In a unanimous judgment handed down last week, the ECtHR noted that three judges of the Constitutional Court of Poland had been appointed in December 2015 to seats that had already been legally filled.

The Polish president had refused to swear in the three judges who had been legally elected in October 2015 by the outgoing Sejm (parliament).

Polish company Xero Flor had brought the case to the ECtHR alleging violations of Article 6 of the European Convention on Human Rights concerning the right to a fair hearing and the right to a tribunal established in law.

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 per cent 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., one of the three judges elected by the new Sejm despite his seat having already been filled by the old Sejm.

The ECtHR 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”.

Eve Geddie, European institutions director of Amnesty International, said the ruling “sends a powerful message to the Polish authorities – interfering with the election of judges to the Constitutional Court makes the Constitutional Court unlawful”.

She added: “This ruling that the bench of Poland’s Constitutional Court is not independent and its judges were appointed in violation of the law must now spur the EU to finally take strong action. Years of ‘dialogue’ to prevent the Polish authorities from taking control of its courts have clearly failed.

“This decision confirms what many people in Poland have known for some time: that the Constitutional Court can no longer effectively protect human rights. How can an unlawful court uphold people’s rights?

“We hope this judgment will encourage institutions such as the EU to finally take strong action on this matter, after years of ‘dialogue’ which have clearly failed to stop the Polish authorities undermining this crucial judicial institution.”