What Should and What Will Happen After Xero Flor

On 7 May 2021, the European Court of Human Rights issued a judgment in the case concerning irregularities in the personal composition of the Polish Constitutional Tribunal (the case of Xero Flor w Polsce sp. z o.o. v. Poland). The ECtHR found a violation of “the right to a tribunal established by law” due to fact that the decision on the discontinuation of the proceedings concerning a constitutional complaint filed by a Polish company was issued by the Constitutional Tribunal with the participation of a person who was unlawfully elected to the position of judge. The said judgment is the first ruling of an international body finding that the irregularities in the functioning of the Polish Constitutional Tribunal violate international law.

In this short post, I would like to focus on the consequences of the ECtHR judgment and the best possible ways of implementing it. I will also analyse possible actions taken by the Polish government in response to it. The facts of the case and the reasons for the Court’s ruling will be presented only briefly. Moreover, I will concentrate only on those parts of the judgment which concerned the violation of the right to a tribunal established by law.¹⁾

Judgment of the ECtHR

The ECtHR, having established that, despite specificity of the Polish Constitutional Tribunal, Article 6 ECHR was applicable to the case at hand, had to most importantly determine whether the discontinuation of the proceedings concerning the constitutional complaint by the Constitutional Tribunal adjudicating in a bench which included one person elected in December 2015, resulted in a violation of the right to a tribunal established by law.

In this regard, the Court referred to the test set out in the recent precedent Grand Chamber’s judgment in the case of Guðmundur Andri Ástráðsson v. Iceland (§§243-253).

The ECtHR had no doubts that the election of three persons in December 2015 was illegal. The Court based its reasoning on the judgment of the Constitutional Tribunal of 3 December 2015 which concerned the law on the basis of which the Sejm of previous term elected five judges on the seats which became vacant in November (3 judges) and December 2015 (2 judges). The Tribunal ruled that the challenged law was unconstitutional only insofar as it concerned two December judges. It may be therefore implied from the ruling that the new Sejm should not have elected all five judges but only two to the seats which were previously filled on the basis of an unconstitutional legal norm. The status of the three other judges elected in December 2015 should be questioned as their predecessors were elected on a legal basis which was found to be consistent with the Constitution. Thus, the election of three persons by the new Sejm was unlawful because they were elected to seats already lawfully occupied.

Furthermore, the ECtHR stated that the violations of the law that occurred in the election of the persons who took part in issuing the decision in the applicant’s case were so serious that the very essence of the right to be heard by a court established by law was violated. In this context, the Court noted that the breach “concerned a fundamental rule of the election procedure, namely the rule that a judge of the Constitutional Court was to be elected by the Sejm whose term of office covered the date on which his seat became vacant.” The ECtHR also drew attention to the violation by the President of the obligation to take the oath from lawfully elected judges. These violations have not been remedied: neither the Sejm nor the President complied with the judgment of the Constitutional Tribunal. What is more, later on, the Sejm enacted laws aimed at forcing the then-President of the Constitutional Tribunal to include incorrectly selected persons in adjudicating benches. Moreover, some judgments of the Constitutional Tribunal were not published by the Prime Minister.

What should happen…

The implementation of ECtHR judgments usually involves individual and general measures. The former are related to remedying the effects of the violation of the Convention towards the applicant, while the latter are aimed at removing the causes of the breach so as to prevent similar violations in the future.

As regards the individual measures, the ECtHR awarded the applicant company only the reimbursement of costs and expenses incurred before the Court.

The Court did not provide any guidelines as to the general measures which should be taken by the Government. This does not mean, however, that no action is needed – the Polish authorities are still obligated to eliminate the cause of violation of the Convention.

In the case at hand, the violation of the Convention was caused by the fact that the Constitutional Tribunal issued a ruling with the participation of an unlawfully elected person. Notably, the judgment of the Constitutional Tribunal was issued after the examination of the constitutional complaint – in such a situation there is a sufficiently close connection between the subject matter of the proceedings before the Constitutional Tribunal and the protection of the complainant’s civil rights. It seems that such a relationship would also occur in the case of legal questions, even if in that case the proceedings before the Constitutional Tribunal are not initiated by an individual. However, Article 6 ECHR certainly will not be applicable in cases initiated by abstract motions, for example by the Ombudsman. The bodies authorised to submit such motions to the Constitutional Tribunal do not, after all, exercise their right to a fair trial, but use their powers under the Constitution. In addition, the proceedings before the Constitutional Tribunal do not serve the protection of their own rights, but to protect the freedoms and rights of other people or, more broadly, to protect public interest. However, one cannot exclude that the binding power of rulings of the Constitutional Tribunal with participation of unlawfully elected persons will be questioned in practice.

It follows that to implement the Court’s ruling, domestic authorities should take appropriate measures to prevent unlawfully elected person from adjudicating in the Constitutional Tribunal – at least with regard to constitutional complaints and, as may be argued, legal questions. However, it would be optimal to completely exclude the indicated person from adjudication in the Constitutional Tribunal – even in cases which do not fall within the scope of Article 6 ECHR. Otherwise, the crisis around the Constitutional Tribunal would not be fully resolved and it would be possible to submit new applications to the Court or to challenge the situation in the Constitutional Tribunal from the perspective of EU.

It must be underlined that the ECtHR judgment, on its own, does not remove the said person from his position in the Constitutional Tribunal. Therefore, all relevant actions must be taken by the competent domestic authorities. The ECHR does not indicate who and what specific steps should be taken – in my opinion, from the perspective of the Convention, it would be sufficient, if the indicated judge was prevented from adjudication, e.g. by a decision of the President of the Constitutional Tribunal.

In this context two additional problems arise. The first one concerns whether the ruling in question also affects the situation of the two other persons whose election is questioned. Let us recall that two of the three persons elected by the Sejm in December 2015 in violation of the Constitution died before the end of the nine-year term of office, and the Sejm has already elected their successors. However, the status of these successors may also be questioned. It can be argued that the death of their predecessors did not result in a vacancy in the Constitutional Tribunal – we still have three lawful judges, from whom the President did not take the oath and whose term has not been legally terminated. Therefore, in my opinion the measures to implement the judgment in the Xero Flor case should also apply to the other two persons.

The second problem concerns the questions as to whether a full implementation of the judgment necessitates that, along with preventing unlawfully elected persons from adjudication in the Constitutional Tribunal, the three judges lawfully elected in 2015 should be allowed to take the oath before the President. Theoretically, it may seem that this would not be absolutely necessary for the implementation of the judgment in question. As I have already pointed out, the violation of Convention resulted from the fact that unlawfully elected persons participated in adjudication, and therefore exclusion of these persons from adjudicating benches, at least in cases of complaints and legal questions, should be sufficient to prevent the emergence of similar violations in future. However, taking the oath from the three lawful judges may be considered a constitutional obligation of the President, and moreover a situation in which only 12 judges are entitled to adjudicate may adversely affect the effectiveness of the work of the Constitutional Tribunal. It could be also argued that the failure to take the oath from properly elected judges violates the rights of these judges, but in this situation the individual applications to the Court should have been submitted by these judges themselves.

Moreover, I believe that the judgment of the ECtHR does not lead to an automatic invalidation of all judgments issued with participation of unlawfully elected persons and it does not imply a general obligation to ensure, either to the applicant company or to other entities in a similar situation, the possibility of reopening the proceedings before the Constitutional Tribunal. Regardless of the fact that in the light of the Polish Constitution the Constitutional Tribunal’s judgments are final, it is worth noting that in Ástráðsson v. Iceland the ECtHR indicated that the violation of the right to a court established by law found in that case “may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Icelandic law.” (Ástráðsson, §314). Therefore, if irregularities in the appointment of judges of ordinary courts do not lead to an absolute obligation to reopen the proceedings, it seems that also failure to provide the possibility of reopening proceedings before the Polish Constitutional Tribunal will not constitute a violation of the Convention.

… and what will happen

Unfortunately, the initial reactions of the politicians of the ruling party ²⁾ as well as the President of the Constitutional Tribunal³⁾ strongly suggest that they have no intention of implementing the ECtHR judgment. It is therefore worth to consider what approach would the Government take towards the judgment.

First, the Government could request the referral of the case to the Grand Chamber under Article 43 ECHR. However, in my opinion it is unlikely that such request would be accepted. That is because the judgment, with regards to finding of violation of Article 6, was issued unanimously, what shows that there were no major controversies between the ECHR judges. Moreover, just six months ago, the Grand Chamber issued a precedent ruling concerning the right of access to a court established by law. Therefore, there is no need to clarify case law.

Second, the government could completely ignore the ruling of the ECtHR. However, it is questionable whether such a scenario would be rational in the discussed case, given the risk of inflow of further similar applications to the ECtHR and the influence that the judgment may have on the case law of Polish courts and the CJEU.

Third, I would not completely rule out the possibility that the Government would attempt to challenge the legality of judgment of the ECtHR via a motion to the Constitutional Tribunal. In fact, already in 2020 Mariusz Muszyński, one of the persons elected to the Constitutional Tribunal in December 2015 whose status is questioned, wrote that the Constitutional Tribunal has tools to deal with ECtHR and CJEU rulings issued ultra vires. Of course, the Constitutional Tribunal does not have the power to review judgments of the ECtHR (or of any other court), nevertheless it sometimes issues judgments aimed at invalidation of certain interpretation of law. Moreover, in March 2021, the Prime Minister submitted a motion to the Constitutional Tribunal concerning the constitutionality of, among others, Article 19 § 1 TEU in conjunction with Article 2 TEU “understood as authorising domestic court to review independence of judges appointed by the President and to review resolutions of the National Council of Judiciary (NCJ) concerning submission of a motion to the President to appoint a judge”. I can therefore imagine that some officials would submit a motion to declare that, for example, Article 6 of ECHR insofar as it is applicable to the proceedings before the Constitutional Tribunal is inconsistent with the Constitution. However, such an attack on the competences of the ECtHR could be difficult to present to the public, given the fact that the Court enjoys the trust of a large part of Polish society, which is reflected by a high number of individual applications submitted every year by Polish citizens. Moreover, the question arises whether a hypothetical judgment of the Constitutional Tribunal stating that the ECHR or its interpretation is unconstitutional, will have any practical effects – from an international perspective, certainly not (with except to the negative impact on Poland’s reputation).

Further consequences of the ruling

However, in my opinion, the judgment of the Court may lead to important consequences even if it would not be fully implemented by the authorities.

The most obvious effect will be the possibility of submitting an individual complaint to the ECtHR by any person who found themself in a situation analogous to the applicant company in the discussed case. It is worth noting that to find a violation of Article 6, it is not necessary to prove that if the composition of the Constitutional Tribunal was correct, the ruling of the Constitutional Tribunal would be different. What matters only is (1) whether proceedings before the Constitutional Tribunal were decisive for civil rights of the applicant (see above) and (2) whether the ruling unfavourable to the applicant was issued by the Tribunal with the participation of an incorrectly selected judge. It cannot be ruled out that in the event of a large number of applications regarding the problem in question, the ECtHR would decide to issue a pilot judgment in which it would explicitly oblige the authorities to take specific actions to eliminate the causes of the violation.

Secondly, it can be expected that the ECtHR itself will take into account the judgment in the Xero Flor case when considering subsequent complaints filed by Polish citizens. For instance, in the case of Advance Pharma sp. z o.o. v. Poland (app. no. 1469/20),  the Court will have to decide whether the judges of the Supreme Court who were nominated for the appointment by the reorganised NCJ satisfy the requirements stemming from the right of access to tribunal established by law. One of the crucial issues there would be the question whether the reform of the National Council of Judiciary was consistent with the Constitution and international standards. In normal circumstances, the Government could argue that the law reforming the NCJ was reviewed by the Constitutional Tribunal which ruled that it was consistent with the Constitution and this could be a valid argument for the Court. However, the said judgment of the Tribunal was issued with the participation of one person whose legality of election is questioned. Even though it was not issued in the proceedings initiated by constitutional complaint or legal question, it may still not be treated by the Court as a strong point of reference.

Third, the Xero Flor ruling should also be noticed by EU bodies. It may induce the European Commission to submit a complaint against Poland to the CJEU under Article 258 TFEU with regards to the situation in the Constitutional Tribunal. The ECtHR gave a clear signal that the Constitutional Tribunal, despite its systemic specificity, is an important body from the perspective of international guarantees of the right to a court, and irregularities in its composition lead to the violation of these guarantees. Considering the importance of the Convention standards for the interpretation of the provisions of the Treaties and the Charter of Fundamental Rights, the interpretation adopted by the ECtHR can also be transferred to the EU. It would be all the more justified as the judgments of the Constitutional Tribunal may, after all, affect the rights and freedoms guaranteed by EU law.

Fourth, a possible failure to comply with the ECtHR’s judgment may induce courts to resort to the direct application of the Constitution and international law, including with priority over national statutes, without referring legal questions to the Constitutional Tribunal. Courts may argue that by submitting a legal question to a body composed of incorrectly elected persons, they themselves could, in a way, contribute to violation of the right of parties to a tribunal established by law and so they must resolve given issue autonomously.

Fifth and finally, one can also expect attempts to challenge any judgments of the Constitutional Tribunal issued in panels involving incorrectly elected persons. Various arguments could be used here. It may be for example argued that the principle of judicial independence (derived from the ECHR or EU law) would be violated if a court would be bound by a judgment issued by an unlawfully constituted body. Moreover, some judgments may be also questioned from the perspective of other provisions of the Convention. For instance, the applicant could argue that interference with his or her right to privacy undertaken on the basis of a provision which was modified by the virtue of judgment issued by the Constitutional Tribunal with participation of unlawfully elected persons or interpreted in accordance with such judgment was not carried out “in accordance with the law” as required by Article 8 § 2 ECHR. However, these issues are not that simple and in order to address them, one should also take into account, for example, the importance of the principle of legal certainty. Therefore, the Xero Flor judgment does not allow to provide a clear answer as to whether such a broader interpretation of the Convention would be permissible. There is, however, a scope for further litigation before the ECtHR with the aim of development of the standards in this area.

This post is based on my analysis which was published in Polish on 8 May 2021 on the “OKO.press” portal.