06 May Irregularities in the appointment of judges of the Constitutional Court have led to a violation of the right to a tribunal established by law

In the case of Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18, 07.05.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights as regards the right to a fair hearing, and a violation Article 6 § 1 as regards the right to a tribunal established by law.

The case concerned attempts by the applicant company to get compensation from the State for damage to one of its products (turf) caused by wild boar and deer. In 2012 it sued the State Treasury for game damaging its turf in the autumn of 2010 and spring of 2011. In particular, it had sued in 2012 but had been awarded only 60% of what it had sought. It had been unable to get satisfaction through the domestic courts. Although it had asked on several occasions that the question of the constitutionality of the relevant law be referred to the Constitutional Court, it had been turned down by the first-instance and appellate courts. Ultimately it had lodged a constitutional complaint that the Constitutional Court had declared inadmissible in 2017. The bench that had heard that case had contained Judge M.M., who had been elected by the new Sejm (the lower parliaments house) despite his seat having already been filled by the old Sejm. 

The applicant company argued that the election in December 2015 of three judges, including Judge M.M., to the Constitutional Court in an allegedly irregular procedure had infringed its right to a tribunal established by law. 

The Court found in particular that – despite the applicant company’s repeated raising of the matter – the domestic courts had not answered its arguments that the law applied in its case had been incompatible with the Constitution and, consequently, had failed in their duty under Article 6 § 1 of the Convention to provide reasoned decisions, denying the applicant company a fair trial.

The Court found that the President of Poland had refused to swear in three judges who had been legally elected in October 2015 by the old Sejm. It also found that the new Sejm had elected in December 2015 three new judges, including Judge M.M., to seats that had been already filled. The Court saw no reason to disagree with the Constitutional Court’s findings that there had been irregularities amounting to manifest breaches of domestic law in the appointment of those judges. It found that the actions of the legislature and executive, in particular the authorities’ failure to abide by the relevant Constitutional Court judgments, was linked to their challenging – with a view to usurping – the Constitutional Court’s role as the ultimate interpreter of the Constitution and the constitutionality of the law. It thus considered that the applicant company had been denied its right to a “tribunal established bylaw” owing to the irregularities in the appointment of Judge M.M. specifically. There had therefore been a violation of the applicant company’s rights in that regard. 

References from the official website of the European Court of Human Rights