The ECHR ruling of May 07, 2021 in the case "Xero Flor W Polsce sp.z o.o v. Poland" (complaint No. 4907/18).
In 2018, the applicant company was assisted in preparing the complaint. Subsequently, the complaint was communicated to Poland.
The case is being appealed against serious violations that accompanied the election of a judge of the Constitutional Court of Poland, who sat in the court that considered the constitutional complaint of the applicant company. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant company, a leader in the production of rolled lawns, demanded compensation for damage caused to its lawn by wild animals from the State forestry. According to Polish law (the Hunting Law), the issues of damage assessment and payment of compensation for the harvest were under the jurisdiction of the Polish Ministry of the Environment, and the relevant order of this Ministry limited the amount of compensation to a percentage of the total calculated amount of damage. The parties disagreed on the amount of compensation. In the Polish courts, the applicant company unsuccessfully argued, among other things, that the Hunting Law and the application of the order of the Ministry of the Environment were unconstitutional. Later, the applicant company filed a constitutional complaint. This proceeding was terminated by a decision of the majority of the panel of five judges of the Constitutional Court of Poland, including Judge M.M.
The applicant company complained to the European Court that one of the judges of the Constitutional Court of Poland, Judge M.M., who participated in the consideration of the constitutional complaint of the company, was not elected to office in accordance with the requirements of Polish legislation.
During the last meeting in October 2015, the Sejm of the seventh convocation (the lower house of the Polish Parliament) adopted a resolution on the election of five judges to replace those whose term in office was coming to an end (for three judges, their term of office ended during the work of the Sejm of the seventh convocation). The President of Poland did not take the oath of office from these judges. In November 2015, among other things, the new Sejm of the eighth convocation adopted a resolution on the "absence of legal effect" from the election of the mentioned five judges by the previous Sejm (hereinafter referred to as the November resolution), and in December 2015 the Sejm elected five new judges to the Constitutional Court of Poland, including M.M. They took the oath of office to the President of Poland.
By a decision of December 3, 2015, left unchanged by a series of subsequent rulings, the Constitutional Court of Poland found numerous constitutional inconsistencies and decided that the election of three judges, including M.M., by the Sejm of the eighth convocation to positions to which judges had already been appointed in October 2015 by the decision of the Sejm of the seventh convocation, was invalid.
Subsequently, the Seimas of the eighth convocation adopted new legislation, which included a provision that these judges should be appointed to judicial boards and appointed to consider cases. The Constitutional Court of Poland declared this provision unconstitutional. Subsequently, regulations with similar content were adopted, which came into force in 2017, and M.M. was included in the boards of the Constitutional Court of Poland. In a ruling dated October 2017, the Constitutional Court of Poland concluded that the new legislation was in line with the Constitution of Poland.
LEGAL ISSUES
Regarding compliance with article 6, paragraph 1, of the Convention.
(a) Applicability. The proceedings before the Constitutional Court of Poland were directly crucial for the implementation of the civil rights voiced by the applicant company. Indeed, if the Polish Constitutional Court had found that the adoption of the aforementioned order of the Polish Ministry of the Environment, which was the basis for the final decision in the applicant company's case, violated her right to property protection, she would have had the opportunity to apply to the competent court with a request to resume proceedings in a civil case in accordance with the Polish Constitution and Civil Procedure the Polish Code. In a new examination of the case, the domestic courts would have to ignore the normative act recognized as unconstitutional and consider the applicant company's claim for compensation solely on the basis of the Hunting Law, taking into account the general principle of civil law on compensation for damage in full. Consequently, paragraph 1 of article 6 of the Convention was applicable in the present case to the proceedings before the Constitutional Court of Poland.
(b) The substance of the complaint. The European Court considered whether violations in the judicial appointment procedure in December 2015 could have deprived the applicant company of its right to a "court established by law" in the light of the three-step test it developed in the Judgment in the case "Gu mundur Andri Austraudsson v. Iceland" (Gu mundur Andri str sson v. Iceland) (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Gu mundur Andri Austradsson v. Iceland" (Gu mundur Andri str sson v. Iceland) dated December 1, 2020, complaint No. 26374/18 // Precedents of the European Court of Human Rights. 2021. N 3.):
(i) whether there has been a clear violation of Polish law. Firstly, in the resolution of December 3, 2015. The Constitutional Court of Poland concluded that the November resolution had no legal consequences for the resolutions of the Sejm of the seventh convocation regarding the election of judges, since neither this nor subsequent convocations of the Sejm had any authority to change the previously adopted decision on the election of a judge of the Constitutional Court of Poland. In a subsequent ruling, the Constitutional Court of Poland additionally noted that there were no legal norms that allowed any public authority, including the Sejm, to declare the resolution of the Sejm on the election of a judge of the Constitutional Court of Poland invalid. Consequently, there was a violation of Polish law in connection with the adoption of the November resolution.
Secondly, and in accordance with the relevant series of rulings of the Constitutional Court of Poland, the European Court considered that the election of three judges, including Judge M.M., to the Constitutional Court was carried out in violation of part one of Article 194 of the Constitution of Poland, namely the rule that a judge should be elected by the Sejm, whose term of office extends to the date when the judge's seat becomes vacant. In addition, as established by the Constitutional Court, the election of these three judges concerned seats in the Constitutional Court already occupied by judges duly elected by the Seimas of the seventh convocation. Accordingly, the resolution of the Sejm of the eighth convocation on the election of three judges was the second violation of Polish law regarding the procedure for electing judges of the Constitutional Court of Poland.
Thirdly, the Constitutional Court of Poland noted that the President of Poland was obliged to immediately take the oath of office from the judge of this court, elected by the Sejm. In the present case, the President of Poland refused to take the oath of office from three judges duly elected by the Sejm of the seventh convocation, and at the same time immediately took the oath of office from judges elected by the Sejm of the eighth convocation. These actions and inaction should be considered as a violation of Polish legislation on the election of judges of the Constitutional Court.
The European Court could not agree with the argument of the Polish authorities that the decisions of the Constitutional Court of Poland referred to in the case had no relation to the validity of the election to the post of judge M.M. In particular, referring to the ruling of the Constitutional Court of Poland of October 2017, the authorities of the respondent State argued that the final confirmation of the election of a judge of the Constitutional Court of Poland was carried out at the stage of taking the oath of office to the President of the country, and the authorities stressed the importance of this circumstance. However, the said ruling, without reference to any material grounds, ignored and/or contradicted previous rulings of the Constitutional Court of Poland. In such circumstances, the decision adopted later, in October 2017, could not correct the fundamental violations committed in the process of electing three judges, including M.M., as clearly stated in earlier decisions of the Constitutional Court of Poland, and it could not legitimize the election of these judges. In addition, the five-judge panel that issued the October 2017 ruling included two judges (including Judge M.M.) elected by the eighth convocation Seimas, whose legal status was also the subject of judicial proceedings. In view of the above, the ruling of October 2017 had little (if any) significance in assessing the validity of the contested election of judges of the Constitutional Court of Poland.
These three contradictions should be considered as clear violations of Polish law within the meaning of the first stage of the test developed by the European Court.
(ii) Whether violations of Polish law related to the fundamental rules of procedure for the appointment of judges. Violations of Polish law concerned the fundamental rule of procedure for the election of judges, namely that a judge of the Constitutional Court of Poland should have been elected by the Sejm, whose term of office extends to the date when the judge's seat became vacant. This fundamental rule, derived from the Polish Constitution, was recognized by the Constitutional Court in its ruling of December 3, 2015 and confirmed by four subsequent rulings of this court.
The election of three judges in December 2015 and their swearing-in took place shortly before the ruling by the Constitutional Court of Poland. The rash actions of the Sejm of the eighth convocation and the President of Poland, who knew about the upcoming ruling of the Constitutional Court of Poland, raised doubts about the illegal interference of the mentioned authorities in the process of electing judges of this court.
Violations of the fundamental rule were then aggravated by the circumstances that, firstly, the Sejm of the eighth convocation and the President of Poland continued to deny the conclusions following from the rulings of the Constitutional Court of Poland, and that, secondly, the legislative authority tried by adopting normative legal acts to force the appointment of three judges to the Constitutional Court of Poland, including a judge M.M. In this regard, the European Court expressed particular concern that the Constitutional Court of Poland declared the norms of law aimed at forcibly including judges in the court unconstitutional in two of its rulings, and that the Prime Minister of Poland refused to publish them in violation of constitutional norms that the rulings of the Constitutional Court of Poland should be published immediately. Moreover, the Sejm of the eighth convocation continued to ignore the rulings of the Constitutional Court of Poland and eventually adopted regulations that essentially led to the inclusion of the judges in question in the case in the Constitutional Court of Poland.
By failing to comply with their duty to comply with the relevant rulings of the Constitutional Court of Poland, the legislative and executive domestic authorities acted in violation of the rule of law. The mentioned actions of the Polish authorities also testified that they ignored the principle of legality, which requires that the actions of public authorities comply with domestic legislation and are provided for by law. In addition, the failure of the authorities of the respondent State to comply with the decisions of the Constitutional Court of Poland was also related to their challenging the role of the said court as the supreme arbitrator in cases concerning the interpretation of the Constitution and the constitutionality of the norms of law. This aspect of the case should also be considered contrary to the purpose of the convention requirement "a court established on the basis of law", the same can be said about the refusal of the Prime Minister to publish the decisions of the Constitutional Court of Poland.
Thus, the actions of the legislative and executive authorities of Poland were an illegal external influence on the Constitutional Court of Poland. Violations in the procedure for electing three judges, including M.M., to the Constitutional Court were so serious that they affected the legality of the process of their appointment and violated the very essence of the right to a "court established on the basis of law."
(iii) Whether the complaints concerning the "court established by law" have been effectively considered by the Polish courts and whether remedies have been provided. Polish legislation did not provide for a procedure by which the applicant company could appeal against violations in the process of electing judges of the Constitutional Court of Poland. Consequently, she was not provided with a remedy.
RESOLUTION
The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention (adopted unanimously).
The European Court also ruled unanimously that there had been a violation of article 6, paragraph 1, of the Convention with regard to the right to a fair trial due to the fact that the reasons given by the domestic courts for refusing to refer the legal issue to the Constitutional Court of Poland were insufficient.
COMPENSATION
In the application of article 41 of the Convention. The applicant company did not submit claims for compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.