10 Mai 2021

The ECtHR Steps into the Ring

The Xero Flor ruling as the ECtHR’s first step in fighting rule of law backsliding

For the last two years, the fight for safeguarding the principle of the rule of law in Poland has been dominated by the ECJ’s case law. In this fight, the Luxembourg Court has landed some important blows with its judgments on the Commission’s infringement proceedings against the lowering of the retirement age for judges and, more recently, with its rulings in A.B. and Repubblika (discussion here and here). During this, the Strasbourg Court has mostly been sitting in the bleachers. Yet, with its Xero Flor judgment of 7 May, it strapped on its gloves, stepped into the ring, and boy did it strike.

In this crucial judgment, the ECtHR applied the three-step test it had set out in the Grand Chamber judgment of Guðmundur Andri Ástráðsson and applied it to the Polish Constitutional Tribunal. It concluded that this Tribunal, in its current composition, cannot be seen as a tribunal established by law. The decision will undoubtedly have major political and legal consequences.

The judgment

The Xero Flor case is a direct consequence of the political struggle that surrounded the appointment of five judges to the Polish Constitutional Tribunal at the end of 2015. The “original sin” in this story has been committed by the previous parliamentary majority (the seventh-term Sejm), which introduced an act that allowed it to fill all five positions, even though two of them would only become vacant after the 2015 general elections. The President, however, refused to accept the oath of these judges. After the elections, the newly composed parliament (the eighth-term Sejm) retaliated and passed a resolution that invalidated the five nominations of the previous parliament. Then, it appointed five entirely new judges, whose oath the President did accept.

The dispute was eventually brought before the Constitutional Tribunal itself. It essentially ruled that both the seventh and eighth-term Sejm had acted in violation of the Constitution. Nonetheless, even though the seventh-term Sejm was not in the position to fill the two positions that had only become available after the elections, it was its rightful place to appoint the three judges for the vacancies before the elections. In other words, three out of five judges appointed by the eighth-term Sejm were appointed in violation of the Constitution. However, the ruling of the Constitutional Tribunal has never been executed.

In Xero Flor, the Strasbourg Court was asked to assess the current composition of the Constitutional Tribunal. The case was brought by Xero Flor, a company that saw its constitutional complaint denied by a panel that included one of the three judges appointed by the eighth-term Sejm in defiance of the Constitutional Tribunal’s judgment. It argued that the presence of this judge had rendered the trial unfair, since the panel was not a tribunal “established by law”.

In December of last year, the Strasbourg Court had to deal with a similar complaint in the important case of Guðmundur Andri Ástráðsson. In its judgment, the Court broadened the scope of the right to a tribunal established by law by explicitly stating that the process of appointing judges was an inherent element of the concept “established by law”. It devised a three-step test to ascertain whether there has been a violation of this right, which it stringently applied to the Polish Constitutional Tribunal.

First, there must in principle be a manifest breach of domestic law during the appointment process. Here, the Court argues that the Constitutional Tribunal was the only judicial authority that could, within the limits of its jurisdiction, review the lawfulness of the appointments. It then simply referred to the judgments of the Constitutional Tribunal and reiterated the latter’s conclusions that three of the five judges that were appointed by the eighth-term Sejm had violated the Constitution. The Court saw no reason to call into question these findings and concluded that there had been a manifest breach of the domestic law.

Second, the breach of domestic law must pertain to a fundamental rule of the appointment procedure. Here, the Court found that the breaches of domestic law indeed concerned a fundamental rule of the election procedure, namely the rule that a judge of the Constitutional Tribunal was to be elected by the Sejm whose term of office covered the date on which his or her seat became vacant. This was further compounded by the manifest disregard of the Sejm and the President of the Constitutional Tribunal’s rulings. According to the Court, the actions of the legislature and the executive impaired the legitimacy of the election process and undermined the very essence of the right to a tribunal established by law.

Third, the Court looks whether the allegations regarding the right to a tribunal established by law are effectively reviewed by the domestic courts. Since no domestic procedure could challenge the alleged defects in the election process, the Court acknowledged that no remedies were available.

Based on these three steps, the Court came to the conclusion that there had been a violation of the right to a tribunal established by law.

Its importance

It is hard to overstate the importance, both legal and political, of the Court’s judgment in Xero Flor. The Court has ruled plain and simple that the current composition of the Polish Constitutional Tribunal is in violation of the right to a tribunal established by law. As such, the Strasbourg Court has unequivocally confirmed what has been known by many for years. Whereas the judgment only concerned one of the three judges, its reasoning applies just as well for the two others. As such, any panel in which one of those three judges takes part is not established by law. Thus, the three-step test from Ástráðsson has indeed been a nail in the coffin for the current composition of the Constitutional Tribunal.

A new question that arises now is whether the Constitutional Tribunal is still an effective remedy, one to be exhausted before appealing to the Strasbourg Court. In Xero Flor, the Court reiterated its earlier case law that the Constitutional Tribunal may, depending on the situation, be seen as an effective remedy. It is doubtful whether that point of view may be maintained now that it has been established that the presence of three of its judges in a given case would lead to a violation of the right to a tribunal established by law. However, it does remain possible for the Constitutional Tribunal to decide on a case in a panel fully composed of legitimate judges. So far, the Court has seemed to shy away from taking a clear stance on the issue of the necessity to exhaust domestic remedies in a country that has tried its hardest to impair the independence of its judiciary (see also the judgment of Solska and Rybicka). It seems that there will come a time sooner or later where it will have to bite this particularly hard bullet.

What is to be done about the earlier judgments by the Constitutional Tribunal that included one of the three judges is also unclear. In its Ástráðsson judgment, the Court held that “the finding of a violation in the present 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.” As was noted elsewhere, it has passed this hot potato to the Committee of Ministers and the domestic courts. The Court also did not say anything on that issue in Xero Flor. One can expect that, just like for Iceland (f.e. here and here), there will be a slew of cases coming to the Court, essentially asking it to confirm this judgment in their case.

Its follow-up

The Xero Flor judgment is without a doubt an important victory in the fight against rule of law backsliding. Nonetheless, one may have doubts about the effects it will have in practice. Anyone who reads the judgment in good faith comes to the conclusion that Poland should substitute the three “anti-judges” with the ones originally appointed by the seventh-term Sejm. Yet, this is anything but a novel idea; if years of national and international outcry have not swayed the Polish government, it is unlikely that it will all of a sudden have a change of heart. It is also doubtful that the Committee of Ministers’ political follow-up mechanism on the execution of judges will have enough bite to force the Polish government into submission.

In this regard it should also be pointed out that the Polish government has recently brought a case before the Constitutional Tribunal, asking it to establish the superiority of Polish constitutional law over EU law. The judgment on this issue is expected on 13 May. It seems likely that the government will bring a similar petition about the judgments of the ECtHR. The bitter irony is that the effectiveness of the ECtHR’s Xero Flor judgment may very well be undercut by the very judges it has targeted in its ruling.