Infringement of the right of fair hearing and right to a tribunal established by law

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Xero Flor W Polsce SP. Z.O.O. v. Poland (Application no 4907/18)

Briefed on: November 28, 2022

This case concerns an infringement of the applicant company’s right to a fair hearing due to the domestic courts' failure to examine its argument that secondary legislation limiting its right to compensation was unconstitutional. It also concerns the infringement of the applicant company’s right to a tribunal established by law due to the participation of Judge M.M. in the Constitutional Court’s panel that rejected its constitutional complaint.

The European Court of Human Rights ruled that:

  • There was a violation of a right to a ‘tribunal established by law’ (Article 6 § 1 ECHR);

  • The judge was elected with a manifest breach of domestic law;

  • The violation ‘concerned a fundamental rule of the election procedure, namely the rule that a judge of the Constitutional Court was to be elected by the Sejm whose term of office covered the date on which his seat became vacant.’

  • An additional violation of Article 6: lack of justification of domestic courts for non-referring legal question to the Constitutional Tribunal

The Helsinki Foundation for Human Rights is actively involved in the process of the execution of the judgment. They have submitted rule 9.2 communication on 30 March 2022.