TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Here we go. Thank you.
AP2 (Applicant): I would like to thank the members of the court for their very acute questions.
AP2 (Applicant): First, I refer to Judge Sabato's questions.
AP2 (Applicant): Judge Sabato noted that the construction of Article 187 of the Constitution of Poland does not provide expressly for a particular way for a judge member to be elected.
AP2 (Applicant): And that is, of course, true.
AP2 (Applicant): But when we try to establish norms of the Constitution, we don't just read the text.
AP2 (Applicant): We seek the norm through jurisprudence, through lengthy practice, and through the filter of the intentions of the authors of the Constitution.
AP2 (Applicant): So using all these methods of interpretation, which were referred to today, including also by Judge Sabato.
AP2 (Applicant): And I would state that the norm is that we derive through the filter of constitutional aki, of jurisprudence of the court, and of the practice of the state authorities over the past 30 years.
AP2 (Applicant): That norm, so Article 187 read through that practice over 30 years, leads us to the conclusion that the actual norm requires that the judges be elected by judicial community, not by the parliament.
AP2 (Applicant): That is further supported by the very purpose of the presence of these 15 judges in the NCJ, which is reflected in the intention of the founders of the preparatory works of the Constitution.
AP2 (Applicant): I made reference earlier today to the roundtable discussions following the fall of communism.
AP2 (Applicant): It was then that these discussions started and came to fruition upon the completion of the drafting of the Constitution.
AP2 (Applicant): It was during that time, and this was reported in a recent article by former first president of the Supreme Court, Adam Szczembosz, the founders introduced that set of 15 judges so that parliament would have a minority in the NCJ.
AP2 (Applicant): And that is why parliament was specifically given a set number of representatives to be chosen by the lower house and the upper house of parliament to sit in the NCJ.
AP2 (Applicant): And they were specifically allotted that number, and that number was smaller than the 15 number judges.
AP2 (Applicant): The intent was for the judicial community to have a majority selected from amongst the judges by the judges.
AP2 (Applicant): So this body would not be politically controlled and would in fact be able to serve the independence of the judiciary.
AP2 (Applicant): That would not be the case if these 15 people were elected, whether they be judges or not, by the parliament.
AP2 (Applicant): That gives parliament control over the judiciary, which is exactly contrary to the very nature of this constitutional body.
AP2 (Applicant): Judge Kuris asked about the Article 6 complaint and there being no national legal provision for exclusion and asked whether Article 13, do we have a chance of challenging this violation before a court?
AP2 (Applicant): And was there a remedy available or not?
AP2 (Applicant): If I understood Judge Kuris' question correctly, our reasoning was extremely simple.
AP2 (Applicant): It was extremely simple.
AP2 (Applicant): To put it short and in human terms, there was nothing Mr. Jan Janda could do to remedy his situation domestically.
AP2 (Applicant): He could not access a court and he could not access the constitutional tribunal.
AP2 (Applicant): Now, he could not access a court because there was no provision under statute allowing him to do so.
AP2 (Applicant): His claim had no reflection in procedural laws under administrative or civil law, labour disputes that would give him access to a court.
AP2 (Applicant): So that could not be considered effective access.
AP2 (Applicant): The government seems to suggest that he should have tried to access the court only to be rejected.
AP2 (Applicant): Well, the government is really expecting the applicant to perform some legal donkey hotari.
AP2 (Applicant): Access to a court under Article 6 means effective access to a court, not a facade whereby we know there is no legal access, but we do it anyway.
AP2 (Applicant): That cannot be reasonably expected of any applicant.
AP2 (Applicant): Now, he had no access to a constitutional court.
AP2 (Applicant): I think there is a great misunderstanding in this case in the communication of the government, which seems to equate an individual constitutional complaint with an application which can be filed by a constitutional body for abstract constitutional control.
AP2 (Applicant): These are two separate avenues by which constitutional proceedings are initiated.
AP2 (Applicant): Constitutional review proceedings are initiated.
AP2 (Applicant): Now, the first and only mechanism available to any individual, including Mr.
AP2 (Applicant): Young, that is the constitutional complaint.
AP2 (Applicant): That or Scarga in Polish, that constitutional complaint is only available if there is a decision or a judgment issued, which we believe is issued for the applicant believes is issued on the grounds of an unconstitutional law.
AP2 (Applicant): There was no such decision.
AP2 (Applicant): There was no such judgment in this case.
AP2 (Applicant): So Mr.
AP2 (Applicant): Grenda had nothing to base his constitutional claim complaint on.
AP2 (Applicant): There was no decision or judgment from which the three month deadline would start running for him to file a constitutional complaint because no decision or judgment was made.
AP2 (Applicant): He didn't even receive a letter stating that his term had elapsed.
AP2 (Applicant): This was strictly done Xlegge and an act, a normative act of law passed by Parliament does not constitute a decision or a judgment which initiates the term during which an individual may file a constitutional complaint.
AP2 (Applicant): So that access, that remedy was not available to him.
AP2 (Applicant): Now, the government spends a lot of time in the written pleadings and today referring to an abstract application to the court to the court constitutional tribunal.
AP2 (Applicant): Well, that's, of course, is a legitimate mechanism, but it is not a mechanism that can be used by any individual.
AP2 (Applicant): It is only the power of very specific constitutional bodies.
AP2 (Applicant): The Human Rights Ombudsman, the prosecutor general, the first president of the Supreme Court and the NCJ.
AP2 (Applicant): However, the NCJ as a body, as a power can use that abstract application to the constitutional court.
AP2 (Applicant): Not an individual who happens to be a member of the NCJ in a case concerning his rights and freedoms.
AP2 (Applicant): Now, even if we accept that a member might have influence on that, there is a difference between an individual's rights and that the pursuit of that individual's vindication of those rights before a constitutional court and an abstract application which can't concern that individual.
AP2 (Applicant): And he had no power, even if he was a member of the NCJ, no power to make sure that the NCJ would file such an abstract application.
AP2 (Applicant): This seemed, but even more important.
AP2 (Applicant): even more important.
Robert Spano (JudgeP): Mr. Pietrzak, you have two to three more minutes, please.
AP2 (Applicant): I will follow this up. More importantly, he was no longer a member of the NCJ at the critical time,
AP2 (Applicant): so he had no influence on whether the NCJ would or would not file such an abstract application.
AP2 (Applicant): Judge Kuris asked a question regarding central standards of interpretation, constitutional interpretation, and referred to a very specific statement made by the Constitutional Court. The Constitutional Court in the current composition does not agree with the constitutional
AP2 (Applicant): judgment of 2507, and asked which standard of interpretation applies. I'll say this bluntly.
AP2 (Applicant): No standard of interpretation applies. There was no legitimate judicial standard of interpretation,
AP2 (Applicant): no legal reasoning underlying the statement. This was a political statement which
AP2 (Applicant): demonstrated what we've been saying from the beginning of this case, that the Constitutional Tribunal, including in the case of 2017, was politically motivated and made its decision upon political criteria, not judicial ones. Now, Judge Pavli asked which universal rule of law can
AP2 (Applicant): it be applied. In short, no one-size-fits-all standard applies everywhere, but the Venice
AP2 (Applicant): Commission in 2016 created a rule of law checklist. One of the benchmarks was access to justice,
AP2 (Applicant): which includes independence and impartiality of the judiciary. This is supported by the famous
AP2 (Applicant): eight principles of the rule of law authored by Lord Bingham, which include the requirements that adjudicative procedures must be provided by the state and should be fair, and that the rule of law requires that the state comply with its obligations in international law, including the European Convention on Human Rights. Finally, Judge Spano made reference to the December 5th
AP2 (Applicant): judgment of the Supreme Court and the resolution of the three chambers of the Supreme Court of 23rd of January, if I remember correctly, and referred to the clash between the Constitutional Tribunal, the Supreme Administrative Court and the Supreme Court.
AP2 (Applicant): Mr. President, this clash exists, but it is a clash between legitimate judgments of the Supreme Court
AP2 (Applicant): and a legitimate resolution of the three combined chambers of the Supreme Court, which undoubtedly constitute courts and tribunals as understood in the Convention, which are in line, in harmony, which this Court seeks to support with the Court of Justice of the European Union rulings, and in contrast with politically motivated decisions made by a politicized Constitutional Tribunal, made with the participation of double judges who delegitimize the Court. I see no clash between judgments. I see legitimate judgments on the one hand,
AP2 (Applicant): and a politicized decision of a body which does not have the necessary attribute of independence to be considered a court. To close up, Mr. President, I would just like to invoke
AP2 (Applicant): the oath that Mr. Grzenda made upon becoming a judge. I solemnly vow to serve the Republic of
AP2 (Applicant): Poland faithfully as an Administrative Court judge, to defend the laws, to fulfill my judicial obligations scrupulously, to administer justice in accordance with the letter of the law, and in an unbiased manner, in accordance with my conscience, to keep legally protected secrets, and to act according to the principles of dignity and honesty. It is this oath that led Mr. Grzenda
AP2 (Applicant): to serve as a member of the NCJ. It is this oath that brought him here before the Grand
AP2 (Applicant): Chamber of the European Court of Human Rights. Mr. Grzenda is here serving Poland faithfully,
AP2 (Applicant): seeking to defend its most important laws, including the Constitution and the European Convention on Human Rights, both of which guarantee him access to a court as part of his fair trial rights and an effective remedy to violation of his rights, both of which are founded on the principle of the rule of law. So we humbly request today that the Court support
AP2 (Applicant): Mr. Grzenda's defense of these fundamental democratic values and rule in favor of the
AP2 (Applicant): applicant, determining that the Polish state did in fact violate his rights under Article 6, Section 1, and Article 13 of the European Convention on Human Rights. Thank you.
Robert Spano (JudgeP): Thank you very much Mr. Pietrzak. The third party intervener Mr. Filipek, you have two minutes to answer a particular question directed at you, please.
TP1 (ThirdParty): as we understood there was the only single question and I will answer it in three parts.
TP1 (ThirdParty): What is the situation of the current Constitutional Tribunal provides a partial answer.
TP1 (ThirdParty): We already know there are judges duplicates, persons who were unlawfully appointed to the court.
TP1 (ThirdParty): There are manipulations with the judicial panels, especially in the case that the government relies on K5 17. There were two judges exchanged. There were two judges exchanged without providing any
TP1 (ThirdParty): grounds for that arbitrary decision of the president. The clash that President Spano
TP1 (ThirdParty): mentioned is not only between the Constitutional Tribunal of today, but between the Supreme Court, Administrative Court and also the Constitutional Tribunal of before.
TP1 (ThirdParty): The today's Constitutional Tribunal actually departs from a key Constitutional of Poland.
TP1 (ThirdParty): I would provide four short grounds why the judgment that the government is right on should not be followed on the substance. First, the methods of election of judges members was a
TP1 (ThirdParty): logical consequence of the functions assigned to the council. It was to safeguard the judiciary
TP1 (ThirdParty): from the influence of the parliament and the executive. The adoption of the current method
TP1 (ThirdParty): makes these functions devoid of purpose. It's not possible to carry out this function.
TP1 (ThirdParty): Secondly, the parliament's influence on the council is expressly regulated in the Constitution.
TP1 (ThirdParty): The parliament elects four members of the same and two members of the senate. So expressly the
TP1 (ThirdParty): Constitution provides how the parliament influences the composition. It would be illogical
TP1 (ThirdParty): to assume that now there should be any other forms of influence provided in the ordinary legislation. But mainly the arguments are wrong because attempting to rely on the literal
TP1 (ThirdParty): interpretation disregards systemic and functional interpretation, especially when we interpret Constitution we should make reference or we should base the argument on systemic principles.
TP1 (ThirdParty): So the historic interpretation supports the systemic and functional one because if we remember that the National Council of the Judiciary was negotiated...
Robert Spano (JudgeP): Mr. Filipek, please may I ask you to sum up your answer? Thank you.
TP1 (ThirdParty): Okay, so let me give you just the answer to the question, what is the purpose of the Constitutional Tribunal departing from the previous judgment?
TP1 (ThirdParty): Two purposes, first, to protect the compositions of the bodies, like the Constitutional Tribunal itself, like the two newly created chambers of the Supreme Court, like the National Council of the Judiciary.
TP1 (ThirdParty): And second purpose is to deprive of any effectiveness of any judgment that does not please the government.
TP1 (ThirdParty): And this concerns, of course, the Supreme Court.
TP1 (ThirdParty): This concerns the judgments of the Court of Justice of the European Union.
TP1 (ThirdParty): We could have seen it as far as the Aiken judgment and AP judgment is concerned.
TP1 (ThirdParty): And it also starts with the judgments of this tribunal, European Court of Human Rights.
TP1 (ThirdParty): Following the Xerof Law judgment, the president of the current Constitutional Tribunal said that the European Court of Human Rights, without a legal basis and beyond its competence, issued a judgment on the composition of the Polish Constitutional Tribunal and the judgment does not have any legal effect.
Robert Spano (JudgeP): I thank the parties for their submissions and their answers to the court's questions.
Robert Spano (JudgeP): The court will now deliberate on the admissibility and merits of the case.
Lech Garlicki (JudgeP): I declare open the public hearing on the admissibility and the merits in the cases of Ewaida versus the United Kingdom, Chaplin versus the United Kingdom, Ladele versus the United Kingdom, and McFarlane versus the United Kingdom.
Lech Garlicki (JudgeP): The cases were lodged with the court under Article 34 of the Convention by Ms. Ewaida
Lech Garlicki (JudgeP): on 10th of August, 2010, Ms. Chaplin on 29th September,
Lech Garlicki (JudgeP): 2010, Ms. Ladele on 3rd September, 2010,
Lech Garlicki (JudgeP): and Mr. McFarlane on 24th June, 2010.
Lech Garlicki (JudgeP): The applicants are all British nationals.
Lech Garlicki (JudgeP): The applications were allocated to the fourth section of the court pursuant to Rule 52.1 of the Rules of the Court.
Lech Garlicki (JudgeP): All applications were communicated to the government on 12th April, 2011.
Lech Garlicki (JudgeP): The governments are represented by their agent, Ms. Sornarajah,
Lech Garlicki (JudgeP): assisted by Mr. Eadie, counsel, and Mr. Squires, counsel,
Lech Garlicki (JudgeP): and by Ms. Lehrer, Mr. Leslie, and Mr. Ford, advisors.
Lech Garlicki (JudgeP): Ms. Eweida is represented by Mr. James Dingemans, counsel,
Lech Garlicki (JudgeP): assisted by Mr. Ellis, counsel, and Ms. Moore, counsel,
Lech Garlicki (JudgeP): and by Mr. Gregor Puppinck, advisor.
Lech Garlicki (JudgeP): Ms. Ladele is represented by Ms. Rose, counsel,
Lech Garlicki (JudgeP): assisted by Mr. Jaffey, counsel, and Mr. McCrudden, counsel,
Lech Garlicki (JudgeP): and by Mr. Jones and Mr. Webster, advisors.
Lech Garlicki (JudgeP): Ms. Chaplin and Mr. McFarlane are represented
Lech Garlicki (JudgeP): by Mr. Diamond, counsel, assisted by Mr. Coleman,
Lech Garlicki (JudgeP): counsel, Mr. Hmelik, counsel, and Ms. Andrea Williams,
Lech Garlicki (JudgeP): and Mr. Pasha and Mr. Marsh, advisors.
Lech Garlicki (JudgeP): The applicants, Ms. Chaplin, Ms. Ewaida, and Mr. McFarlane
Lech Garlicki (JudgeP): are also present.
Lech Garlicki (JudgeP): I welcome the representatives in the name of the court.
Lech Garlicki (JudgeP): Having consulted the agent of the government and the representatives of the applicants, I have determined the order of addresses as follows.
Lech Garlicki (JudgeP): Mr. Eadie for the government will speak first,
Lech Garlicki (JudgeP): and then Mr. Dingemans, Ms. Rose, and Mr. Diamond
Lech Garlicki (JudgeP): will speak for the applicants.
Lech Garlicki (JudgeP): Both parties will have 45 minutes, which means that the representatives of the applicants will have 15 minutes each to this first presentation before the court.
Lech Garlicki (JudgeP): I call Mr. Eadie.
GR1 (Government): Mr President, members of the court, in a free and democratic society, everyone has the right to express and to manifest their beliefs, including to display religious symbols or to live out their beliefs on family values motivated by the teachings of faith.
GR1 (Government): But these are not absolute rights, or rights without limits.
GR1 (Government): The Convention is, as ever, sensitive to the rights and interests of others, including the general interests of the community.
GR1 (Government): And where those interests are in play, as in these cases, balances need to be struck so as to ensure that proper respect is accorded to the variety of interests.
GR1 (Government): Precisely where and how those balances are struck are for each contracting party to assess, according to its particular local history, culture and conditions.
GR1 (Government): A wide margin is accordingly to be afforded.
GR1 (Government): The Government submits that a fair and compatible balance is struck by domestic law, and was struck in these cases.
GR1 (Government): These four linked cases, at their core, raise questions about the rights and the limits to the rights of employees to force their employers to alter employment conditions so as to accommodate the employees' religious practices.
GR1 (Government): My submission will be that the Court's jurisprudence is clear and consistent.
GR1 (Government): It is to this effect.
GR1 (Government): The Convention protects individuals' rights to manifest their religion outside their professional sphere.
GR1 (Government): However, that does not mean that in the context of his or her employment, an individual can insist on being able to manifest their beliefs in any way they choose.
GR1 (Government): Other rights, other interests are in play and are to be respected.
GR1 (Government): This notion is reflected in the case law, first at the level of determining whether there has been an interference with Article 9 rights at all.
GR1 (Government): It is also reflected, even if there has been an interference, in the requirement that any such interference, as a result of employment conditions, must have a reasonable and objective justification.
GR1 (Government): Moreover, in cases involving the rights and obligations of private employers and employees, domestic law must, and I will submit plainly does, enable that issue to be considered with care by the domestic courts.
GR1 (Government): In each of the four applications before you, the domestic courts determined that the conduct of the employers was justifiable.
GR1 (Government): I will examine in a moment the key facts that led them to that conclusion.
GR1 (Government): My submission to this Court is that there is no basis for interfering with that conclusion, particularly given the subsidiary role of the Court in an area in which local needs and conditions are likely to be critical and a wide margin of appreciation appropriate.
GR1 (Government): With that introduction, I start with the issue of whether or not Article 9 was engaged or interfered with.
GR1 (Government): This has two aspects in the present context.
GR1 (Government): First, Article 9 primarily protects personal beliefs.
GR1 (Government): Protection is also accorded to religious practice, as enumerated in that article.
GR1 (Government): But it is not every act or form of behaviour that falls within the protective sphere of Article 9.
GR1 (Government): Acts are protected only if they are indeed a practice, and moreover if the practice is generally recognised as such by the religion concerned.
GR1 (Government): The description from the Court's constant jurisprudence refers to acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form.
GR1 (Government): That's a quote from the commission case in Cey and the UK, which has been consistently repeated by the Court in Pichon, in Kalach, in Kuznetskov and Russia, to name but a few.
GR1 (Government): This limit on the scope of the protection of Article 9 has a consequence.
GR1 (Government): It was put in this way in Kalach at paragraph 27, that because Article 9 does not protect every act motivated or inspired by a religion or belief, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.
GR1 (Government): That wording is also repeated by the Grand Chamber in Sahin and Turkey at paragraph 105.
GR1 (Government): These principles shaped the Court's judgement in Pichon.
GR1 (Government): The applicants were pharmacists.
GR1 (Government): They had a sincere religious belief that precluded them from dispensing contraceptives.
GR1 (Government): The Court held that their prosecution for refusing to sell contraceptives did not breach Article 9, and stated as follows.
GR1 (Government): As long as the sale of contraceptives is legal and occurs on medical prescription, nowhere other than in a pharmacy, the applicants cannot give precedence to their religious belief and impose them on others as justification for their refusal to sell such a product, since they can manifest those beliefs in many ways outside the professional sphere.
GR1 (Government): How, then, does this first set of principles apply in these cases?
GR1 (Government): Ms Liddell's and Mr Macfarlane's cases have very close parallels with Pichon.
GR1 (Government): Indeed, the reasoning in the passage just quoted applies equally to them.
GR1 (Government): In the context of an employer-employee relationship, the principles articulated in Pichon mean that employers cannot be forced to accommodate the religious beliefs of employees who do not wish to provide services to the public or a section of the public.
GR1 (Government): So far as Ms Liddell is concerned, it is only possible to enter civil partnerships through a civil partnership registrar.