FIRST SECTION
CASE OF DOLIŃSKA-FICEK AND OZIMEK v. POLAND
(Applications nos. 49868/19 and 57511/19)
 
 
JUDGMENT
Art 6 (civil) • Tribunal established by law • Manifest breaches in appointment of judges to newly established Supreme Court’s Chamber of Extraordinary Review and Public Affairs following legislative reform • Application of three-step test formulated in Guðmundur Andri Ástráðsson v. Iceland [GC] • Lack of independence of National Council of the Judiciary from legislature and executive • President of Poland’s appointment of judges to the Chamber despite stay of the implementation of the applicable resolution pending judicial review • No directly available procedure or remedies to challenge alleged defects
 
STRASBOURG
8 November 2021
FINAL
 
08/02/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dolińska-Ficek and Ozimek v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Ioannis Ktistakis, judges,
 Michał Balcerzak, ad hoc judge,
and Renata Degener, Section Registrar,
Having regard to the applications (nos. 49868/19 and 57511/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Ms Monika Dolińska-Ficek and Artur Ozimek (“the applicants”), on 12 September and 22 October 2019 respectively;
the decision to give notice to the Polish Government (“the Government”) of the applications;
the decision to give priority to the applications (Rule 41 of the Rules of Court);
the decision of the President of the Section to appoint Mr Michał Balcerzak to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court), Mr Krzysztof Wojtyczek, the judge elected in respect of Poland, having withdrawn from sitting in the case (Rule 28 § 3);
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the Polish Commissioner for Human Rights and the International Commission of Jurists, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 19 October 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants are judges who had applied for vacant judicial posts in other courts but were not recommended for those posts by the National Council of the Judiciary (the “NCJ”). They complained that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which examined their appeals against the resolutions of the NCJ, had not been an “independent and impartial tribunal established by law”. They alleged a breach of Article 6 § 1 of the Convention. THE FACTS
2. The applicants were born in 1979 and 1966 respectively and live in Siemianowice Śląskie and Lublin. They were represented by Ms S. Gregorczyk‑Abram and Ms M. Ejchart-Dubois, lawyers practising in Warsaw. 3. The Polish Government (“the Government”) were represented by their Agent Mr J. Sobczak, of the Ministry of Foreign Affairs. THE BACKGROUND TO THE CASENational Council of the Judiciary

4. The National Council of the Judiciary (Krajowa Rada Sądownictwa, hereinafter “the NCJ”) is a body which was introduced in the Polish judicial system in 1989, by the Amending Act of the Constitution of the Polish People’s Republic (ustawa z dnia 7 kwietnia 1989 r. o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej). 5. Its organisation was governed by the 20 December 1989 Act on the NCJ as amended and superseded on several occasions (ustawa z dnia 20 grudnia 1989 r. o Krajowej Radzie Sądownictwa). The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges at different levels, and from different types of court, within the judiciary. 6. The 1997 Constitution of the Republic of Poland provides that the purpose of the NCJ is to safeguard the independence of courts and judges (see paragraph 82 below). Article 187 § 1 governs the composition of its twenty-five members: seventeen judges (two sitting ex officio: the First President of the Supreme Court, the President of the Supreme Administrative Court and fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts); four Members of Parliament chosen by the Sejm; two members of the Senate; the Minister of Justice, and one person indicated by the President of the Republic of Poland (“the President” or “the President of Poland”). 7. The subsequent Act of 12 May 2011 on the National Council of the Judiciary (Ustawa o Krajowej Radzie Sądownictwa – “the 2011 Act on the NCJ”), in its wording prior to the amendment which entered into force on 17 January 2018, provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels within the judiciary (see paragraph 85 below). Legislative process
8. As part of the general reorganisation of the Polish judicial system prepared by the government, the Sejm enacted three new laws: the 12 July 2017 Law on amendments to the Act on the Organisation of Ordinary Courts and certain other statutes (Ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw, “Act on the Ordinary Courts”), the 12 July 2017 Amending Act on the NCJ and certain other statutes (Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw) and the 20 July 2017 Act on the Supreme Court (Ustawa o Sądzie Najwyższym). 9. The 12 July 2017 Law on amendments to the Act on the Ordinary Courts and certain other statutes was signed by the President of Poland on 24 July 2017 and entered into force on 12 August 2017. 10. On 31 July 2017 the President vetoed two acts adopted by the Sejm: one on the Supreme Court and the Amending Act on the NCJ and certain other statutes. On 26 September 2017 the President submitted his proposal for amendments to both acts. The bills were passed by the Sejm on 8 December and by the Senate on 15 December 2017. They were signed into law by the President on 20 December 2017. New National Council of the JudiciaryElection of the new members of the NCJ

11. The Amending Act on the NCJ and certain other statutes of 8 December 2017 (ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw, “the 2017 Amending Act”) entered into force on 17 January 2018 (see paragraphs 7 above and 86 below). 12. The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a(1) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act). The positions of the judicial members of the NCJ who had been elected on the basis of the previous Act were discontinued with the beginning of the term of office of the new members of the NCJ (section 6). The election of new judicial members of the NCJ required the majority of 3/5 of votes cast by at least half of the members of the Sejm (section 11d(5)). The candidates for the NCJ were to present a list of support from either 2,000 citizens or twenty-five judges (section 11a). 13. On 5 March 2018 a list of fifteen judges, candidates for the NCJ, was positively assessed by the Commission of Justice and Human Rights of the Sejm. 14. On 6 March 2018 the Sejm, in a single vote, elected fifteen judges as new members of the NCJ. 15. On 17 September 2018 the Extraordinary General Assembly of the European Network of Councils for the Judiciary (ENCJ) decided to suspend the membership of the Polish NCJ. The General Assembly found that the NCJ no longer met the requirements of being independent from the executive and the legislature in a manner which ensured the independence of the Polish judiciary (see also paragraph 209 below). Non-disclosure of endorsement lists
16. On 25 January 2018 a Member of Parliament (“MP”), K.G.‑P., asked the Speaker of the Sejm (Marszalek Sejmu) to disclose the lists, containing names of persons supporting the candidates to the NCJ, which had been lodged with the Sejm. The MP relied on the Act on Access to Public Information (ustawa o dostępie do informacji publicznej). Her request was dismissed on 27 February 2018 by the Head of the Chancellery of the Sejm (Szef Kancelarii Sejmu). The MP appealed. 17. On 29 August 2018 the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny) gave judgment in the case (no. II SA/Wa 484/18). The court quashed the impugned decision. It considered that domestic law had not allowed any limitation of the right of access to public information in respect of attachments to the applications lodged by candidates for the NCJ containing lists of judges who had supported their candidatures. The lists of judges supporting candidates for the NCJ had to be considered as information related to the exercise of a public office by judges. The publication of endorsement lists signed by judges had to be preceded by the removal of their personal registration numbers (PESEL) as the number had not related to the exercise of public office by judges. 18. The Head of the Chancellery of the Sejm lodged a cassation appeal against the judgment. 19. On 28 June 2019 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed the cassation appeal (I OSK 4282/18). The court agreed with the conclusions of the Regional Administrative Court. It found that the attachments to the applications of candidates to the NCJ in the form of lists of citizens and lists of judges supporting the applications had fallen within the concept of public information. The limitation of this right to public information in relation to the lists of judges supporting the applications of candidates for the NCJ could not be justified by the reason that this information was related to the performance of public duties by judges. The court held that access to the list of judges supporting the applications of candidates for the NCJ should be made available after prior anonymisation of the judges’ personal registration numbers (PESEL). 20. On 29 July 2019 the Head of the Personal Data Protection Office (Prezes Urzędu Ochrony Danych Osobowych – “UODO”) decided that the endorsement lists should remain confidential and should not be published (two decisions were issued on that day, one initiated ex officio and one upon the application of Judge M.N., a member of the NCJ). 21. Appeals against the decisions of the Head of UODO were lodged by the Commissioner of Human Rights, the MP K.G.-P. and a foundation, F.C.A. On 24 January 2020 the Warsaw Regional Administrative Court quashed the decisions of 29 July 2019 (II SA/Wa 1927/19 and II SA/Wa 2154/19). The court referred to findings contained in the final judgment of the Supreme Administrative Court of 28 June 2018 which had not been enforced to date (see paragraph 19 above). 22. On 14 February 2020 the lists of persons supporting candidates to the NCJ were published on the Sejm’s website. The Supreme CourtNew Chambers

23. The Act on the Supreme Court of 8 December 2017 (“the 2017 Act on the Supreme Court”) modified the organisation of that court by, in particular, creating two new Chambers: the Disciplinary Chamber (Izba Dyscyplinarna) and the Chamber of Extraordinary Review and Public Affairs (Izba Kontroli Nadzwyczajnej i Spraw Publicznych; see paragraph 89 below). 24. The Disciplinary Chamber of the Supreme Court became competent to rule on cases concerning the employment, social security and retirement of judges of the Supreme Court (the 2017 Act on the Supreme Court, section 27(1)). The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in the Supreme Court were excluded from it (section 131). 25. The Chamber of Extraordinary Review and Public Affairs became competent to examine extraordinary appeals (skarga nadzwyczajna), electoral protests and protests against the validity of the national referendum, constitutional referendum and confirmation of the validity of elections and referendums, other public law matters, including cases concerning competition, regulation of energy, telecommunications and railway transport and cases in which an appeal had been lodged against a decision of the Chairman of the National Broadcasting Council (Przewodniczący Krajowej Rady Radiofonii i Telewizji), as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court (section 26). Appointments of judges
(a)   Act announcing vacancies at the Supreme Court
26. On 24 May 2018 the President announced sixteen vacant positions of judges of the Supreme Court in the Disciplinary Chamber (obwieszczenie Prezydenta, Monitor Polski – Official Gazette of the Republic of Poland of 2018, item 633). By the same act the President announced other vacant positions at the Supreme Court: twenty in the Chamber of Extraordinary Review and Public Affairs, seven in the Civil Chamber and one position in the Criminal Chamber. 27. At its sessions held on 23, 24, 27 and 28 August 2018, the NCJ closed competitions for vacant positions of judges at the Supreme Court. (b)   Disciplinary Chamber
28. On 23 August 2018 the NCJ issued a resolution (no. 317/2018) recommending twelve candidates for judges of the Disciplinary Chamber and submitted the requests for their appointment to the President. 29. On 19 September 2018 the President decided to appoint ten judges, from among those recommended by the NCJ, to the Disciplinary Chamber of the Supreme Court. On 20 September 2018 the President handed the letters of appointment to the appointed judges and administered the oath of office to them. (c)   Chamber of Extraordinary Review and Public Affairs
30. On 28 August 2018 the NCJ issued a resolution (no. 331/2018) recommending twenty candidates to be appointed as judges of the Chamber of Extraordinary Review and Public Affairs and submitted the requests for their appointment to the President. The judges recommended by the NCJ included M.S., J.L. and G.Z., who dealt with the first applicant’s case, and J.N., M.D., K.W, who dealt with the second applicant’s case (see paragraphs 75 and 81 below). The NCJ decided not to recommend other candidates who had applied for the post at the Chamber of Extraordinary Review and Public Affairs. Some non-recommended candidates appealed against that resolution to the Supreme Administrative Court which, on 27 September 2018, stayed its implementation (see paragraphs 36‑37 below)
31. On 10 October 2018, while the appeals were pending, and in spite of the Supreme Administrative Court’s decision to stay the implementation of resolution no. 331/2018, the President of Poland handed the letters of appointment to persons recommended by the NCJ. The President decided to appoint nineteen judges, as recommended by the NCJ on 28 August 2018, to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. The twentieth candidate to be appointed, Judge A.S., was appointed by the President on 30 January 2019 after he had relinquished a foreign nationality. On 20 February 2019 the President handed him the letter of appointment and administered the oath of office. (d)   Criminal and Civil Chambers
32. On 24 August 2018 the NCJ issued a resolution (no. 318/2018) recommending one candidate for the position of judge of the Criminal Chamber of the Supreme Court. 33. On 28 August 2018 the NCJ issued a resolution (no. 330/2018) recommending seven candidates for judges of the Civil Chamber of the Supreme Court. 34. On 10 October 2018 the President decided to appoint one judge to the Criminal Chamber and seven judges to the Civil Chamber of the Supreme Court, as recommended by the NCJ on 24 and 28 August 2018. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. Appeals against the NCJ resolutions recommending judges for appointment to the Supreme Court
(a)   Disciplinary Chamber
35. On 25 and 27 September and 16 October 2018 the Supreme Administrative Court dismissed requests lodged by various appellants to stay the implementation (o udzielenie zabezpieczenia) of the NCJ’s resolution no. 317/2018 recommending candidates for appointment to the Disciplinary Chamber (see paragraph 28 above). The court noted that the NCJ resolution of 23 August 2018 had been delivered to the candidate G.H. on 14 September 2018, and he had lodged his appeal with the Supreme Administrative Court on 17 September 2018. However, on 19 September 2019 the President had appointed the judges recommended by the NCJ. NCJ resolution no. 317/2018 had therefore been enforced, which precluded any stay of implementation. (b)   Chamber of Extraordinary Review and Public Affairs
36. On various dates, some candidates who had not been recommended by the NCJ for appointment to the Chamber of Extraordinary Review and Public Affairs lodged appeals with the Supreme Administrative Court against NCJ resolution no. 331/2018 of 28 August 2018 (see also paragraph 30 above). 37. On 27 September 2018 the Supreme Administrative Court (case no. II GW 28/18) gave an interim order staying the implementation of that resolution in its entirety, that is to say both in the part recommending twenty candidates to the Chamber of Extraordinary Review and Public Affairs and in part not recommending other candidates, including the appellant K.L. 38. On 22 November 2018 the Supreme Administrative Court stayed the examination of the appeals lodged against NCJ resolution no. 331/2018 pending the examination of its request for a preliminary ruling (pytanie prejudycjalne) to the Court of Justice of the European Union (“CJEU”) in the context of another NCJ resolution (resolution no. 330/2018; request for a preliminary ruling made by Supreme Administrative Court of 21 November 2018; the CJEU Case C-824/18, A.B. and Others; see paragraphs 44 and 194 below). 39. On 21 September 2021 the Supreme Administrative Court gave judgments in six cases where appeals had been lodged by unsuccessful candidates against NCJ resolution no. 331/2018. The court firstly decided to annul NCJ resolution no. 331/2018 in the part concerning the recommendation of twenty candidates for appointment to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (uchylił w całości, case no. II GOK 10/18). In consequence, the part of NCJ resolution no. 331/2018 recommending six judges who had sat in the applicants’ case, and on the basis of which they had been appointed by the President on 10 October 2018, was annulled. As regards the part of resolution no. 331/2018 concerning the NCJ’s refusal to recommend certain other candidates, the Supreme Administrative Court annulled it in so far as it concerned the appellants (see also case nos. II GOK 8/18, 11/18, 12/18, 13/18, 14/18). No written reasons for the judgment have been published as of the date of adoption of the Court’s judgment. (c)   Criminal and Civil Chambers
(i)      Stay of implementation of the NCJ’s resolutions
40. On 25 September 2018 the Supreme Administrative Court (case no. II GW 22/18) stayed the implementation of the NCJ resolution of 24 August 2018 (no. 318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D. 41. On 27 September 2018 the Supreme Administrative Court (case no. II GW 27/18) stayed the implementation of the NCJ resolution of 28 August 2018 (no. 330/2018; see paragraph 33 above) recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and not recommending other candidates, including the appellant I.J. The court noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20 September 2018 although it had been obliged to do so under the law. (ii)    Case of A.B. (II GOK 2/18)
42. On 1 October 2018 Mr A.B. lodged an appeal against the NCJ’s resolution of 28 August 2018 (no. 330/2018; see paragraph 33 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the implementation of the resolution. 43. On 8 October 2018 the Supreme Administrative Court (case no. II GW 31/18) stayed the implementation of the impugned resolution. The court noted that A.B.’s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court. 44. On 26 June 2019 the Supreme Administrative Court made a request for a preliminary ruling to the CJEU and the latter gave judgment on 2 March 2021 (A.B. and Others, Case C-824/18; see also paragraphs 42-48 and 194-196 below). 45. On 6 May 2021 the Supreme Administrative Court gave judgment (case no. II GOK 2/18). It quashed the impugned NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. As regards the part of the resolution concerning the refusal to recommend certain other candidates it quashed it in so far as it concerned the appellant, A.B. (see also paragraphs 152‑155 below). 46. In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 191-196 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph 153 below). 47. The court also noted that it did not appear that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 198 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1 October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates. 48. Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 97‑111 and 114-129 below), that the President’s announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister. The CJEU judgment of 19 November 2019 (Joined Cases C‑585/18, C-624/18, C-625/18)
49. In August and September 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling. The opinion of Advocate General Tanchev in those cases, delivered on 27 June 2019, analysed the qualifications required by the NCJ with reference to the Court’s case-law and concluded that the Disciplinary Chamber of the Polish Supreme Court did not satisfy the requirements of judicial independence (see paragraph 192 below). 50. The CJEU delivered a judgment on 19 November 2019 in which it considered that it was for the national court, i.e. the Supreme Court, to examine whether the Disciplinary Chamber of the Supreme Court was an independent and impartial tribunal. The CJEU clarified the scope of the requirements of independence and impartiality in the context of the establishment of the Disciplinary Chamber so that the domestic court could itself issue a ruling (see paragraph 193 below). The Supreme Court’s rulingsJudgment of 5 December 2019

51. On 5 December 2019 the Chamber of Labour and Social Security of the Supreme Court issued the first judgment in cases that had been referred for a preliminary ruling to the CJEU (case no. III PO 7/180; see paragraph 49 above and paragraph 97 below). The Supreme Court concluded that the NCJ was not an authority that was impartial or independent from legislative and executive branches of power. Moreover, it concluded that the Disciplinary Chamber of the Supreme Court could not be considered a court within the meaning of domestic law and the Convention. Resolution of 8 January 2020
52. On 8 January 2020, in response to the above judgment of the Chamber of Labour and Social Security, the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution in which it interpreted the consequences of the CJEU judgment narrowly (I NOZP 3/19, see paragraph 112 below). The resolution was issued in a composition of seven judges of the Chamber of Extraordinary Review and Public Affairs: E.S., L.B., T.D., A.R., M.S., A.S. and K.W. Judges M.S. and K.W. also sat in the applicants’ cases (see paragraphs 75 and 81 below). The Chamber found that a resolution of the NCJ recommending to the President candidates for the post of judge could be quashed upon an appeal by a candidate only in situations where the appellant proved that the lack of independence of the NCJ had adversely affected the content of the impugned resolution, or provided that the appellant demonstrated that the court had not been independent or impartial according to the criteria indicated in the CJEU judgment. In respect of the latter, the Chamber stressed that the Constitution had not allowed for a review of the effectiveness of the President’s decision concerning the appointment of judges. When dealing with such appeals the Supreme Court was bound by the scope of the appeal and had to examine whether the NCJ had been an independent body according to the criteria determined in the CJEU judgment 19 November 2019 (in paragraphs 134‑144 thereof). Resolution of 23 January 2020
53. On 23 January 2020 three joined Chambers of the Supreme Court issued a joint resolution (see paragraphs 114-129 below). The court agreed with the assessment in the judgment of 5 December 2019 that the NCJ had not been an independent and impartial body and that this had led to defects in the procedures for the appointment of judges carried out on the basis of the NCJ’s recommendations. With respect to the Chamber of Extraordinary Review and Public Affairs, the Supreme Court noted in particular that it was composed solely of judges who were newly appointed through the procedure involving the NCJ as established under the 2017 Amending Act. Moreover, this Chamber was the only body competent to examine appeals against the resolutions of the NCJ concerning the recommending of judges to all courts in Poland (see paragraph 128 below). In consequence, according to the resolution, court formations including Supreme Court judges appointed in the procedure involving the NCJ were unduly composed within the meaning of the relevant provisions of the domestic law. Constitutional CourtCase concerning CJEU interim order of 8 April 2020 (case no. P 7/20)

54. On 9 April 2020 the Disciplinary Chamber of the Supreme Court made a request to the Constitutional Court seeking a ruling on the constitutionality of the interim measures order issued by the CJEU on 8 April 2020 (suspending the operation of the Disciplinary Chamber in respect of disciplinary cases against judges; see also paragraph 198 below). 55. On 11 May 2021 the Polish Commissioner for Human Rights, who had meanwhile joined the proceedings, asked the Constitutional Court to exclude Judge J.P. from sitting in the case. The Commissioner relied on the Court’s judgment in the case of Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, 7 May 2021), and argued that Judge J.P. had been elected in breach of an identical fundamental rule applicable to the election of the Constitutional Court, as had been the case of Judge M.M. (see paragraph 142 below). Accordingly, the Constitutional Court, sitting in a composition including Judge J.P., could not be considered a “tribunal established by law” within the meaning of Article 6 of the Convention. 56. On 15 June 2021 the Constitutional Court dismissed the Commissioner’s request for the exclusion of Judge J.P.. With respect to the Court’s judgment in Xero Flor w Polsce sp. z o.o., cited above, the Constitutional Court held:
“2.2. In the opinion of the Constitutional Court, the judgment of the ECtHR of 7 May 2021, to the extent to which it refers to the Constitutional Court, is based on theses testifying to a lack of knowledge of the Polish legal order, including fundamental systemic assumptions determining the position, system and role of the Polish Constitutional Court.

Outcome for Article 6: violation