Friday 25 November 2022

Secretary General's Article 52 ECHR Report on Poland

Earlier this week, the Council of Europe's Secretary, Marija Pejčinović Burić, published her report on Poland's (non-)implementation of a number of key judgments of the Court on the right to a fair trial in Poland, part of the wider debates about the rule of law in Poland. The report was written under the so-called enquiry procedure of Article 52 ECHR which provides: 

'On receipt of a request from the Secretary General of the Council of Europe 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.' 

In this case, the debate focused on two heavily criticised Polish Constitutional Court judgments of 2021 finding specifically Article 6 ECHR contrary to the Polish Constitution. Starting an Article 52 inquiry is extremely rare, as reported earlier here.

It remains to be seen how and to what extent the export will affect the Committee of Ministers' work on the supervising the implementation of judgments. Considering the exceptional and rare use of the Article 52 ECHR option, it should be taken seriously all the more, in order to guarantee the effectiveness of the whole ECHR system. Crucial cases are already on the Committee's agenda for the December meeting and both Rule 9 submissions of a number of Polish NGOs on the relevant European Court judgments, as well as the reactions thereon of the Polish government, will be discussed. This is the official press release:

'A report by Secretary General Marija Pejčinović Burić has been published today on serious issues raised by two judgments of the Polish Constitutional Court of 24 November 2021 and 10 March 2022. In these judgments, the Constitutional Court found that the European Convention on Human Rights, specifically Article 6, which ensures the right to a fair trial (as interpreted by the European Court of Human Rights), is not compliant with the Polish constitution.

The Secretary General concludes that the established and exclusive competence of the European Court to apply and interpret the rights set out in the Convention was challenged by these two judgments. As a result, Poland’s obligation to ensure to everyone under its jurisdiction the enjoyment of the right to a fair trial by an independent and impartial tribunal established by law is, at this stage, not fulfilled in Polish law. The Secretary General expresses her concerns in view of the rising number of similar judgments and related applications pending before the European Court.

In her report, the Secretary General underlines Poland’s strict obligation to execute the judgments of the European Court and stresses that the shortcomings identified need to be addressed by the Committee of Ministers when supervising Poland’s execution of these judgments, pursuant to Article 46 of the Convention. The Committee of Ministers will supervise in December 2022 the execution by Poland of judgments of the European Court in the cases of Xero Flor w Polsce sp. z o.o., Reczkowicz group of cases, Broda and Bojara.

The report shall serve as a basis for further engagement with the Polish authorities in a constructive dialogue, with a view to ensuring the full enjoyment of the right to a fair trial by an independent and impartial tribunal established by law in Poland.'