Waldemar DUDA v Poland - 25543/09 [2012] ECHR 364 (14 February 2012)

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The European Court of Human Rights (Fourth Section), sitting on 14 February 2012 as a Chamber composed of:

David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the declaration dated 30 November 2011 submitted by the respondent Government on 7 December 2011 requesting the Court to strike the application out of the list of cases,

The applicant, Mr Waldemar Duda, is a Polish national who was born in 1969 and lives in Zabrze. 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 14 May 2003 the Zabrze District Court acquitted the applicant of the charge. On an unspecified date the Gliwice Regional Court quashed the acquittal and remitted the case to the trial court.

On an unspecified date in 2007 the applicant lodged with the Gliwice Regional Court a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) but did not pay the required court fee of 100 Polish zlotys. The court requested the applicant to rectify his complaint within seven days which he failed to do. On 4 April 2007 the Gliwice Regional Court returned the applicant’s complaint unexamined.

On 7 February 2008 the Zabrze District Court convicted the applicant of domestic violence and sentenced him to five months’ imprisonment suspended on probation.

The applicant appealed. He contested, among others, that the case had been decided by an assessor.

On 18 November 2008 a panel of three judges of the Gliwice Regional Court dismissed the applicant’s request for the withdrawal of three judges who had been assigned to hear his case. It found that the applicant had not presented any arguments which could call into question the impartiality of those judges. It further observed that the previous unfavourable rulings of the Regional Court in the applicant’s civil and criminal cases had no bearing on the judges’ impartiality.

On 21 November 2008 the Gliwice Regional Court upheld the District Court’s judgment of 7 February 2008. It considered the objection as to the composition of the first-instance court unfounded since the Constitutional Court had deferred by eighteen months the repeal of the relevant provisions on the vesting in the assessors of judicial powers. It further examined and dismissed other arguments raised in the applicant’s appeal.

On 24 February 2009 the applicant’s legal-aid counsel informed him that he had found no grounds to lodge a cassation appeal in his case.

The relevant domestic law and practice regarding the status of assessors, including the landmark judgment of the Polish Constitutional Court of 24 October 2007 (case no. SK 7/06), are set out in the Court’s judgment in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 16-25, 30 November 2010.

2. The Law on the National School for the Judiciary and the Prosecution Service

On 23 January 2009 Parliament enacted the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury), which entered into force on 4 March 2009. The law establishes a comprehensive and centralised institution responsible for training judges and prosecutors.

In response to the Constitutional Court’s judgment of 24 October 2007 the Law on the National School for the Judiciary and the Prosecution Service abolished the institution of assessors as provided for by the Law of 27 July 2001 on the Organisation of Courts (section 60 (12)). Furthermore, it specifically provided that as from 5 May 2009 assessors ceased to be authorised to exercise judicial powers (section 68 (1)).

The applicant complained about the lack of independence of the assessor who had examined his case at the first-instance level. He relied on Article 6 § 1 of the Convention which provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

By letter dated 30 November 2011 which was received on 7 December 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

“...the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the first-instance court which dealt with the applicant’s case, sitting as an assessor, was not an independent tribunal, as required by Article 6 § 1 of the Convention. ...

In these circumstances, and having regard to the Court’s judgment of 30 November 2010 in the case of Henryk Urban and Ryszard Urban v. Poland in which it stated that the fact of acknowledging the violation of the applicants’ right to have their case heard by an independent tribunal, as guaranteed by Article 6 § 1 of the Convention, constitutes in itself sufficient just satisfaction for non-pecuniary damage and that the State’s legal actions (i.e. adoption of the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury) on 23 January 2009) to remedy the shortcomings underlying the institution of assessors by abolishing it and introducing new, comprehensive and centralised system for training judges effectively remedied the lack of independence of assessors within the Polish judiciary system, the Government submit that their unconditional acknowledgment of the fact that the applicant’s right under Article 6 § 1 of the Convention was restricted should be found by the European Court a sufficient redress for any damage suffered by the applicant as a result of his case being decided by an assessor before the first-instance court. (...)

The Government would respectfully 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 Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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”.

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

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 (see Martyna v. Poland (dec.), no. 72040/01, 15 January 2008; Gołubowski and 6 other applications v. Poland (dec.), nos. 21506/08, 22650/08, 34732/08, 41594/08, 55405/08, 38781/09 and 49198/09, 5 July 2011). 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 judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75-77, ECHR 2003 VI).

The Court recalls that it has already dealt with the institution of Polish assessors from the standpoint of Article 6 of the Convention. In Henryk Urban and Ryszard Urban v. Poland (no. 23614/08, 30 November 2010), its leading judgment on the issue, the Court examined in detail the question of the independence of a “tribunal” composed of an assessor in terms of conformity with the requirements of Article 6 § 1 and found, inter alia, as follows:

“48. The Constitutional Court considered the status of assessors in its leading judgment of 24 October 2007. It held that section 135 § 1 of the 2001 Act, providing that the Minister of Justice could confer the exercise of judicial powers on assessors, fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence, notably vis-à-vis the Minister. The Court notes that in its analysis of the question of the independence of assessors the Constitutional Court referred to the Strasbourg case-law and observed that Article 45 of the Constitution was modelled on Article 6 § 1 of the Convention (...).

51. (...) The Court notes that the Constitutional Court’s findings were made in the context of an abstract review of the constitutionality of statutory provisions but, mindful of the principle of subsidiarity, considers that they may be applied to the facts of the present case, having regard to the similarity between the constitutional and the Convention requirements in so far as judicial independence is concerned and the reliance of the Constitutional Court on the relevant jurisprudence of the Court. (...) The important consideration for this Court is that the Constitutional Court found that the manner in which Poland had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under Article 45 § 1 of the Constitution, guarantees which are substantively identical to those under Article 6 § 1 of the Convention.

52. The Court underlines that the Constitutional Court set aside the regulatory framework governing the institution of assessors as laid down in the 2001 Act. It further stresses that the Constitutional Court did not exclude the possibility that assessors or similar officers could exercise judicial powers provided they had the requisite guarantees of independence (...). The Constitutional Court, referring to international standards, pointed to the variety of possible solutions for allowing adjudication by persons other than judges. In this connection, the Court notes that its task in the present case is not to rule in abstracto on the compatibility with the Convention of the institution of assessors or other similar officers which exist in certain Member States of the Council of Europe, but to examine the manner in which Poland regulated the status of assessors.

53. Having regard to the foregoing, the Court considers that the assessor B.R.-G. lacked the independence required by Article 6 § 1 of the Convention, the reason being that she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister (...). It is not necessary to consider other aspects of the status of assessors since their removability by the executive is sufficient to vitiate the independence of the Lesko District Court which was composed of the assessor B.R.-G.”

The first element of the Court’s test in the Henryk Urban and Ryszard Urban judgment concentrated on the institutional deficiency as regards the position of assessors vis-à-vis the Minister of Justice – Prosecutor General. However, in its analysis the Court also had regard to the second element of the test, namely whether the circumstances of a particular case could give rise to legitimate grounds for believing that the Minister of Justice – Prosecutor General had taken an interest in the proceedings (see Henryk Urban and Ryszard Urban, cited above, § 56).

As regards the issue of just satisfaction, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non pecuniary damage which may have been sustained by the applicants (see Henryk Urban and Ryszard Urban, cited above, § 62). Moreover, having regard to the reasons underlying its finding of a violation and to the principle of legal certainty the Court found no grounds which would require it to direct the reopening of the case (see Henryk Urban and Ryszard Urban, cited above, § 56, §§ 63-66). This is the Court’s general approach in assessors’ cases to the issue of just satisfaction unless the existence of specific circumstances is shown in a particular case.

“67. (...) It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities – which decided to abolish the office of assessor altogether – within the time-frame allotted by the Constitutional Court (...). Having regard to the above, it may be noted that the authorities of the respondent State took the requisite remedial measures in order to address and remedy the deficiency underlying the present case.”

As regards costs and expenses, the Court found that there was no justification for awarding legal costs under Article 41 (Henryk Urban and Ryszard Urban, cited above, § 70).

In the present case the Court cannot discern any circumstances which could give rise to an assumption that the Minister of Justice Prosecutor General may have been taking an interest in the proceedings against the applicant and therefore the issue in the present case is limited to the institutional deficiency regarding the status of assessors. In the circumstances of the present case the Court accepts that the Government are not required to offer any compensation to the applicant in light of the Henryk Urban and Ryszard Urban v. Poland judgment.

The Court has carefully examined the terms of the Government’s declaration. It observes that their declaration contains a clear acknowledgment of a breach of Article 6 § 1 of the Convention and refers to the adoption of the Law on the National School for the Judiciary and the Prosecution Service which abolished the institution of assessors (see relevant domestic law above). Having regard to the nature of the admissions contained in the Government’s declaration as well as the absence of any factors which could distinguish the present case from the Court’s approach in the case of Henryk Urban and Ryszard Urban v. Poland the Court considers that it is no longer justified to continue the examination of the application in so far as it concerns the complaint related to the lack of independence of the assessor (Article 37 § 1 (c); see, for the relevant principles Tahsin Acar v. Turkey (preliminary issue) [GC], cited above).

In light of all the above considerations, 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 the complaint at issue (Article 37 § 1 in fine).

Accordingly, it is appropriate to strike the application out of the list in so far as it concerns the complaint related to the lack of independence of the assessor.

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.

The Government argued that the applicant had not exhausted domestic remedies. The applicant’s complaint under section 5 of the 2004 Act was left unexamined by the Gliwice Regional Court as he had failed to pay the required court fee of PLN 100 despite having been requested to rectify that shortcoming. Therefore, the applicant had not made appropriate use of the remedy provided for by section 5 of the 2004 Act.

The Court recalls that it has found a complaint under section 5 of the 2004 Act to be an effective remedy in respect of grievances of excessive length of judicial proceedings in Poland (see, Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42, ECHR 2005 V). It has also held that the court fee of PLN 100 did not appear to be excessive and did not constitute an unreasonable restriction on the right to lodge a complaint under the 2004 Act (see, Charzyński, cited above, § 38). The applicant lodged a complaint under section 5 on one occasion in 2007; however, he failed to pay the court fees, which resulted in the court leaving it unexamined. There is no indication that the applicant applied for exemption from this fee or that he lodged another complaint about the length of the proceedings under the 2004 Act. Accordingly, the applicant did not make use of the relevant remedy in compliance with the formal requirements laid down in domestic law (see, mutatis mutandis, Komorowska v. Poland (dec.), no. 38226/03, 10 June 2008; and Drużkowski v. Poland, no. 24676/07, § 41, 1 December 2009).

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Invoking Article 6 § 1 of the Convention, the applicant alleged that the proceedings against him had been unfair and that the courts had arbitrarily assessed the evidence. Furthermore, the Regional Court did not respond to the arguments raised in his appeal. The applicant also complained that he could not appeal against the Gliwice Regional Court’s decision of 18 November 2008 dismissing his request for the withdrawal of judges. Lastly, the applicant complained that he could not lodge a cassation appeal because he had been sentenced to a suspended prison term.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Decides to strike the application out of its list of cases in so far as it relates to the complaint concerning the lack of independence of the assessor in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Waldemar DUDA v Poland - 25543/09 [2012] ECHR 364 (14 February 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/364.html Cite as: [2012] ECHR 364