Strasbourg Court entered the rule of law battlefield – Xero Flor v Poland

Barbara Grabowska-Moroz – postdoctoral research fellow at CEU Democracy Institute (Budapest)

Introduction

More than five years after the rule of law crisis started in Poland, the international court ruled for the very first time that the composition of the Constitutional Tribunal (CT) in Poland is illegal. After numerous rulings of the Court of Justice of the EU dealing with the so-called “reform of the judiciary” it was the Strasbourg court, which achieved something that was not possible (thus far) in Luxembourg – it ruled that capture of the Constitutional Tribunal violates the European Convention on Human Rights (Convention, ECHR). Will Xero Flor v Poland become a game-changer in the legal debates over the Polish rule of law crisis?

Facts

The applicant, a producer of turf, sought compensation from the State Forests Holding, which is liable for damages caused by boar and dears. An unsatisfactory amount of the compensation together with doubts regarding the constitutionality of the legal basis on which the courts’ decisions were taken, led to the submission of the constitutional complaint to the Constitutional Tribunal. The applicant company argued that the executive regulation, which was applied in their case, violated the Constitution since the limitation of the right to property was based on the executive regulation and not on the statute. The Constitutional Tribunal (panel of five judges assigned to the case) first found that the complaint met the relevant statutory requirements, but later, in 2017, decided (by a majority of three to two) to discontinue the proceedings due to a “failure to satisfy one of the relevant statutory conditions of admissibility”. One of the members of the CT panel (Mariusz Muszyński) was appointed to the CT with important irregularities confirmed already in 2015 by the Constitutional Tribunal. Xero Flor submitted their application to the European Court of Human Rights (Court, ECtHR) in 2018 and claimed, among other things, that the composition of the Constitutional Tribunal was illegal, which led to a violation of the right to a tribunal established by law.

Summary of judgement

The Court found that the proceedings before the Constitutional Court were directly decisive for the civil right asserted by the applicant company. This led to the conclusion that Article 6 § 1 of the ECHR was applicable to the constitutional complaint proceedings before the Constitutional Court. It allowed the Court to apply criteria expressed in the Guðmundur Andri Ástráðsson v. Iceland case to assess whether the right to a “tribunal established by law” had been breached. With regards to the composition of the Constitutional Tribunal, the Court found: manifest breaches of the domestic law; breaches in the procedure for electing three judges which were of such gravity as to impair the legitimacy of the election process and undermine the very essence of the right; and finally, that no remedies were provided. As a result, the applicant company was denied its right to a “tribunal established by law” due to participation, in the proceedings before the Constitutional Court, of a judge whose election was vitiated by grave irregularities. The Court ruled that those irregularities led to a breach of “the very essence” of the right to a tribunal established by law.

Judge Wojtyczek presented a 27-pages long partly concurring, partly dissenting opinion, in which he discussed whether Article 6 of the ECHR can be considered applicable in proceedings before the Polish Constitutional Tribunal. He presented relevant ECHR case-law in detail and concluded that “the exclusion of the applicability of Article 6 to constitutional review of legislation seems to be the rule” and applicability of Article 6 – an exception. He further contended that there needs to be “certain specific grounds” in order to overturn such an assumption. Judge Wojtyczek concluded that the applicant company had been denied the right of access to a tribunal established by law, however, the approach adopted by the Court to uphold the rule of law when deciding Xero Flor was “suboptimal”.

Comment/analysis of the judgement

Xero Flor is the first ruling of the ECtHR dealing with the post-2015 rule of law crisis in Poland. The crisis started with the capture of the CT and yet it took five years for a binding ruling by an international court to confirm its illegal composition. When applying the Guðmundur Andri Ástráðsson criteria, the Court heavily relied on the domestic rulings of the CT. This shows how important the rulings of the domestic courts are in the rule of law disputes handled at the international level.

The political comments to the ECtHR judgment tried to limit its possible consequences by arguing that the ECtHR was not entitled to issue such a ruling, which makes it illegal and as a result it does not impose any legal consequences. The exact same narrative was presented by Julia Przyłębska, President of the CT. Unfortunately, this political ignorance was translated into a “judicial” analysis by the CT. It stated that Xero Flor “is based on theses that demonstrate a lack of knowledge of the Polish legal system.” Moreover, the CT declared that the ECHR judgment “was issued without a legal basis, exceeds the competence of the ECHR and constitutes an unlawful interference with the national legal order” and “for these reasons, it must be considered a non-existent judgment (sententia non existens)”.

The political disapproval of Xero Flor was later expressed in a formal motion submitted by the Prosecutor General (Minister of Justice) to the CT. The Prosecutor General (PG) wants the CT to rule that Article 6 ECHR is incompatible with the Polish Constitution. He wants to review the ECHR ruling but not in front of the Grand Chamber. He disagrees with the main finding of Xero Flor and argues that the CT should not be considered a “court” in the light of Article 6 ECHR. According to the Prosecutor General, Xero Flor introduced a new standard against the will of the member states of the Convention. The PG argues that the interpretation of the Convention provided in Xero Flor threatens the integrity of the states’ legal systems and basic constitutional principles. Interestingly enough, according to the PG, the role of the CT is to protect Polish sovereignty. Finally, the PG argues that Xero Flor violates the rule of law (principle of a democratic state ruled by law expressed in Article 2 of the Polish Constitution) in a two-fold manner: first of all, the PG argues that the ECHR judgment modified one of the Convention’s legal norms, which is incompatible with the democratic principles. Secondly, as a result of Xero Flor, the legal system is not foreseeable anymore.

While state sovereignty remains the central element of the PG’s reasoning, the whole motion is not about state sovereignty but the essence of the current rule of law crisis in Poland: the limits of unchecked discretionary powers of the executive. It seems that after Xero Flor, the crisis entered a new stage – an open disregard for international obligations. The new strategy was applied not only in relation to the ECHR but also in connection to the European Union. On 14 July 2021, the CT ruled that issuing interim measures by the Court of Justice of the European Union (CJEU) relating to issues of the judiciary in Poland was found to be ultra vires and in breach of the Polish Constitution. Interestingly enough, according to media reports the government did not file a request to review the Xero Flor judgment before the Grand Chamber. The government prefers to discuss its international obligations before the loyal CT.

Of course, the case pending before the CT will not bear the obligation of implementing the ECHR ruling, especially with general measures that would allow to prevent similar violations in the future. Furthermore, Xero Flor will be a standard applicable in future cases pending before the Court concerning the rule of law crisis, especially those dealing with the process of undermining the independence of courts in Poland. There are approximately 30 pending cases before the Court, dealing with different aspect of the reform of the judiciary. All of them were given priority. In June 2021, the ECHR found that the discretionary dismissal of vice-presidents of common courts by the Minister of Justice (Prosecutor General) in late 2017 and beginning of 2018 was done in breach of the Convention. In July 2021, the ECHR ruled that the appointment of judges of the Disciplinary Chamber of the Supreme Court in Poland was unduly influenced by the legislative and executive and that the Disciplinary Chamber was not a “tribunal established by law” within the meaning of the European Convention. Those cases may lead to a change regarding the assessment of the exhaustion of domestic remedies when deciding on the admissibility of applications against Poland. Will the constitutional complaint be downgraded and considered an ineffective remedy due to the illegal composition of the Tribunal? In that case, the CT will become even more judicially marginalized in the European system of human rights protection.

With Xero Flor, the Strasbourg Court joined the Luxembourg Court on the rule of law battlefield. The Strasbourg Court issued a judgment dealing with the illegal composition of the CT in Poland. Thus far, a similar case has neither in infringement proceedings, nor in the preliminary procedure, been decided in Luxembourg. There is, however, a chance that the European Commission will refer to Xero Flor in future litigations regarding the reform of the judiciary in Poland to show a systemic nature of rule of law backsliding. After Xero Flor, it will be more difficult for Polish government officials to argue (e.g. in an Article 7 TEU procedure) that the situation with the CT is in order.

Conclusion

Xero Flor is the first ruling of an international [human rights] court that confirmed the illegality of the capture of the CT in Poland. The takeover of the Tribunal was the first step in the rule of law backsliding process initiated in November 2015, which transformed the Tribunal into a political enabler. The whole reform of the judiciary (discussed before the Luxembourg Court) was based on this new role of the CT – to secure and confirm the constitutionality of new amendments dealing with the judiciary in Poland. The fact that the most important international human rights court in Europe needed more than five years to deal with the “original sin” of the rule of law crisis in Poland, raised doubts about whether the Strasbourg Court can fulfill its role in the context of the rule of law backsliding. Fortunately, Xero Flor showed that Convention is a living instrument applicable also to a systemic undermining of rule of law principles.