09 Mai 2021

What Should and What Will Happen After Xero Flor

The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal

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)I would like to strongly encourage readers unfamiliar with the issues related to the crisis around the Polish Constitutional Tribunal to read the available sources on this subject (For example here and here). Due to  limited space, I am unable to discuss all these issues in details.

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