Case: Case 4907/18 

Descriptors: Natural judge principle 

In the lawsuit, the Polish company Xero Flor alleged before the ECHR the breach of article 6.1 of the European Convention on Human Rights, inasmuch as the Constitutional Court that heard his case had been appointed in clear violation of the Polish Constitution. Specifically, the plaintiff argues that three magistrates had been illegally appointed, without attending to the legally established appointment process, by virtue of which the Sejm (lower house of the Polish Parliament) of the previous legislature would have approved appointments, ignored by the Sejm of the later legislature. This being a violation of the right to enjoy a court predetermined by law.

To resolve the question regarding what is considered a “Court predetermined by Law”, the European Court of Human Rights resorts to its jurisprudence, and especially to the case Guðmundur Andri Ástráðsson v Iceland, which establishes a test that is based on three questions: Is there a manifest violation of the national law, objective and genuinely identifiable? Does this violation entail the inability to preserve an autonomous action free from interference by the judges? In other words, is the rule of law and the separation of powers violated? And, finally, does the action of the national court entail, in the strict sense, a violation of the right to a judge predetermined by law contained in the Convention? (paragraph 247-251).

The Court considers that there is indeed a violation of Article 6.1 ECHR, since the appointments approved by the Polish government would have rendered the right to enjoy a Court predetermined by law effective.

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