The Public Prosecutor General and the Minister of Justice in one, Zbigniew Ziobro, believes that the European Court of Human Rights should not assess the legality of the selection of judges of the Polish Constitutional Tribunal. Therefore, he asked the latter to declare one of the provisions of the European Convention for the Protection of Human Rights unconstitutional.
According to the application submitted on July 28, it was the Constitutional Tribunal that was to control the Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention. It is an international agreement in force in 47 countries of the Council of Europe. Poland ratified it in 1993. The convention guarantees the citizens of states belonging to the Council of Europe many rights and freedoms, which are upheld by the European Court of Human Rights. Ziobro undermines the constitutionality of one of the most important provisions: the right to a fair trial.
It was challenged, inter alia, that "to the extent that the European Court of Human Rights assesses 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 law", as well as to the extent that the term 'court' used in this provision includes the Constitutional Tribunal ”.
Ziobro challenges its interpretation by the Strasbourg Court in one of the judgments concerning Poland. In the opinion of the public prosecutor general, the provision – as interpreted by the ECtHR – is inconsistent with 12 articles of the constitution.
The Strasbourg Court has recently found three violations of the right to a fair trial by Poland. Ziobro's conclusion is a reaction to the May judgment. The ECtHR then found that Poland violated the convention due to the judgment issued in the Constitutional Tribunal with the participation of the so-called double judge Mariusz Muszyński in the case of one of the private companies. The verdict opens the way for Poland to be effectively sued for other rulings of the Constitutional Tribunal issued with the participation of duplicates. More importantly, it may lead to the decision of the PiS-controlled Tribunal being undermined.