FOURTH SECTION
DECISION
Application no. 31264/04
by Piotr WIECZOREK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 18 May 2010 as a Chamber composed of:
and ,
Having regard to the above application lodged on 12 August 2004,
Having regard to the declaration submitted by the respondent Government on 26 October 2009 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Piotr Wieczorek, is a Polish national who was born in 1974. He is currently serving a prison sentence in Wronki prison. The Polish Government (“the Government”) were represented by their Agent, Mr J.  Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 October 2003 the Poznań Regional Court convicted the applicant of murder and sentenced him to twenty-five years' imprisonment. Judge M.S. from the District Court, delegated under section 77 § 1 of the Law on Common Courts to carry out judicial duties in the Regional Court for a limited period of time, sat on the bench.
On 23 March 2004 the Poznań Court of Appeal upheld the first‑instance judgment.
On 22 April 2004 the applicant submitted his own cassation appeal. On 3 June 2004 the Poznań Court of Appeal assigned a legal‑aid lawyer to represent the applicant with a view to lodging a cassation appeal.
In a letter to the court dated 22 June 2004 the lawyer informed that he had found no grounds on which to prepare a cassation appeal.
In a letter to the applicant dated 2 July 2004 the Poznań Court of Appeal informed him about the lawyer's refusal and that it was open to him to find a new lawyer to prepare a cassation appeal within a seven days' time‑limit. The court refused to assign another legal-aid lawyer to the case.
In a letter dated 26 July 2004 the Poznań Court of Appeal summoned the applicant to rectify a formal shortcoming of his cassation appeal of 22 April 2004 by submitting an appeal signed by a lawyer. The applicant failed to do so.
On 1 September 2004 the President of the Poznań Court of Appeal refused to examine the applicant's cassation appeal because it had not been prepared and signed by a lawyer.
On a later unknown date the applicant requested that legal aid be granted to him for the purpose of lodging an interlocutory appeal with the Supreme Court against the decision of 1 September 2004.
On 22 September 2004 the Poznań Court of Appeal assigned a legal‑aid lawyer for this purpose. On 4 October 2004 the lawyer informed the court that he had found no grounds on which to prepare an appeal.
On 7 October 2004 the court informed the applicant of the refusal and that it was open to him to find a privately hired lawyer to submit an interlocutory appeal.
On 26 October 2004 the President of the Poznań Court of Appeal refused to examine an interlocutory appeal which had been prepared by the applicant himself.
In July 2007 the Supreme Court adopted a resolution declaring that a bench to which a judge was delegated by either the Secretary or the Under‑Secretary of State, not by the Minister of Justice, was not a “tribunal established by law”.
On 30 July 2007 the applicant asked the court to indicate the authority which had assigned judge M.S., who had been sitting in his case in the Poznań Regional Court, to that court. In a letter dated 7 August 2007 he was informed that the judge in question had been assigned by a decision given by the Under‑Secretary of State at the Ministry of Justice. In a letter dated 21 August 2007 the applicant, referring to the Supreme Court's decision of July 2007, requested the Poznań Regional Court to quash the judgment. There was no reply to this letter.
Relevant domestic law
Article 180 §§ 1 and 2 of the Constitution read:
“1.  Judges shall not be removable.
2.  Removal of a judge from office, suspension from office, assigning a judge another bench or position against his will, may only occur by virtue of a court judgment and only in situations prescribed in a statute. “
In a decision of 15 June 2007 (III CZP 36/07) the Supreme Court held that the Minister of Justice's competence to assign judges to carry out judicial duties in courts different from those to which they were normally assigned, provided for by section 77 § 1 of the Law on Common Courts, could be delegated only to the Secretary of State.
In a resolution of 17 July 2007 (III CZP 81/07) the Supreme Court held, that that competence could not be delegated by the Minister of Justice to any other persons.
Subsequently the President of the Supreme Court requested the full composition of that court to adopt a resolution with a view to harmonising the case‑law.
On 14 November 2007 the Supreme Court, sitting as a full bench, issued a resolution (BSA I-4110-5/07). It recounted the history of the relevant case-law and noted discrepancies between the approaches taken so far by various composition of that court.
It noted that one of the fundamental principles of the administration of justice was that a judge was to carry out his or her function in a given court, determined in the nomination act. However, the laws governing judicial organisation allowed for judges to be assigned to another court with a view to carrying out their judicial duties for limited periods of time. The view expressed in the decision of 17 July 2007 that assignment of a judge to another court was per se incompatible with the separation of powers and with the citizens' right of access to a competent, independent and impartial tribunal could not be upheld. The Constitution, having regard to the importance of the judicial independence and to the relationship between that independence and judicial irremovability, circumscribed the circumstances in which a judge could be removed or assigned to another court against his or her will to the situations described in its Article 180. However, an assignment of a judge to a different court with his or her consent was of a radically different character, precisely because the judge was able to agree to it or to refuse.
The decision to assign a judge to another court, with his or her consent to be expressed in the manner and in the procedure determined by the law, was an act of a merely organisational character. Such decisions served the rational purpose of human resources management, with a view to ensuring that cases be examined by the courts diligently, without delays and interruptions. Hence, the approach followed by the decision of 17 July 2007 that the very fact of a judge being assigned to another court by a decision of the executive power had to be seen as an interference with judicial independence could not be endorsed. Moreover, it blurred the distinction between a re‑assignment made with the judge's consent and without such consent to which the Constitution attached considerable weight.
Further, there were no legal impediments in the provisions governing the functioning of the executive for the Minister of Justice to delegate to other persons the exercise of his or her competence to assign judges to different courts for determined periods of time.
The Supreme Court concluded that the Secretary and Under‑Secretary of State were competent to exercise the Minister's competence to assign judges to courts different from those where they normally carried out their judicial functions.
On 15 January 2009 the Constitutional Court gave a judgment (K 45/07) in reply to a request brought by the National Judicial Council to examine the compatibility with the Constitution of certain provisions of the Law on Common Courts. It examined, inter alia, its provisions conferring on the Minister of Justice's competence to assign judges to another court and their relationship to the principle of division of powers, to the constitutional guarantees of judicial independence and to the right of access to a court. It stressed the importance of the judicial independence and indicated that it was ensured by a number of the constitutional guarantees, such as stability of judicial posts, irremovability of judges, judicial immunity, disciplinary responsibility of judges determined in special judicial proceedings, appropriate conditions of work and remuneration consistent with the dignity of judicial office, ban on judges belonging to political parties and trade unions or on other public activities incompatible with the principles of independence.
It fully shared the conclusions of the Supreme Court concerning assigning judges to other courts. It observed, in particular, that assigning a judge to another court, with his or her consent, did not breach the constitutional right of access to a court and was compatible with the judicial independence.
COMPLAINTS
The applicant complained that the legal‑aid lawyer had refused to prepare a cassation appeal to the Supreme Court and that that refusal had deprived him of his right of access to that court. He also submitted that another legal‑aid lawyer had refused to draw up an interlocutory appeal against the decision rejecting his own cassation appeal.
The applicant complained about the outcome and unfairness of the proceedings, in particular that the courts dealing with his case had wrongly established the facts and assessed evidence.
In a letter dated 22 October 2007 the applicant complained that the court which had decided his case had not been a “tribunal established by law” within the meaning of Article 6 of the Convention. He submitted that one of the judges sitting in his case in the first‑instance court had been delegated to that court by a decision of the Under-Secretary of State at the Ministry of Justice, whereas pursuant to the decision given by the Supreme Court on 17 July 2007 the constitutional competence to delegate judges to courts was vested only with the Minister of Justice.
THE LAW
1.  The applicant complained that he had been denied an effective access to a court since the legal-aid lawyer had refused to prepare a cassation appeal for examination by the Supreme Court. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
 “In the determination of the criminal charges against him ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”
By letter dated 26 October 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government hereby wish to express - by way of unilateral declaration — its acknowledgement of denial of access to a court in the determination of the criminal charges against [the applicant] and therefore [of] a violation of Article 6 § 1 read together with Article 6 § 3 (c ) of the Convention.
In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 4,500 (four thousand five hundred Polish zlotys) which they consider to be reasonable in the light of the Court's case-law.
The sum referred to above, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three‑month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government would suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases as referred to in Article 37 § 1 (c) of the Convention”.
 The applicant was requested to express his view on the Government's declaration. In a letter of 7 December 2009 the applicant stated that the sum mentioned in the Government's declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
 The Court has established in a number of cases its practice concerning complaints about the violation of one's right of access to the Supreme Court in criminal proceedings (see Antonicelli v. Poland, no. 2815/05,  May 2009; Kulikowski v. Poland, no. 18353/03, 2009‑... (extracts)).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed, which is consistent with awards in similar cases, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
2.  The applicant complained about the outcome and unfairness of the proceedings, in particular that the courts dealing with his case had wrongly established the facts and assessed evidence.
The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.
Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
3.  
Under Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six  from the date on which the final decision was taken. The criminal proceedings against the applicant were terminated, at the latest, by a decision of 26 October 2004, which is more than   before 22 October 2007, the date on which he submitted this complaint to the Court.
Article 35 § 1 of the Convention, the Court considers that this complaint is manifestly ill‑founded for the following reasons:
The Court reiterates that the expression “a   by ”. reflects the principle of the rule of law, which is inherent in the system of protection established by the Convention and its Protocols. “Law”, within the meaning of Article 6 § 1, comprises in particular the legislation on the establishment and competence of judicial organs (see, , , no. 58442/00, § 114, 28 November 2002). Accordingly, if a tribunal does not have jurisdiction to try a defendant in accordance with the provisions applicable under domestic law, it is not “established by law” within the meaning of Article 6 § 1 (compare , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, ECHR 2000-VII, §§ 99, 107-08).
The object of the term “established by law” in Article 6 of the Convention is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament. In countries where the law is codified, organisation of the judicial system cannot be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (see Coëme and Others v. Belgium, cited above, § 98, ECHR 2000‑VII; Gurov v. Moldova, no. 36455/02, § 34, 11 July 2006).
The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000; Posokhov v. Russia, . 63486/00, § 39, ECHR 2003‑IV). A tribunal established by law must satisfy a series of conditions such as the independence of its members and the length of their terms of office, impartiality and the existence of procedural safeguards (see Coëme and Others v. Belgium, cited above, § 99).
In the present case discrepancies arose between the decisions of various compositions of the Supreme Court as to which authority was competent to assign judges, under section 77 § 1 of the Law on Common Courts, to sit on benches of courts different from those to which they had been assigned in the original nomination. Having regard to these discrepancies, the President of the Supreme Court submitted a motion to the full composition of that court, requesting that a resolution be adopted with a view to unifying the case-law.
The Court has already held that divergences in case-law are an inherent consequence of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction, and that the role of a supreme court is precisely to resolve conflicts between decisions of the courts below (see  [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999-VII; Plechanow v. Poland, no. 22279/04, § 107, 7 July 2009). In a resolution of 14 November 2004, adopted by the full composition of the Supreme Court, that court accomplished this task.
The Supreme Court carefully examined, in particular, the relationship between the Minister's competence to assign a judge to another court to carry out his or her judicial duties and judicial independence. It drew a distinction between the Minister's duties related to the organisational and administrative sphere of the judicial system, including his or her duties to organise it in such a way as to ensure expeditious examination of cases, and his or her duties relating to the respect for judicial independence.
It further made note of the difference between a judge being assigned to another court without his or her assent and such an assignment carried out with the judge's full consent. It noted that only the latter was possible under section 77 § 1 of the Law on Common Courts and that the existence of consent was decisive for the assessment of his or her assignment to another court. The Supreme Court was of the view that the existence of the judge's consent was an essential factor to be weighed in the assessment of whether his or her assignment had a bearing on judicial independence. Such consent being an essential requirement for the judge to be assigned to work in another court, the Supreme Court concluded that the Secretary and Under‑Secretary of State were competent to exercise the Minister's competence to assign judges to courts different from those where they normally carried out their judicial functions.
Having regard to the general principle according to which it is in the first place for the national courts themselves to interpret the provisions of domestic law, the Court reiterates that its jurisdiction to review the correctness of the judicial application of the domestic law is limited (see, Bugajny and Others v. Poland, no. 22531/05, §§ 65-66, 6 November 2007). It considers that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, Lavents v. Latvia, no. 58442/00, § 114 in fine, 28 November 2002; Jorgic v. Germany, no. 74613/01, § 65, ECHR 2007‑IX (extracts)).
Moreover, the Court is satisfied, in the light of the reasoning of the Supreme Court, that that court attached due weight to the guarantees of judicial independence and impartiality in the context of voluntary assignment of judges, under a decision given by either the Secretary or Under‑Secretary of State, to sit on benches of courts different from their own. The Court is of the view that the stand taken by the Supreme Court is fully compatible with respect for judicial independence and for separation of judicial and executive powers.
Lastly, the Court notes that it has not been shown or argued that the realities of the applicant's case were such as to enable the fact that judge M.S. had been assigned to the Regional Court to cast any doubt on that judge's impartiality or independence, factors closely related to the notion of “a tribunal established by law”. Nor has it been suggested, let alone shown, that the assignment of this judge to the Regional Court was tainted by any circumstances capable of casting doubt on its voluntary character.
In the light of the above, the Court is unable to conclude that the panel of the Poznań Regional Court was not “a tribunal established by law”, within the meaning of Article 6 § 1 of the Convention, when dealing with the criminal case against the applicant.
Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court

Takes note of the terms of the respondent Government's declaration under Article 6 § 1 of the Convention concerning access to the Supreme Court and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides by majority to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares unanimously the remainder of the application inadmissible.
	Lawrence Early	Nicolas Bratza 
	Registrar	President