constitutional review of the convention is “an event without precedent in the jurisprudence of the Constitutional Tribunal”. However, as added, “the fact that we are dealing with an assessment of a monument of international law” does not release the Constitutional Tribunal from fulfilling its constitutional role + the last word court +, whose duty is to defend the legal system of the Republic of Poland, in particular when international mechanisms lead to the negation of fundamental principles this regime “.

In early May, when ruling in the Xero Flor case, the European Court of Human Rights found that Poland violated the provisions of the European Convention on Human Rights in the field of the right to a fair trial by a court established by law.

The case heard by the ECtHR concerned a company that sued the State Treasury, complaining about the amount of compensation due to damage to the field. After the judgments of courts unfavorable for the company, the case was referred to the Constitutional Court, which discontinued it. The decision was signed by judge of the Constitutional Tribunal, Mariusz Muszyński. The company alleged that the panel of judges examined its case violated the constitution and filed a complaint with the European Court of Human Rights. The ECtHR upheld her arguments, finding that the Constitutional Tribunal was judged by a judge who did not have the right to do so and ruled that Poland should pay the company EUR 3,418 in compensation.