The refusal of the courts to consider an objection to the unconstitutionality of the law consists of a violation of the right to be heard. Composition of a court attended by a judge who had not been legally elected. Violation of the fair trial
JUDGMENT
Xero Flor w Polsce sp. Z o.o. v. Poland 07.05.2021 (app. no. 4907/18)
SUMMARY
The case concerned attempts by the applicant company to get compensation from the State for
damage to one of its products (turf) by game. In particular, it had sued in 2012 but had been
awarded only 60% of what it had sought. It had been unable to get satisfaction through the domestic
courts. Although it had asked on several occasions that the question of the constitutionality of the
relevant law be referred to the Constitutional Court, it had been turned down by the first-instance
and appellate courts. Ultimately it had lodged a constitutional complaint that the Constitutional
Court had declared inadmissible in 2017. The bench that had heard that case had contained Judge
M.M., who had been elected by the new Sejm despite his seat having already been filled by the old
Sejm.
The Court found in particular that – despite the applicant company’s repeated raising of the matter –
the domestic courts had not answered its arguments that the law applied in its case had been
incompatible with the Constitution and, consequently, had failed in their duty under Article 6 § 1 of
the Convention to provide reasoned decisions, denying the applicant company a fair trial.
It furthermore adjudged that the actions of the authorities in appointing one of the judges who had
been on the bench in the applicant company’s case and the ignoring of the Constitutional Court’s
judgments in that connection had meant that the panel that had tried the case had not been a
“tribunal established by law”.
THE DECISION OF THE COURT….
The applicant, Xero Flor w Polsce sp. z o.o., is a company based in Leszno Dolne (Poland). It is a
leading producer of rolls of turf (trawnik rolowany).
It had been involved in litigation for a number of years over damage to its turf caused by wild boar
and deer. In 2012 it sued the State Treasury for game damaging its turf in the autumn of 2010 and
spring of 2011. In its claim it submitted that the reduced percentage rates for calculating
compensation for crops, provided for in the Hunting Act and the 2010 Regulation of the Minister of
the Environment, were only relevant for annual crops. It also argued that such a limitation on the
level of compensation, which came via subordinate legislation, should not be applied to its case as it
was unconstitutional.
However, referring to a court-ordered expert report, the Regional Court found that turf was not a
multiannual crop and, applying the 2010 Regulation to calculate the damage, only partly granted the
applicant company’s claim, awarding it about 60% of the amount sought.
The Court of Appeal upheld the lower court’s findings and dismissed an appeal by the applicant
company in 2014. The Supreme Court then refused to examine a cassation appeal by the applicant
company in 2015. Throughout those proceedings the applicant company consistently, but
unsuccessfully, requested that the courts refer legal questions on the constitutionality of the
Hunting Act and the 2010 Regulation to the Constitutional Court.
It ultimately lodged a constitutional complaint, reiterating its objections to the constitutionality of
the Act and the Regulation, but the Constitutional Court, by a majority of 3 to 2, decided in 2017 that
the complaint was inadmissible.
Relying on Article 6 § 1 (right to fair trial) of the European Convention on Human Rights, the
applicant company complained of the courts’ refusal to refer legal questions on the constitutionality
of the Hunting Act and the 2010 Regulation to the Constitutional Court.
Also relying on Article 6 § 1, the applicant company also alleged that the bench of five judges of the
Constitutional Court which had examined its case had been composed in violation of the
Constitution. In particular, Judge M.M. had been elected by the Sejm (the lower house of the
Parliament), despite that post having already been filled by another judge elected by the preceding
Sejm.
Lastly, the applicant company alleged a breach of Article 1 of Protocol No. 1 (protection of property)
to the Convention because it had not been able to obtain full compensation for the damage to its
property.
THE DECISION OF THE COURT…
Article 6 § 1
Right to a fair hearing
The applicant company alleged that the reasoning of the ordinary courts had been insufficient and
that questions around constitutionality of law should have been sent to the Constitutional Court.
The Court reiterated that detailed judgments were important, but that did not necessarily require an
answer to every question. It acknowledged that there was no right to have a case referred to
another national court for a preliminary ruling.
However, in the current case the Court determined that the domestic courts had not answered the
applicant company’s arguments that the law applied to its case, limiting the level of compensation
due, had been incompatible with the Constitution, despite its having raised that issue several times.
The domestic courts fell short of their duty under the Convention to provide reasoned decisions for
their refusal to refer a pertinent legal question to the Constitutional Court, leading to a violation of
the applicant company’s right to a fair hearing.
Right to a tribunal established by law
The Court firstly decided that Article 6 § 1 was applicable to the proceedings before the Constitutional Court and rejected the Government’s objection in that connection.
The applicant company argued that the election in December 2015 of three judges, including Judge
M.M., to the Constitutional Court in an allegedly irregular procedure had infringed its right to a
tribunal established by law.
The Court referred to its Guðmundur Andri Ástráðsson v. Iceland judgment, in which it clarified the
scope of and meaning to be given to the concept of a “tribunal established by law”. The Grand
Chamber established a three-step test of whether particular appointments were violations of the
Convention: was there a manifest breach of domestic law? Did the appointment allow the court to
operate while preserving the rule of law and the separation of powers? What was the assessment of
the national courts with regard to the appointment? Accordingly, the Court examined whether the
judicial election procedure at issue had the effect of depriving the applicant company of its right to a
“tribunal established by law” in the light of that three-step test.
The Court found that the President of Poland had refused to swear in three judges who had been
legally elected in October 2015 by the old Sejm. It also found that the new Sejm had elected in
December 2015 three new judges, including Judge M.M., to seats that had been already filled. The
Court saw no reason to disagree with the Constitutional Court’s findings that there had been
irregularities amounting to manifest breaches of domestic law in the appointment of those judges. It
found that the actions of the legislature and executive, in particular the authorities’ failure to abide
by the relevant Constitutional Court judgments, was 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.
It thus considered that the applicant company had been denied its right to a “tribunal established by
law” owing to the irregularities in the appointment of Judge M.M. specifically.
There had therefore been a violation of the applicant company’s rights in that regard.
Other articles
The Court decided that there was no need to give a separate ruling under Article 1 of Protocol No. 1.
Just satisfaction (Article 41)
The Court held that Poland was to pay the applicant company 3,418 euros (EUR) in respect of costs
and expenses.
Separate opinion
Judge Wojtyczek expressed a partly concurring and partly dissenting opinion, which is annexed to
the judgment.
