Information Note on the Court’s case-law 232

August-September 2019

Xero Flor w Polsce sp. z o.o. v. Poland (communicated case) - 4907/18

Article 6

Constitutional proceedings

Article 6-1

Tribunal established by law

Constitutional Court bench including judge allegedly elected unlawfully: communicated

The applicant company is a producer of turf. In 2012 it lodged a claim against the State Treasury, seek ing compensation for damage caused to its turf by game (boars and deer). The applicant company was only partially successful in its claim (it was awarded 40% of the amount sought). The courts had in fact applied a ministerial regulation which provided that compensation for damage was to be reduced by coefficients linked to the period of the year in which the damage had been sustained. The applicant company raised constitutional arguments in relation to its property rights, both against the Hunting Act and a gainst the adopted regulation itself. As the ordinary courts refused to refer the underlying questions to the Constitutional Court, the applicant company eventually lodged a constitutional complaint; however, the Constitutional Court, by a majority of thre e to two, declared this inadmissible.

The applicant company complains, inter alia :

– firstly, that the ordinary courts failed to give adequate reasons for their refusal to refer to the Constitutional Court the question the applicant company had raised abo ut the conformity of the impugned provisions of the Hunting Act and of the regulation with the Constitution and the Convention;

– secondly, that it could not obtain full compensation for the damage sustained to its property: in its view, the coefficients a pplied were both irrelevant to turf, whose crop is not annual, and technically illegal as the legislature was allegedly not entitled to leave this matter open to ministerial regulation;

– thirdly, that its case was not heard by a “tribunal established by law”, as one of the majority judges on the bench had been elected to a post at the Constitutional Court by the Sejm (the lower house of the Polish Parliament) of the 8th term in spite of the fact that this post had already been filled by the previous legislature and the Constitutional Court had confirmed those elections of judges as valid.

Communicated under Article 6 § 1 (civil limb) and Article 1 of Protocol No. 1.

© Council of Europe /European Court of Human Rights This summary by the Registry does not bind the Court.

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