Op-Ed: “From boars to courts – the landmark ECtHR case Xero Flor v. Poland” by Jakub Jaraczewski
On 7 May 2021, the European Court of Human Rights (ECtHR) handed down the judgment in the landmark case Xero Flor w Polsce sp. z o.o. v Poland (application no. 4907/18) concerning the Polish Constitutional Tribunal. This case is historic for a host of reasons. It is the first time the ECtHR has elaborated on the status of a judge of a constitutional court, finding that such a person was appointed unlawfully and as a result, their participation in ruling in a case caused a violation of Article 6(1) of the European Convention on Human Rights to occur – the right to a fair trial before an independent tribunal established by law. It is the first major ruling of the ECtHR in a case directly related to the backsliding of the rule of law in Poland, as the established violation of the right to fair trial resulted directly from the political takeover of the Polish Constitutional Tribunal. Finally, it is likely the first ECtHR judgment that came to be because of a string of events set in motion by a group of boars and deer devastating a field of rolled turf.
At the core of this case is the story of a Polish entrepreneur who sought compensation from the Polish state due to wild game – the aforementioned boars and deer – destroying a field of rolled grass owned by his company. In doing so, the applicant was awarded a minuscule compensation because an act of secondary law set rates for damage to fields of turf at a much lower level than rates for fields of wheat or corn. After losing his case at all other Polish court-levels, the applicant turned to the Constitutional Tribunal, asking it to review the conformity of laws that put him at a disadvantage with the Polish Constitution. But the Tribunal dismissed his case with the panel making the decision including the judge M.M. – quite manifestly Mr Mariusz Muszyński, the vice-president of the Tribunal, whose election was rife with controversy as the Polish parliament elected three judges of the Tribunal through ‘overwriting’ earlier appointments made by a previous parliament.
While the verdict was met with jubilation by those invested in resolving the Polish rule of law crisis, the immediate implications of the judgment will not be as extensive as many have hoped. The Polish Government is obliged by ECtHR to pay a total of 3,418 euros in compensation of costs and expenses to the applicant and will likely do so. Those who have had their individual constitutional complaints in Poland heard by a panel including the legally dubious judge – and possibly also the two further judges of the Polish Constitutional Tribunal whose appointment is questionable – can likely bring their claims before the ECtHR. But there is no such immediate way forward for questioning the judgments of the Polish Constitutional Tribunal handed out in other controversial cases, such as the October 2020 decision on abortion law or the recent ruling on curtailing the extended term of the Polish Commissioner for Human Rights, Adam Bodnar. These cases were a result of an abstract notion for judicial review by a group of parliamentarians, and as such, do not easily fall under the definition of executing an individual’s right to a fair trial and thus the scope of the ECtHR’s jurisdiction.
Aside from paying out the monetary compensation, the Polish authorities should also implement the Xero Flor judgment to ensure that the situation will not repeat itself. A smart and immediately helpful decision would be to simply remove the problematic judges from hearing cases, thus at least partially fixing the biggest legal issue found by ECtHR. Sadly, the leadership of the Polish Constitutional Tribunal has already publicly indicated that they are not interested in respecting the Strasbourg court. Of course, the rhetoric and the action are not always in line with each other, but with recent moves such as the Government requesting the Constitutional Tribunal to examine the relationship between Polish law and EU law with an obvious view towards disregarding the latter, the concept of respecting international courts seems to be falling out of fashion in Warsaw.
Yet, the judgment remains vital for three reasons. First, in that it contributes to developing the ECtHR’s case law on the rule of law and the independence of the judiciary, moving smoothly from the earlier Guðmundur Andri Ástráðsson v Iceland case and paving the way towards resolving further cases concerning the status of judges. Several such cases concerning Poland, which have been recently prioritised, are pending before the ECtHR. Some of these cases pertain to the status of judges of regular courts who were appointed with the participation of the, similarly ‘captured’, National Council of Judiciary. The ECtHR is about to become a flashpoint of the struggle for the rule of law in Europe with its case law on the independence of judiciary and its impact on human rights set to expand significantly in the coming months.
Secondly, as Strasbourg decides, Brussels pays attention. The verdict in the Xero Flor case will undoubtedly be welcomed with a raised glass of dubbel in the recently reopened beer gardens near Berlaymont, as this elaboration by the ECtHR will be likely quickly employed by the European Commission. Instead of arduously building an argument, as part of its various actions on the rule of law in Poland, that the Polish Constitutional Tribunal is defective, the Commission can now simply point to a decision by a globally respected human rights court and be done with it. This assessment will likely feature in the ongoing Article 7 TEU procedure against Poland, the Commission’s 2021 rule of law report, the infringement procedures launched by the Commission before the Court of Justice of the European Union and possibly in the recently introduced conditionality mechanism, as one could claim the Polish Constitutional Tribunal could be at some point ruling in cases directly related to the way EU funds are being spent.
Thirdly, and less from a legal perspective, the case is very important due to its human dimension and how relatable it is to people on the streets. Previous court cases regarding the rule of law in Poland, heard both by domestic courts and Court of Justice of the EU, invoked important yet somewhat abstract items – the fate of activist judges and prosecutors opposing the government, the status of Supreme Court justices, the length of the term of the ombudsperson, the relationship between legal orders – all vital topics, but very hard to convey to the layperson. But in the Xero Flor case, the applicant is a small entrepreneur seeking compensation for damage from the State – a relatable story that is easy to tell and shows how even very mundane situations could be negatively affected by backsliding of the rule of law. The boar and deer element makes it easier to nest this human story in one’s mind, capturing the imagination far easier than abstract notions of judicial independence. Moreover, it is a reason to appreciate nature and protect it, as you never know if a group of hungry boars will not set off an unlikely chain of events that will lead to landmark decisions by top courts on the crucial topic of the rule of law.
Jakub Jaraczewski is Research Coordinator at Democracy Reporting International, a Berlin-based NGO.