The European Court of Human Rights (ECHR) has told Poland to stop what it claims is the obstruction of four judges elected to the country’s Constitutional Court (TK) from taking up and performing their duties.
In its decision, the Strasbourg-based court instructed Polish authorities to ensure that relevant bodies refrain from hindering the judges from taking up and exercising their duties.
The court also asked Poland to provide information on the judges’ situation and urged the TK to comply promptly with legal obligations governing the status of its judges in order to safeguard the constitutional court’s proper functioning.
The ECHR ruling of May 5 followed a petition by the individuals elected by parliament on March 13 who have not been allowed to assume their roles as a result of a dispute with the opposition Conservatives (PiS) aligned President Karol Nawrocki about them taking the oath of office.
The four individuals are closely associated with the centre-left government led by Prime Minister Donald Tusk.
They were elected to the TK along with two other individuals who took their oaths of office before President Nawrocki in early April.
Nawrocki delayed on taking the oaths of office from the four because of doubts about why parliament had delayed in electing TK appointees for over a year and asked the TK itself fro clarification.
However, the four judges and the Tusk government decided not to wait for the President, who according to the law is the only state official before whom the oath of office can be taken, and participated in a ceremony of taking the oath of office held in Parliament.
That ceremony, according to legal experts, was purely symbolic as it had no basis in law and the present chief justice of the TK Bogdan Swieczkowski has said he cannot allow them to take office until they have taken the oath of office in the President’s presence.
The four argue that they were elected by Parliament and that the head of state has no right to prevent them from taking office.
However, there is a precedent for Nawrocki’s actions. In the noughties a former PiS aligned President Kaczynski delayed the appointment of a TK judge for three months as he had doubts about the character of the individual involved.
In a bizarre move against the President and his advisors the Tusk government in April instructed public prosecutors to open an investigation into whether presidential officials may have influenced the President to breach the law.
The probe is also examining whether officials of the TK failed to carry out their responsibilities and violated the judges’ employment rights by not providing working conditions, pay or case assignments.
The Tusk government has been refusing to recognize the present composition of the TK and as a result has not been publishing its rulings.
For almost two years it’s parliamentary majority refused to hold elections for new TK judges when vacancies on the court arose.
The government changed its mind after first it lost the presidential election last year after which it had been hoping that a President allied with it would allow for ‘reset’ legislation making wholesale changes in the composition of the court.
After a ruling from the European Court of Justice which stated that the TK had violated the the supremacy of EU law with its rulings and that it did was not an independent court due to the way some judges had been elected back in 2015, during the period of the PiS government, the ruling majority decided to start the process of electing six TK judges.
Under Poland’s constitution, TK judges are elected by parliament for nine-year terms, and two more vacancies on the 15 member court due this year would guarantee the Tusk coalition and its supporters a majority on the TK until 2035.
