LEAP calls on European Commission to end rule of law violations in Poland

Article by Fair Trials

Dear Commission President Ursula von der Leyen, Commission Vice-President for Values and Transparency Věra Jourová, Commissioner for Justice Didier Reynders,

The Legal Experts Advisory Panel (‘LEAP’), a pan-European network of fair trial rights defenders coordinated by Fair Trials, stands in solidarity with the Helsinki Foundation for Human Rights[1] in denouncing the ongoing rollback of the rule of law in Poland, including the attempt to restrict the reach of the fundamental rights enshrined in the European Convention of Human Rights (‘ECHR’, ‘the Convention’). We call on the European Commission to take strong action to end violations of the rule of law in Poland.

The Minister of Justice, who is also the acting Prosecutor General, has recently asked the Constitutional Court to examine whether the right to a fair trial provided for in Article 6 ECHR applies to Constitutional Court proceedings.

This comes after the European Court of Human Rights (‘ECtHR’) found that the irregular appointment of Constitutional Court judges by the Polish administration rendered the Court unlawful, which also meant that the right to a tribunal established by law was violated (Xero Flor case[2]). It is important to note that Poland did not exercise its right to request the referral of this case to the ECtHR Grand Chamber under Article 43 ECHR, the option enabling States to challenge this Court s judgements over questions deemed to affect the interpretation or application of the Convention.

In other words, the Prosecutor General is seeking to carve out proceedings before the Constitutional Court from the scope of Article 6 of the ECHR, effectively escaping regional European oversight mechanisms.

Article 6 of the ECHR enshrines the commonly shared fundamental right to fairness of criminal proceedings and aims to protect people from the structurally unequal power of the State against individuals.

The right to a fair trial, encompassing the right to a legally constituted tribunal, should be granted to all and at all levels of criminal proceedings, including before Constitutional Courts.

Poland s actions threaten the fundamental principle of judicial independence and open the door to abuses. All national courts have a key role to enforce and protect fundamental rights, including EU law, and need to maintain independence to do so.

This is particularly dangerous in light of the systemic backsliding of the rule of law in the country, with politically appointed judges[3] ruling on matters over which they lack both formal and substantive competence, dismissing ECtHR rulings as non-existent[4], etc.

It should not be possible to opt out of human rights whenever they inconvenience governments.

We acknowledge and welcome ongoing efforts at the EU level to restore the independence of the judiciary in Poland, and we urge the European Commission to take decisive action to effectively uphold the rule of law as a fundamental European value.

* This statement reflects the shared values of LEAP as a community of fair trial right defenders, and is the product of collaborative work between members of the network and Fair Trials. As per the Terms of Reference members subscribe to when joining LEAP, these views are not binding to them in an individual capacity.

[1] See their statement here.

[2] European Court of Human Rights, Case of Xero Flor w Polsce sp. z o. o. v. Poland, Application no. 4907/18, 7 May 2021, available at

[3] See, e.g., Poland – Opinion on the Act on the Constitutional Tribunal, adopted by the Venice Commission at its 108th Plenary Session, Venice, 14-15 October 2016, available here.

[4] The Polish Constitutional Court nullified the ECtHR judgement in the Xero Flor case. See, e.g., Lawson, Rick: Non-Existent: The Polish Constitutional Tribunal in a state of denial of the ECtHR Xero Flor judgment, VerfBlog, 2021/6/18, available here.