Article 9 of the Polish Constitution establishes the obligation of respect by the Republic of Poland of international law binding upon it. This provision belongs to the fundamental principles of the Polish legal system. However, it cannot be excluded that the interpretation or application of an international agreement, to which Poland is a party, will be changed by other parties or organs of an international organisation without consent of Poland. It could cause the conflict with principles or paticular provisions of the constitution. The case law of the European Court of Human Rights and the Court of Justice of the EU, leads to the conclusion that for a certain period of time, state authorities of Poland, by legislation or interpretation, attributed to provisions of the Polish constitution the meaning incompatible with their understaning at the moment of the accession of Poland to an international agreement. The protection of the supremacy of the constitution “modified” this way is equivalent to the use of an unconstitutional interpretation in order to free government from obligation to respect international law binding upon Poland.

The article presents arguments in favor of defining the European Court of Human Rights as a “European constitutional court,” and from that angle analyzes its approach to the rule of law crisis in Poland. Although the ECtHR does not rule based on constitution nor has the competence for abstract control of the “conventionality” of normative acts, voices in the literature have long argued that calling it a “European constitutional court” is not unfounded. There are several arguments supporting this view. The Court often indirectly or directly analyzes the “conventionality” of national legislation when addressing specific cases. Moreover, even though the ECtHR does not have the power to annul laws, its rulings frequently lead to legislative changes in European countries. The Court’s function cannot be narrowed down to resolving individual cases before it; through its jurisprudence, it develops new standards and significantly affects national legal systems. However, the ECtHR’s role as a “European constitutional court” is limited by factors such as the substantive scope of the convention itself, the principle of subsidiarity, and the related doctrine of the margin of appreciation. In recent years, a significant challenge for the ECtHR as a “European constitutional court” has been the rule of law crisis in Poland. Given the actual paralysis of the Polish Constitutional Tribunal, the ECtHR had to resolve a number of important issues, especially attacks on judicial independence. Often, violations of the Convention concerning threats to judicial independence resulted from the Polish authorities violating norms derived from the Polish Constitution and undertaking actions in bad faith, which the Court itself recognized in its rulings. In this way, it contributed not only to the protection of freedoms and rights guaranteed in the Convention but also to the defense of the Polish Constitution.

This paper examines recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) concerning the right to a fair trial, with a particular focus on cases arising from the Polish rule of law crisis that began in 2015. It begins by outlining the constitutional standard for the right to a fair trial as established by the Constitutional Tribunal of Poland, highlighting the key elements defined in the Constitution of the Republic of Poland. The paper then explores whether recent rulings from the CJEU and ECtHR modify or clarify this constitutional standard. Subsequent sections analyze the latest case law from both European courts in the context of the Polish crisis. These sections also include an examination of significant precedent decisions from the CJEU and ECHR regarding the right to a fair trial, which have influenced the judgments related to the rule of law crisis in Poland. Notable cases discussed include the CJEU ruling in the Associação Sindical dos Juízes Portugueses case, as well as the ECHR judgments in the Ástráðsson and Eskelinen cases. The conclusion addresses how these judgments have impacted the constitutional standard for the right to a court, the differing approaches taken by the two tribunals regarding violations of the right to a fair trial in Poland, and the potential of their case law to help restore the rule of law in the country.

The translated judgment of the European Court of Human Rights (ECtHR) was issued in a case in which the applicants alleged a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the lack of independence and impartiality of the Court of Arbitration for Sport (CAS). CAS is the most important body resolving disputes in the world of sports. It proves the ECtHR’s favourable attitude towards the institution of arbitration. The Strasbourg Court recognized CAS as an independent and impartial court established by law within the meaning of Article 6 section 1 of the Convention and emphasized the benefits for the parties and the entire justice system resulting from the existence of the arbitration dispute resolution procedure. It had a huge impact on the way in which fundamental issues of sports law were adjudicated, such as sanctions against athletes using doping or the admissibility of imposing sanctions on athletes for the actions of state authorities. The attitude of the ECtHR contrasts with the case law of the Court of Justice of the European Union, which established a number of conditions that must be satisfied by the judicial authority. They are difficult to be satisfied by most of arbitration bodies, which significantly hinders the development of arbitration in the European Union.

The author has analysed and translated the judgment of the European Court of Human Rights of 11 July 2022 in the case of Kavala v. Turkey, application no. 28749/18, made on under the infringement procedure. In this judgment, the Court pointed out a number of previously unarticulated theses on: the enforcement of its judgments, the infringement procedure, the relationship between the Committee of Ministers and the Court, as well as the role of conducting the infringement procedure itself when the Committee of Ministers considers that a State Party to the Convention is refusing to comply with its obligation to respect an issued judgment. The ruling may therefore have significance for a number of cases, including Polish ones, in which states do not comply with the execution of ECHR verdicts.