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ECtHR to hear another defective judicial appointment case. HFHR explains causes of Polish constitutional crisis in amicus curiae brief

The Helsinki Foundation for Human Rights has submitted an amicus curiae brief to the European Court of Human Rights in the case Xero Flor v. Poland. The Xero Flor case is the first one in which the Strasbourg Court will have to decide whether the defective appointment of a person to sit in the Constitutional Tribunal violates the applicant’s right to be heard by a court established by law enshrined in Article 6 of the European Convention on Human Rights.

Concerns have been expressed as to the lawfulness of the election of three persons adjudicating in the Constitutional Tribunal who were appointed to already taken positions on the Tribunal’s bench. Many lawyers, Polish Ombudsman, courts and international bodies say that the appointments of the “double-judges” are ineffective. This argument lies at the core of the case brought before the ECtHR. According to the applicant, the company named Xero Flor w Polsce sp. z o.o., a person sitting in Poland’s constitutional court has been defectively elected and should not hear a case the company is a party to. Xero Flor further argues that the involvement of a “double-judge” violates the right to a court established by law and derived from Article 6 ECHR.

The case brought before the Strasbourg Court concerns the Constitutional Tribunal’s discontinuation of proceedings concerning a constitutional complaint lodged by Xero Flor. In its amicus curiae brief, the Foundation emphasises the special relevance of the constitutional complaint as a means of protecting individual rights and freedoms. The constitutional complaint is an important legal tool, even though it can only be used to challenge the constitutionality of a given legal provision rather than to appeal against a judicial decision. Frequently, the application of unconstitutional provisions leads to human rights violations. In such situations, the constitutional complaint becomes an effective remedy to vindicate one’s rights. Apart from discussing the case-specific problems, the Foundation’s brief presents the history of the constitutional crisis in Poland, starting with the adoption of the new Constitutional Tribunal Act by the 7th Sejm in June 2015.

Xero Flor is another “judiciary case” pending before the ECtHR whose resolution will significantly affect both the human rights standards in Poland and the efficient operation of the country’s justice system. Earlier, the HFHR has engaged in Ástráðsson v. Iceland and Grzęda v. Poland, the latter involving a judge elected to the National Council of the Judiciary whose term of office has been early terminated without a remedy enabling the judge to exercise the right to a court while seeking to challenge his termination.

By submitting the amicus curiae brief, a social organisation may express its views on a matter scrutinised in ongoing proceedings, thereby assisting the court in its comprehensive review of the case. The organisation filing the brief does not support any of the parties to the proceedings and makes no recommendation as to the way in which the court should decide the case at hand. The Helsinki Foundation for Human Rights has long been applying the practice of submitting amicus curiae briefs in strategic proceedings linked to the improvement of human rights protection standards.


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