A Review of the Constitutionality of the ECtHR Case Law in the Context of the States Parties’ Obligation Under Art. 46(1) ECHR

Muszyński, Mariusz (2025) A Review of the Constitutionality of the ECtHR Case Law in the Context of the States Parties’ Obligation Under Art. 46(1) ECHR. LAW IDENTITY AND VALUES, 5 (2). pp. 111-143. ISSN 2786-2542

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Abstract

International courts are part of institutional solutions that are an answer to the necessity to solve various new problems affecting global society. However, for state, democracy and the rule of law this kind of role of the case law of international courts creates a problem. On the one hand it exists in competition to national judicial power and can verify its actions, and on the other hand it influences the content of provisions contained in international agreements, which is a clear example of the development of law (as to its substance) which bypasses the legislative power.Therefore, judgements of international tribunals have no direct effects, and their execution takes place by the actions of proper state organs on the basis of their national (constitutional) powers. This guarantees that the state has an impact on the manner in which aforementioned judgments are executed, and that it indicates the boundaries within which the state undertakes to abide by such a judgment.The possibility of the constitutional review of judgments delivered by international courts plays an important role in the process of their execution. It indeed deals with answering the question of whether broadly understood effects of a judgment can lead to a breach of the Constitution.A constitutional review is particularly advisable in the case regarding judgments of the ECtHR. They are indeed a tool by means of which the ECHR constitutes a living instrument. Thus, the probability of violating constitutional boundaries is higher than in the case of an ordinary international agreement.The consequence of this phenomenon in Poland is the activation of a review mechanism, such as that allowed by the existing legal system. It is a constitutional control of judgements of the ECtHR, although only in the formula of control of norms on which the judgement is based.In ongoing practice, the CT has made such a control twice, in the case ref. no. K 6/21 and K 7/21. And twice the CT decided that norms derived by judgements of ECtHR from art. 6 ECHR, are contrary to the Constitution. Poland has not executed judgments of the ECtHR based on unconstitutional norms.

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