Poland’s constitutional court not a “tribunal established by law”, rules ECHR

The European Court of Human Rights (ECHR) has ruled that Poland’s constitutional court is not a “tribunal established by law” because it contains a judge illegitimately appointed as part of the current government’s judicial policies.

It is the first time that a European court has rejected the legitimacy of the current make-up of Poland’s Constitutional Tribunal, which is the body responsible for assessing the constitutionality of laws, noted Laurent Pech, a professor of European law at Middlesex University.

The ECHR’s unanimous decision could pave the way for further such cases to be filed. However, the head of the Constitutional Tribunal today claimed that the court in fact had no legal basis to issue its ruling at all.

The case in question originated with a complaint brought in 2012 by Xero Flor, a leading Polish producer of rolls of turf. It took legal action after a lower court only awarded it 60% of the compensation it had sought from the state for damage to its turf caused by wild boar and deer.

The initial ruling was upheld by an appeals court in 2014, and a year later Poland’s Supreme Court refused to examine a cassation appeal.

During this time, Xero Flor had unsuccessfully requested that lower courts ask the Constitutional Tribunal to assess the constitutionality of the legislation that had been the basis for the compensation ruling. Eventually, the firm lodged a constitutional complaint itself. However, in 2017, a panel of Constitutional Tribunal judges ruled that the complaint was inadmissible.

That prompted Xero Flor to refer the case to the ECHR in Strasbourg, arguing that lower courts had wrongly refused to refer its constitutional doubts to the tribunal and that the composition of the tribunal’s bench which assessed the later complaint was itself unconstitutional.

In particular, the company argued that one of the tribunal’s judges who had adjudicated on the case, Mariusz Muszyński, had been illegitimately appointed to fill a seat that was already filled.

The issue of such “doubles” – as they are dubbed by critics of the government’s overhaul of the judiciary – dates back to 2015, when the outgoing government, led by Civic Platform (PO), appointed five judges to the tribunal instead of the permitted three.

The incoming Law and Justice (PiS) government and its allied president, Andrzej Duda, however, then replaced not only the two illegitimately appointed judges, but all five of them. It also refused to publish rulings by the tribunal against these appointments.

As a result, the Constitutional Tribunal – which is headed by a close associate of PiS chairman Jarosław Kaczyński who was herself engineered into her position in an apparent breach of procedures – is seen by many as a politicised body incapable of fulfilling its constitutional function.

In its ruling today, the ECHR found that on the first matter – the refusal of lower courts to refer the case to the Constitutional Tribunal – Xero Flor had been denied the right to a fair trial.

Despite the firm’s “repeated raising of the matter…domestic courts had not answered its arguments that the law applied in its case had been incompatible with the Constitution” and thus “failed to provide reasoned decisions, denying the applicant company a fair trial”, found the ECHR.

Even more consequentially, the Strasbourg court also ruled that Poland had denied the company its right to a hearing by a “tribunal established by law”, as understood under Article 6 of the European Convention on Human Rights.

It noted that President Duda had “refused to swear in three judges who had been legally elected” and that the PiS-controlled parliament then elected three new judges, including Muszyński, “to seats that had been already filled”.

“The actions of the legislature and executive…were 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,” said the ECHR. “The applicant company had [thus] been denied its right to a ‘tribunal established by law’.”

The ECHR ruled that the Poland should pay €3,418 to Xero Flor in respect to costs and expenses. Some lawyers have suggested that, more significantly, the judgement could lead to further challenges against rulings involving “doubler” judges.

The Constitutional Tribunal’s chief justice, Julia Przyłębska, however, argued following today’s decision that the ECHR’s decision was itself “a gross violation of the law and has no basis whatsoever in the acts of international law”, reports Polish state broadcaster TVP.

Ahead of the verdict’s publication, the office of Poland’s commissioner for human rights, Adam Bodnar, issued a statement saying that the case would be “extremely important for Polish citizens and their right to a fair trial”.

It wrote that the Constitutional Tribunal has “been subordinated”, giving the executive “a tool to formally legalise laws adopted by parliament despite their apparent constitutional flaws”.

The overhaul of the tribunal in 2016 was one of a number of changes to the judiciary introduced by PiS that have been found to be illegitimate by both Polish courts and various European institutions, and are also seen by most Poles as a violation of the rule of law.

Main image credit: Platforma Obywatelska RP/Flickr (under CC BY-SA 2.0)

Maria Wilczek

Maria Wilczek is deputy editor of Notes from Poland. She is a regular writer for The Times, The Economist and Al Jazeera English, and has also featured in Foreign Policy, Politico Europe, The Spectator and Gazeta Wyborcza.