Interim Resolution CM/ResDH(2023)142

Execution of the judgment of the European Court of Human Rights

Xero Flor w Polsce sp. z o.o. against Poland

(Adopted by the Committee of Ministers on 7 June 2023 at the 1468 th meeting of the Ministers’ Deputies)

Application

Case

Judgment of

Final on

4907/18

XERO FLOR w POLSCE sp. z o.o.

07/05/2021

07/08/2021

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case concerning notably a violation of the right to a tribunal established by law on account of the participation in the Constitutional Court’s panel that rejected the applicant company’s constitutional complaint of Judge M.M., whose election by the eight-term Sejm was vitiated by grave irregularities, which occurred in a wider context of successive judicial reforms aimed at weakening judicial independence in Poland;

Recalling that the respondent’s State’s obligation under Article 46, paragraph 1, of the Convention entails, in addition to the payment of the just satisfaction awarded by the Court, the adoption, where required, of individual measures to put the applicant, to the extent possible, in the position in which he or she would have been had the requirements of the Convention not been disregarded, so as to achieve as far as possible restitutio in integrum;

Noting with grave concern that the Constitutional Court in its judgment of 24 November 2021 in the case K 6/21 found that Article 6, paragraph 1, of the Convention, as interpreted by the European Court in the Xero Flor judgment, was inconsistent with the Polish Constitution; and that it considered the Xero Flor judgment to be deprived of enforceability as it had allegedly been adopted by the European Court acting ultra vires;

Recalling that the report of the Secretary General of the Council of Europe in accordance with Article 52 of the Convention ( SG/Inf(2022)39 ) concluded that as a result of the findings of unconstitutionality in the judgment in the case K 6/21, the ensuing obligation of Poland under the Convention to ensure the enjoyment of the right to a fair trial by an independent and impartial tribunal established by law to everyone under its jurisdiction was not fulfilled; and that to ensure the implementation of its international obligations under Article 1, Article 6, paragraph 1 and Article 32 of the Convention, Poland had an obligation to ensure that its internal law is interpreted and, where necessary, amended in such a way as to avoid any repetition of the same violations, as required by Article 46 of the Convention;

Stressing that rapid remedial action is required to ensure the lawful composition of the Constitutional Court, by allowing lawfully elected judges to adjudicate and by excluding those judges whose election cannot be regarded as lawful, to address the status of decisions already adopted in cases concerning constitutional complaints with the participation of irregularly appointed judge(s), as well as to adopt measures to prevent external undue influence on the appointment of Constitutional Court’s judges in the future;

UNDERLINED that compliance with the obligation voluntarily entered into by Poland under Article 46 of the European Convention to abide by the judgments of the European Court is binding and unconditional and remains so, regardless of any barriers which may exist within the national legal framework;

DEEPLY REGRETTED in this context the current position of the authorities, which essentially indicates that the Constitutional Court’s decision of 24 November 2021 in the case K 6/21 constitutes an obstacle to the adoption of relevant general measures;

CALLED AGAIN on the authorities therefore to review their position and to come forward rapidly with proposals regarding the measures necessary to execute this judgment, in particular as regards the need to ensure that the Constitutional Court is composed of lawfully elected judges, to address the status of decisions already adopted with the participation of irregularly appointed judge(s) and to propose measures to prevent external undue influence on the appointment of judges in the future;

CALLED ON THEM FURTHER to examine thoroughly the possible options for ensuring restitutio in integrum to the maximum extent possible for the applicant company;

DECIDED to resume consideration of this case at its 1483 rd meeting (December 2023) (DH) in the light of the information to be provided by the authorities by 15 September 2023.