International bodies like the ECtHR should not easily substitute their assessment for that of national judges who have analysed a human-rights issue ‘properly’. So much is dictated by subsidiarity; and it would be paradoxical if this principle were ignored when reviewing compliance with Convention provisions that require respect for the applicable national rules. Article 6, to the extent that it guarantees the right to “a tribunal established by law”, is such a provision. Yet in two recent judgments – Astradsson v. Iceland and Xero Flor v. Poland – the ECtHR had no problem overturning domestic-court decisions concerning the lawfulness of the composition of the benches that had “determined” the applicant’s “civil rights” or “a criminal charge against” him.  

Naturally, the two Strasbourg rulings (the first by the Grand Chamber and the second by the First Section) did not come out of the blue. The domestic proceedings involving Astradsson and Xero Flor were preceded by separate court actions resulting in pronouncements leaving little doubt as to the illegality of the initial appointment as a judge of one of those who ended up hearing either applicant’s case. However, these appointments had not been quashed. (The ‘separate actions’ concerned damages or the ‘abstract review’ of constitutionality.) Moreover, subsequent decisions added a gloss over the findings on the initial appointments’ illegality. In Astradsson the Icelandic Supreme Court considered that the original breach had been cured; legal certainty would have been seriously compromised had the judge in question been ‘disqualified’. A more radical change of judicial heart took place in Xero Flor; a five-member “bench” of the Polish Constitutional Court decided to regularise the situation of three of this court’s members whose appointment had been deemed unlawful on several occasions by the “full bench”. (According to the latter, the seats on which the three had been elected should not have been considered vacant.)

The ECtHR took issue with the glossing-over in both instances. In Astradsson it second-guessed the national court’s balancing of legality against certainty. In Xero Flor it went further finding no convincing reasons for the sudden reversal in the case law. The Chamber judgment seems, therefore, more courageous than the GC one – a view that is also borne out by the fact that Xero Flor does not contain the Astradsson ‘rider’ to the effect that the Strasbourg finding of violation would not require reopening all decisions issued by the illegally appointed judges (and presumably their successors). It is, of course, easy to link the bold stance taken in Xero Flor to the political context of the ‘Polish constitutional crisis’; the judgment makes many critical references indeed to the Polish lower house’s manifold attempts to force the ‘three judges’ upon the Constitutional Court. However, these attempts were initially resisted by the full bench and the judgment does not try to establish that the composition of the five-member bench that finally regularised their situation had been manipulated (for a rare hint see § 273). Xero Flor might, therefore, deserve a non-contextualised reading. The ECtHR has always reserved for itself the power to find a violation of Article 6 when national law has been interpreted in an “arbitrary or manifestly unreasonable” manner. And, as already seen, the crux of the problem in the Polish case seems to be the unexplained abandonment (by the ‘regularising bench’) of clear precedent (established by the full bench).

A decontextualised reading of Xero Flor might also militate against acceding to a request to refer the case to the GC; arguably, it does not raise any new “serious question affecting the interpretation of the Convention”. However, the GC also looks at “serious issues of general importance”; and it was not by accident that Xero Flor was decided before many other ‘rule-of-law’ Polish cases.

Independently, however, of who will have the final word in Xero Flor, it is unlikely that the case will be forgotten. For one thing and despite appearances, it is all about subsidiarity. Strasbourg should not accept that domestic-court human-rights decisions can be safely relied on before making sure that the judges who issue them enjoy all necessary safeguards. And applying a strict-scrutiny standard when examining whether a tribunal has been “established by law” covers a lot of ground towards achieving this.