On 7 May 2021, the European Court of Human Rights (ECtHR) issued a landmark judgment in the case of Xero Flor v. Poland, a case concerning the lawfulness of the composition of the Polish Constitutional Tribunal. The Strasbourg Court ruled that the composition of the Tribunal, which includes judges who occupy seats already filled, so-called “judge-doublers,” does not meet the criterion of “a court established by law”. Therefore, it follows that hearings and judgments by the Tribunal, as it is composed now, violate the right to fair trial as protected by article 6 of the European Convention on Human Rights (ECHR).

This is the first judgment of the ECtHR directly assessing the compliance with international law of the changes in the judiciary forced through by the Law and Justice party (Prawo i Sprawiedliwość or PiS), the dominant party in the ruling coalition. The ruling confirmed that the Polish Constitutional Tribunal cannot be considered to constitute a court anymore. Given the recent controversial judgments of the Polish Constitutional Tribunal in relation to abortion and the Polish Human Right Ombudsman, this is, to put it mildly, an explosive judgment. 

BACKGROUND TO THE CASE

The issue with the composition of the Polish Constitutional Tribunal dates back to 2015, when the then newly elected President of Poland, Andrzej Duda, refused to swear in three judges who had been legally elected in October 2015 by the outgoing party. Moreover, the incoming PiS party, using irregular procedure, elected new judges to seats that had already been filled. This signalled the start of the PiS’s unconstitutional dismantling of the Polish judiciary.

The case before the ECtHR concerned a Polish company that produces rolled turf, Xero Flor, which in 2012 sought compensation from the Polish government after its turf was damaged by wild boars and deer. The company was awarded only 60% of the damages sought. Xero Flor’s request to refer the constitutionality of the Polish Hunting Act [in Polish] (which was the basis for the compensation ruling) to the Constitutional Tribunal was turned down by both the court of first instance and the Appellate Court. Ultimately, Xero Flor lodged a constitutional complaint, but it was declared inadmissible by the Constitutional Tribunal in 2017. One of the Tribunal’s judges who dismissed the case, the vice-president of the Tribunal, Mariusz Muszyński, had been illegally appointed in 2015 to fill a seat already occupied by another legally-appointed judge.

Subsequently, Xero Flor brought its grievance before the court in Strasbourg. It argued firstly that the lower courts had wrongly refused to refer its constitutional doubts to the Constitutional Tribunal and secondly that the composition of the Tribunal’s bench, which considered the later complaint, was itself unconstitutional, thereby violating the company’s article 6 ECHR right to a fair trial.

JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS

The ECtHR found that the Polish courts had failed in their duty under article 6 to provide reasoned decisions for rejecting the constitutional application and thereby denied Xero Flor a fair trial. Furthermore, the ECtHR adjudged that the actions of the Polish authorities in appointing Muszyński, who had been on the bench in this case, meant that the Tribunal that tried the case had not been a “tribunal established by law”. Xero Flor was thus denied its right to hearing by a “tribunal established by law” as guaranteed under article 6. The ECtHR also ruled that Poland was to pay the applicant company 3,418 Euros in costs and expenses.

The judgment did not come as a surprise to many who have witnessed the dismantling of the rule of law by PiS in Poland. In many ways the ruling confirmed what European Union (EU) institutions had previously declared: the unlawfully composed and politically captured Polish Constitutional Tribunal can no longer effectively perform its function as a key democratic institution. However, despite years of dialogue between the EU and the Polish authorities with respect to the independence of judiciary and other violations of the rule of law, the situation in Poland is going from bad to worse. Nevertheless, one would hope that this judgment will finally encourage the EU institutions to take a stronger line of action in the matter.

POWERFUL MESSAGE TO POLISH AUTHORITIES 

This landmark judgment should send a powerful message to the Polish authorities. First of all, under normal circumstances, pursuant to article 9 of the Polish Constitution, a judgment of the ECtHR is binding on Polish authorities. Therefore, if Poland were a state respecting the rule of law, these unlawfully appointed judges should be removed and any judgments issued by the Tribunal composed of “judge-doublers” should be void.

However, the president of the Constitutional Tribunal, Julia Przyłębska, indicated the contrary. In a press conference after the ECtHR judgment, she said that [in Polish] “the ECtHR has issued a judgment without a legal basis and outside its competences”. Przyłębska added that “an interference by the ECtHR with the powers of the Sejm of the Republic of Poland in the area of electing judges of the Constitutional Tribunal […] has no effect in the Polish legal order”. Similar comments were made by Elżbieta Witek, Marshal of the Sejm, who said that [in Polish] the ruling of the court “is a dangerous precedent and unlawful interference with the sovereignty of the Polish State”. 

It is not the first time the representatives of the Polish government and the president of the Tribunal have publicly refused to recognise the validity of international judgments. Previously, Poland openly claimed that the European Court of Justice acted ultra vires, and said that the EU would lack the competence to enforce EU rule of law against it. Consequently, one expects the ECtHR judgment in the Xero Flor case to be similarly ignored by the Polish government.

Anna is focused on becoming a Barrister specialising in Public Law and to this end will be part of the second intake for the BTC at the ICCA in Jan. 2021. She holds a first class honours Bachelor of Laws degree from Middlesex University, and honours Master of Laws in US and Global Legal Studies degree with certificate in Public Law from Case Western Reserve University in Ohio, United States of America. Anna is dedicated to pursuing a legal career focused on promoting democracy, human rights and justice for all, ensuring that elected leaders, as well as all citizens, comply with and are afforded the protections guaranteed by the rule of law.

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