Monday 13 December 2021

Secretary General Inquires on the Situation in Poland: A Test for Poland and Article 52 ECHR

On 24 November 2021, the Polish Constitutional Court issued a ruling that challenged both the authority of the European Court of Human Rights to decide on the lawfulness of appointment of judges in national courts, and the standards of fair trial under the Convention. In response to this worrying development, on 7 December 2021, the Secretary General of the Council of Europe requested the Polish Government “to furnish explanations concerning the manner in which [its] … internal law ensures the effective implementation of Article 6 and 32 of the Convention following the judgment of the [Polish] Constitutional Court of 24 November in the case K 6/21”. 
The Secretary General explained that the legal basis for this inquiry is based on Article 52 of the Convention, which provides that “[o]n receipt of a request from the Secretary General … any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”. 
A textual interpretation of Article 52 ECHR (e.g. words ‘shall furnish’) suggests that Poland is obliged to provide in due time all the necessary information requested by the Secretary General. It has also been observed in the past that when the Secretary General triggers Article 52:
The State has the obligation to provide truthful explanations... The State has an obligation of result to provide explanations about the effective implementation of the Convention in its internal law: the State cannot, therefore, confine itself to providing explanations of a formal nature. On the contrary, bearing in mind also the obligation to execute treaty obligations in good faith …, a State has the obligation to furnish precise and adequate explanations which make it possible to verify whether the Convention is actually implemented in its internal law. This necessarily implies that the State must furnish information of a sufficiently detailed nature about the national law and the practice of the national authorities, in particular the judicial authorities, and about their conformity with the Convention as interpreted in the case-law of the European Court of Human Rights.
Poland was asked to answer to the Secretary General no later than 7 March 2022. It remains to be seen how or if Poland will respond to this inquiry. The Secretary General may again follow up with Poland on this or other issues concerning the Convention given that Article 52 does not prevent the Secretary General from making further inquiries with State parties to the ECHR.
It must be noted that Article 52 has scarcely been used in the past and remains a rather under researched provision. There seem to be no clear procedures on how and when the Secretary General issues inquiries under the ECHR, or what happens if a State does not provide timely  and truthful explanations to the Secretary General. The aim of Article 52 is also rather vague. Article 52 was inspired by a draft article on the UN covenants that provided for ‘a right to interrogation’ when States do not comply with human rights. Yet, this does not imply that the Secretary General may or should use Article  52 to ‘interrogate’ States. The Secretary General may strategically decide to employ it in order to engage in a form of dialogue with States.
In light of the foregoing, the outcome of the Secretary General’s inquiry on Poland may prove to be important not only for the present case, but also for the future potential of Article 52 ECHR.